SIXTH SUPPLEMENTAL INDENTURE
Dated as of October 22, 2004
among
AMERICAN SKIING COMPANY
and
THE BANK OF NEW YORK,
as successor to
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee,
and
the Guarantors named herein
----------------------------------------------
Series A and Series B
12% Senior Subordinated Notes
Due 2006
SIXTH SUPPLEMENTAL INDENTURE
SIXTH SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"),
dated as of October 22, 2004, among American Skiing Company, a Delaware
corporation (the "Company"), the Guarantors listed on the signature pages hereof
under the heading Guarantors (the "Guarantors") and The Bank of New York, as
successor to United States Trust Company of New York, as trustee under the
Indenture referred to below (the "Trustee").
WHEREAS, pursuant to the Indenture, dated as of June 28, 1996,
among ASC East, Inc. ("ASC East"), the Guarantors named therein (the "Original
Guarantors"), and the Trustee (the "Original Indenture"), the Company duly
issued its 12% Senior Subordinated Notes Due 2006 (the "Notes") in the aggregate
principal amount of $120 million;
WHEREAS, the Original Indenture was amended by (i) the First
Supplemental Indenture, dated as of November 12, 1997, among the Guaranteeing
Subsidiary (as defined therein), ASC East, the Original Guarantors and the
Trustee, (ii) the Second Supplemental Indenture, dated as of September 4, 1998,
among ASC East, the Guarantors named therein and the Trustee, (iii) the Third
Supplemental Indenture, dated as of August 6, 1999 among ASC East, the
Guarantors named therein and the Trustee, (iv) the Fourth Supplemental
Indenture, dated as of October 6, 1999, among the Company, the Guarantors named
therein and the Trustee and (v) the Fifth Supplemental Indenture, dated as of
April 19, 2002, among the Company, the Guarantors named therein and the Trustee
(the Original Indenture, as so amended, the "Indenture");
WHEREAS, pursuant to Section 9.02 of the Indenture, the
Company and the Guarantors, when authorized by resolution of their respective
Boards of Directors, and the Trustee together, with the written consent of the
Holders of at least a majority in aggregate principal amount of the Notes then
outstanding, are authorized to amend or supplement the Indenture as set forth in
this Supplemental Indenture; and
WHEREAS, the Company distributed an Offer to Purchase and
Consent Solicitation Statement dated as of October 12, 2004 (the "Offer to
Purchase") in order to, among other things, make an offer to purchase (the
"Tender Offer") all outstanding Notes upon terms and conditions described in the
Offer to Purchase and to solicit consents from the Holders to amendments to the
Indenture;
WHEREAS, the Company, each of the Guarantors and the Trustee
desire and have agreed to execute and deliver this Supplemental Indenture as
herein provided and all conditions and requirements necessary to make this
Supplemental Indenture a valid, binding and legal instrument in accordance with
its terms have been performed and fulfilled and the execution and delivery
hereof have been in all respects duly authorized by all necessary parties.
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NOW THEREFORE, for and in consideration of the premises
contained herein, it is mutually covenanted and agreed for the benefit of the
Holders of the Notes, as follows:
1. Capitalized terms used herein and not otherwise defined shall
have the meanings assigned to them in the Indenture.
2. (a) This Supplemental Indenture shall become effective upon the
execution and delivery hereof by the Company, the Guarantors and
the Trustee. The amendments set forth herein will only become
operative when validly tendered Notes representing a majority of
the outstanding Notes are accepted for purchase pursuant to the
Tender Offer. If, after the date hereof, the Tender Offer is
terminated or withdrawn, all payments in respect of the Notes
accepted for payment pursuant to the Tender Offer are not made on
the applicable Payment Date (as defined in the Offer to Purchase)
in accordance with Rule 14e-1(c) under the Securities Exchange
Act of 1934, as amended, or the Tender Offer is not consummated
on or prior to January 10, 2005 (the 90th day after the launch
date of the Tender Offer), the amendments set forth herein shall
have no effect and the Indenture shall be deemed to be amended so
that it reads the same as it did immediately prior to the date
hereof.
