EXHIBIT 10.68
FIRST AMENDMENT
TO
SECURITIES PURCHASE AGREEMENT
FIRST AMENDMENT, dated as of July 25, 1997, to the SECURITIES
PURCHASE AGREEMENT, dated as of July 2,1997 (as amended, supplemented or
otherwise modified from time to time the "Agreement"), among ASC Holdings, Inc.,
a Maine corporation (the "Company"), and XXXXXXXXX LLC, a New York limited
liability company, as Purchaser (the "Purchaser").
Preamble
The Company and the Purchaser desire to amend the Agreement to
provide, inter alia, (i) that $11 million of the proceeds from the sale of the
Securities (as defined in the Agreement) may, subject to certain conditions, be
used to pay a deposit with respect to the proposed acquisition by the Company of
the Steamboat Ski Resort and the Heavenly Valley Ski Resort, (ii) for the
payment of certain fees to the Purchaser in connection with the First Amendment
and (iii) the Purchaser with certain rights with respect to future financings by
the Company or its Subsidiaries.
Accordingly, the Company and the Purchaser hereby agree as follows:
1. Definitions. All terms used herein which are defined in the
Agreement and not otherwise defined herein are used herein as defined therein.
2. New Definition. The following definitions are hereby added to
Section 1.01 of the Agreement in their appropriate alphabetical place:
"Deposit" shall mean $11 million of the proceeds of the Initial
Closing used by the Company to make a deposit with respect to the
Second Acquisition.
"First Amendment" shall mean the First Amendment, dated as of July
25, 1997, to the Agreement.
"Second Acquisition" shall mean the proposed acquisition by the
Company of the Steamboat Ski Resort and the Heavenly Valley Ski
Resort.
3. Use of Proceeds. (a) Subclause (d) of the first sentence of
Section 2.7 of the Loan Agreement is hereby amended to insert the following
after "(d)" and before "up to $5 million":
"(i) $11 million to be used by the Company to pay the Deposit or
(ii) if the Company does not pay the Deposit, "
4. Fees. The Agreement is hereby amended by adding the following
Section 2.13 after Section 2.12 thereof:
"2.13 Amendment Fee. The Company shall pay to the Purchaser on the
earlier of (A) October 31, 1997 or (B) the date of consummation of
an Initial Public Offering or the Second Acquisition either (i)
$150,000 in the event that either (w) an Initial Public Offering is
consummated on or prior to October 31, 1997 or (x) the Second
Acquisition is consummated on or prior to October 31, 1997, or (ii)
$350,000 in the event that neither (y) an Initial Public Offering is
consummated prior to October 31, 1997 nor (z) the Second Acquisition
is consummated on or prior to October 31, 1997.
5. Covenants. Section 6 of the Agreement is hereby amended to
include the following additional covenants:
"6.26 Deposit Forfeit. If the Second Acquisition is not consummated
by the Company, and the Deposit is forfeited, then within twelve
(12) months from the date the Deposit is forfeited the Company
shall, or shall cause ASC to, raise $11 million to be contributed as
capital to the Company's Utah Subsidiaries for the development of
the properties acquired in the Wolf Mountain Acquisition."
"6.27 Right of First Refusal. The Purchaser shall have the right of
first refusal to participate, in whole or in part, in all financings
by the Company or any of its Subsidiaries involving capital
contributions or borrowed moneys in excess of $5,000,000 proposed
during the twelve (12) months following the date of the First
Amendment, upon the same terms and conditions as other participants
therein, or if there are no other participants upon terms and
conditions available to the Company from other sources, other than:
(i) an Initial Public Offering, (ii) Non-Recourse Real Estate Debt
and (iii) refinancing of Existing Indebtedness with TFC Textron,
(iv) senior secured borrowings provided by financial institutions or
(v) purchase money borrowing from traditional purchase money
lenders."
6. Conditions to Effectiveness. This First Amendment shall be deemed
effective as of July 25, 1997, subject to the satisfaction in full, or the
waiver by the Purchaser, of the following conditions precedent (such date being
herein called the "Effective Date"):
(a) The Purchaser shall have received a counterpart of this
First Amendment executed by the Company.
(b) The Purchaser shall have received from Xxxxxx Xxxxxx,
special counsel to ASCH, a favorable legal opinion dated as of the date
hereof and addressed to the Purchaser, covering the matters specified in
the attached Exhibit A and such other matters incident to the transactions
contemplated herein as the Purchaser may request.
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(c) The representations and warranties contained in this First
Amendment and in Section 4 of the Agreement shall be correct in all
material respects on and as of the Effective Date as though made on and as
of such date (except where such representations and warranties relate to
an earlier date in which case such representations and warranties shall be
true and correct as of such earlier date); no Default or Event of Default
shall have occurred and be continuing on the Effective Date or result from
this First Amendment becoming effective in accordance with its terms.
7. Representations and Warranties. The Company hereby represents and
warrants to the Purchaser as follows:
(a) The execution and delivery and performance by the Company
of this First Amendment and the performance by the Company of the
Agreement as amended hereby (A) have been duly authorized by all necessary
corporate action, and (B) do not and will not contravene its
organizational documents or any applicable law.
(b) This First Amendment and the Agreement, as amended hereby,
constitute the legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as
such enforceability may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium or similar laws of general applicability
affecting the enforcement of creditors' rights and (b) the application of
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(c) The representations and warranties contained in Section 4
of the Agreement are correct on and as of the Effective Date as though
made on and as of the Effective Date (except to the extent such
representations and warranties expressly relate to an earlier date), and
no Event of Default has occurred and is continuing on and as of the
Effective Date.
8. Continued Effectiveness of Agreement. The Company hereby (i)
confirms and agrees that the Agreement to which it is a party is, and shall
continue to be, in full force and effect and is hereby ratified and confirmed in
all respects except that on and after the Effective Date of this First Amendment
all references in any related document to "the Agreement", the "Securities
Purchase Agreement", "thereto", "thereof", "thereunder" or words of like import
referring to the Agreement shall mean the Agreement as amended by this First
Amendment.
9. Miscellaneous.
(a) This First Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
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(b) Section and paragraph headings herein are included for
convenience of reference only and shall not constitute a part of this First
Amendment for any other purpose.
(c) This First Amendment shall be governed by, and construed
in accordance with, the laws of the State of New York (without reference to
conflicts of laws principles thereof) and the laws of the United States of
America.
(d) The Company will pay on demand all reasonable fees, costs
and expenses of the Purchaser in connection with the preparation, execution and
delivery of this First Amendment, including, without limitation, reasonable
legal fees and disbursements.
COMPANY
ASC HOLDINGS, INC.
By /s/ Xxxxxxxxxxx X. Xxxxxx
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Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President and
Chief Executive Officer
PURCHASER
XXXXXXXXX LLC
By /s/ Xxx Xxxxxxxxx
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Name:
Title:
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