(b) The Company will provide an Officers' Certificate to the
Trustee as evidence of the occurrence of any of the events
enumerated in Section 2(a).
3. The Indenture is hereby amended as follows:
(a) Section 1.01 is hereby amended as follows:
(i) The definitions of "Acquired Debt," "Asset Sale," "Cash
Equivalents," "Change of Control," "Consolidated Cash
Flow," "Consolidated Net Income," "Consolidated Net
Worth," "Continuing Directors," "Demand Note," "DOJ
Divestiture," "Existing Indebtedness," "Fixed Charge
Coverage Ratio," "Fixed Charges," "Independent
Director," "Investments," "Leverage Ratio," "Net
Income," "Net Proceeds," "Non-Recourse Debt,"
"Non-Recourse Real Estate Debt," "Permitted Holders,"
"Permitted Investments," "Permitted Liens," "Permitted
Real Estate Projects," "Permitted Refinancing Debt, "
"Restricted Investment," "Subordinated Note Indenture,"
"Subordinated Notes," "Subordinated Note Subsidiary
Guarantees" and "Weighted Average Life to Maturity" are
hereby deleted in their entirety.
(ii) The definition of "Disqualified Stock" is hereby
amended by deleting the phrase "if those provisions are
not more favorable to the holders of such capital stock
than the provisions contained in Sections 3.09, 4.10
and 4.15 are to the Holders".
(iii)The definition of "Unrestricted Subsidiary" is hereby
amended by deleting the following phrases: "other than
Non-Recourse Debt," "and was permitted by Section 4.07
hereof", "(and, if such Indebtedness is not permitted
to be incurred as of such date under by Section 4.09
hereof, the Company shall be in default of such
covenant)", and "(i) such Indebtedness is permitted by
Section 4.09 hereof and (ii)".
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(b) Section 1.02 is hereby amended by deleting the following
terms in their entirety: "Affiliate Transaction," "Asset
Sale Offer," "Change of Control Offer," "Change of Control
Payment," "Change of Control Payment Date," "Excess
Proceeds," "incur," "Offer Amount," "Offer Period,"
"Purchase Date," and "Restricted Payments".
(c) Section 2.06(i)(ii) is hereby amended by deleting the phrase
"4.10, 4.15" and deleting the comma before such phrase.
(d) Section 3.03 is hereby amended by deleting the phrase
"Subject to the provisions of Section 3.09 hereof," and
capitalizing the letter "a" in the word "at" immediately
subsequent to such phrase.
(e) Section 3.08 is hereby amended by deleting the phrase
"Except as set forth under Sections 4.10 and 4.15 hereof,
the" and replacing such phrase with the word "The".
(f) The text of Section 3.09 of the Indenture is hereby deleted
in its entirety and this Section shall be of no further
force and effect and the words "[INTENTIONALLY DELETED]"
shall be inserted in place of the deleted text.
(g) Section 4.03 is hereby amended in its entirety to read as
follows:
"The Company shall comply with TIA ss. 314(a)(1) through (3), to
the extent applicable."
(h) The text of Section 4.04(a) is hereby amended in its
entirety to read as follows:
"The Company shall comply with TIA ss. 314(a)(4), to the extent
applicable."
(i) The text of Sections 4.04(b) is hereby deleted in its
entirety and this Section shall be of no further force and
effect and the words "[INTENTIONALLY DELETED]" shall be
inserted in place of the deleted text.
(j) The text of Sections 4.05, 4.07, 4.08, 4.09, 4.10, 4.11,
4.12, 4.13, 4.14, 4.15, 4.16, 4.17 and 4.18 of the Indenture
is hereby deleted in its entirety and these Sections shall
be of no further force and effect and the words
"[INTENTIONALLY DELETED]" shall be inserted, in each case,
in place of the deleted text.
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(k) Section 5.01 is hereby amended by replacing the semi-colon
before clause (iii) with the word "and", replacing the
semicolon and the word "and" after clause (iii) with a
period and deleting clause (iv) in its entirety.
(l) Section 6.01 is hereby amended by deleting the text of
clauses (3), (4), (5) and (6) and by replacing such text
with the words "[INTENTIONALLY DELETED]" and by deleting the
third paragraph of such Section.
(m) Section 6.02 of the Indenture is amended by deleting the
provisions contained therein in their entirety and
substituting the following therefor:
"If an Event of Default (other than an Event of Default specified
in clauses (1), (2), (8) and (9) of Section 6.01) occurs and is
continuing, the Trustee by notice to the Company, or the Holders of at
least a majority in principal amount of the then outstanding Notes by
written notice to the Company and the Trustee may declare the unpaid
principal amount of any accrued interest on and any Liquidated Damages
due in respect of all the Notes to be due and payable immediately. If
an Event of Default specified in clauses (1) or (2) of Section 6.01
occurs and is continuing, the Trustee by notice to the Company, or the
Holders of at least 25% in principal amount of the then outstanding
Notes by written notice to the Company and the Trustee may declare the
unpaid principal amount of, any accrued interest on and any Liquidated
Damages due in respect of all the Notes to be due and payable
immediately. Upon any such declaration the principal, interest and
Liquidated Damages shall be due and payable immediately (together with
the premium referred to in Section 6.01, if applicable). If any Event
of Default specified in clause (8) or (9) of Section 6.01 relating to
the Company, any Restricted Subsidiary that would constitute a
Significant Subsidiary or any group of Restricted Subsidiaries that,
taken together, would constitute a Significant Subsidiary occurs, such
an amount shall ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any
Holder. The Holders of a majority in principal amount of the then
outstanding Notes by written notice to the Trustee may rescind an
acceleration and its consequences if the rescission would not conflict
with any judgment or decree and if all existing Events of Default
(except nonpayment of principal, interest or Liquidated Damages that
has become due solely because of the acceleration) have been cured or
waived."
(n) Section 8.03 is hereby amended by deleting the phrase ",
4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17,
4.18", and by deleting the phrase "Sections 6.01(4) through
6.01(7) shall not constitute Events of Default" and
replacing it with the phrase "Section 6.01(7) shall not
constitute an Event of Default."
(o) Section 9.01 is hereby amended by deleting the text of
clause (d) and by replacing such text with the words
"[INTENTIONALLY DELETED]".
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(p) Section 9.02 is hereby amended by deleting the phrase
"(including, Sections 3.09, 4.10 and 4.15 hereof)" in the
first paragraph and by deleting the phrase "(except as
provided above with respect to Sections 4.10 and 4.15
hereof)" in clauses (b) and (g) of the fourth paragraph.
(q) Section 11.03(b) is hereby amended by replacing the
semicolon before clause (ii) with the word "and", deleting
the phrase "(iii) such Guarantor, or any other Person formed
by or surviving any such consolidation or merger, would have
Consolidated Net Worth (immediately after giving effect to
such transactions) equal to or greater than the Consolidated
Net Worth of such Guarantor immediately preceding the
transaction; and (iv) the Company would be permitted by
virtue of the Company's pro forma Fixed Charge Coverage
Ratio, immediately after giving effect to such transaction,
to incur at least $1.00 of additional Indebtedness pursuant
to the Fixed Charge Coverage Ratio test set forth in Section
4.09 hereof;" and deleting from the last paragraph of
Section 11.03(b) the phrase "provided that such sale would
be permitted under Section 4.10 hereof and the Net Proceeds
of such sale or other disposition are applied in accordance
with the applicable provisions of Section 4.10 hereof" and
the semicolon before such phrase.
(r) Section 11.04 is hereby amended by deleting from the first
sentence the phrase "provided that in the event of an Asset
Sale, such Asset Sale would be permitted under Section 4.10
hereof and the Net Proceeds from such sale or other
disposition are treated in accordance with the provisions of
Section 4.10 hereof", deleting the semicolon before such
phrase and by deleting from the second sentence the phrase
"including without limitation Section 4.10 hereof,".
4. The Company agrees that the Trustee is permitted to place a
notation about this Supplemental Indenture on the Notes in
accordance with the provisions of Section 9.05 of the Indenture.
5. The Trustee accepts this Supplemental Indenture and agrees to
execute the trust created by the Indenture as hereby
supplemented, but only upon the terms and conditions set forth in
the Indenture, including the terms and provisions defining and
limiting the liabilities and responsibilities of the Trustee,
which terms and provisions shall in like manner define and limit
its liabilities and responsibilities in the performance of the
trust created by the Indenture as hereby supplemented.
6. The Indenture, supplemented as hereinabove set forth, is in all
respects ratified and confirmed, and the terms and conditions
thereof, supplemented as hereinabove set forth, shall be and
remain in full force and effect.
7. The recitals contained in this Supplemental Indenture shall be
taken as the statements made solely by the Company and the
Guarantors, and the Trustee shall have no liability or
responsibility for their correctness and, without limiting the
generality of the foregoing, the Trustee shall not be responsible
in any manner whatsoever for or with respect to (i) the validity
or sufficiency of this Supplemental Indenture or any of the terms
or provisions hereof, (ii) the proper authorization hereof by the
Company and the Guarantors by corporate action or otherwise,
(iii) the due execution hereof by the Company and the Guarantors
or (iv) the consequences (direct or indirect and whether
deliberate or inadvertent) of any amendment herein provided for,
and the Trustee makes no representation with respect to any such
matters.
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8. Each Note Certificate evidencing Global Notes and Certificated
Notes (and all notes issued in exchange therefor or substitution
thereof) issued after the date that the amendments of the
Indenture set forth herein become operative shall bear a legend
substantially in the following form: "Pursuant to the Sixth
Supplemental Indenture, dated October 22, 2004, certain of the
provision of the Indenture were amended including the deletion,
among other things, of the provisions relating to mandatory
redemption and repurchase at the option of the holder and this
Note is deemed amended consistent therewith."
In the event that the amendments cease to be operative, Global
Notes issued after the date of receipt of the Trustee of an Officers'
Certificate to such effect shall be deemed to correspond to the
Indenture so that it reads the same as it did immediately prior to the
date hereof and Certificated Notes issued after the date of receipt of
the Trustee of an Officers' Certificate to such effect shall cease to
bear such a legend.
9. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, BUT
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF
LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
10. This Supplemental Indenture may be signed in any number of
counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same
instrument.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed and attested, all as of the date
first above written.
AMERICAN SKIING COMPANY
By:_/s/ Xxxxxx X Xxxxxxx, Jr_
Name: Xxxxxx X Xxxxxxx, Xx
Title: Senior Vice President and
General Counsel
Guarantors
AMERICAN SKIING COMPANY RESORT PROPERTIES, INC.
By:_/s/ Xxxxxx X Xxxxxxx, Jr_
Name: Xxxxxx X Xxxxxxx, Xx
Title: Senior Vice President and
General Counsel
THE CANYONS RESORT PROPERTIES, INC.
By:_/s/ Xxxxxx X Xxxxxxx, Jr_
Name: Xxxxxx X Xxxxxxx, Xx
Title: Senior Vice President and
General Counsel
WHISPER RIDGE, INC.(f/k/a ATTITASH RESORT
PROPERTIES, INC.)
By:_/s/ Xxxxxx X Xxxxxxx, Jr_
Name: Xxxxxx X Xxxxxxx, Xx
Title: Senior Vice President and
General Counsel
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SUNDAY RIVER SKIWAY CORPORATION
By:_/s/ Xxxxxx X Xxxxxxx, Jr_
Name: Xxxxxx X Xxxxxxx, Xx
Title: Senior Vice President and
General Counsel
SUNDAY RIVER, LTD.
By:_/s/ Xxxxxx X Xxxxxxx, Jr_
Name: Xxxxxx X Xxxxxxx, Xx
Title: Senior Vice President and
General Counsel
PERFECT TURN, INC.
By:_/s/ Xxxxxx X Xxxxxxx, Jr_
Name: Xxxxxx X Xxxxxxx, Xx
Title: Senior Vice President and
General Counsel
LBO HOLDINGS, INC.
By:_/s/ Xxxxxx X Xxxxxxx, Jr_
Name: Xxxxxx X Xxxxxxx, Xx
Title: Senior Vice President and
General Counsel
GRAND SUMMIT RESORT PROPERTIES, INC.
(f/k/a LBO HOTEL CO.)
By:_/s/ Xxxxxx X Xxxxxxx, Jr_
Name: Xxxxxx X Xxxxxxx, Xx
Title: Senior Vice President and
General Counsel
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S-K-I LIMITED
By:_/s/ Xxxxxx X Xxxxxxx, Jr_
Name: Xxxxxx X Xxxxxxx, Xx
Title: Senior Vice President and
General Counsel
KILLINGTON LTD.
By:_/s/ Xxxxxx X Xxxxxxx, Jr_
Name: Xxxxxx X Xxxxxxx, Xx
Title: Senior Vice President and
General Counsel
MOUNT SNOW LTD.
By:_/s/ Xxxxxx X Xxxxxxx, Jr_
Name: Xxxxxx X Xxxxxxx, Xx
Title: Senior Vice President and
General Counsel
SUGARLOAF MOUNTAIN CORPORATION
By:_/s/ Xxxxxx X Xxxxxxx, Jr_
Name: Xxxxxx X Xxxxxxx, Xx
Title: Senior Vice President and
General Counsel
KILLINGTON RESTAURANTS, INC.
By:_/s/ Xxxxxx X Xxxxxxx, Jr_
Name: Xxxxxx X Xxxxxxx, Xx
Title: Senior Vice President and
General Counsel
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DOVER RESTAURANTS, INC.
By:_/s/ Xxxxxx X Xxxxxxx, Jr_
Name: Xxxxxx X Xxxxxxx, Xx
Title: Senior Vice President and
General Counsel
MOUNTAINSIDE
By:_/s/ Xxxxxx X Xxxxxxx, Jr_
Name: Xxxxxx X Xxxxxxx, Xx
Title: Senior Vice President and
General Counsel
PICO SKI AREA MANAGEMENT COMPANY
By:_/s/ Xxxxxx X Xxxxxxx, Jr_
Name: Xxxxxx X Xxxxxxx, Xx
Title: Senior Vice President and
General Counsel
BLUNDER BAY DEVELOPMENT CO.
By:_/s/ Xxxxxx X Xxxxxxx, Jr_
Name: Xxxxxx X Xxxxxxx, Xx
Title: Senior Vice President and
General Counsel
ASC LEASING, INC.
By:_/s/ Xxxxxx X Xxxxxxx, Jr_
Name: Xxxxxx X Xxxxxxx, Xx
Title: Senior Vice President and
General Counsel
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ASC UTAH
By:_/s/ Xxxxxx X Xxxxxxx, Jr_
Name: Xxxxxx X Xxxxxxx, Xx
Title: Senior Vice President and
General Counsel
STEAMBOAT SKI & RESORT CORPORATION
By:_/s/ Xxxxxx X Xxxxxxx, Jr_
Name: Xxxxxx X Xxxxxxx, Xx
Title: Senior Vice President and
General Counsel
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XXX XXXX XX XXX XXXX, as Trustee
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President