This SUPPLEMENTAL INDENTURE NO. 4 to INDENTURE (this "Supplemental
Indenture") is entered into among Booth Creek Ski Holdings, Inc., a Delaware
corporation (the "Company") and Booth Creek Ski Acquisition, Inc. ("Acquisition
Sub"), a Pennsylvania corporation, and Marine Midland Bank, a New York banking
corporation and trust company, as Trustee (the "Trustee").
RECITALS
WHEREAS, the Company, the Guarantors and the Trustee have entered
into that certain Indenture dated as of March 18, 1997, as amended by
Supplemental Indenture No. 1 dated as of April 25, 1997, Supplemental Indenture
No. 2 dated as of February 20, 1998 and Supplemental Indenture No. 3 dated as of
February 26, 1998 (the "Indenture") providing for the issuance and delivery by
the Company of its 12 1/2% Senior Notes due 2007;
WHEREAS, the Company has entered into certain
financing and related transactions;
WHEREAS, Acquisition Sub has become a Restricted
Subsidiary of the Company;
WHEREAS, pursuant to Section 4.14 of the Indenture, any Restricted
Subsidiary with assets or stockholder's equity in excess of $20,000 is required
to become a Guarantor under the Indenture; and
WHEREAS, Article 10 of the Indenture provides for the terms and
conditions of the guarantee of the obligations of the Company under the
Indenture by the Restricted Subsidiaries of the Company.
NOW THEREFORE, in consideration of the mutual agreements contained
herein and for other good and valuable consideration, the receipt and adequacy
of which is hereby acknowledged, the parties hereto agree as follows for the
benefit of each other party and for the equal and ratable benefit of the Holders
of the Company's 12% Senior Notes due 2007:
Section 1. GUARANTEE.
For value received. Acquisition Sub hereby agrees to become a
party to the Indenture as a Guarantor under and pursuant to Article 10 of the
Indenture and to jointly and severally unconditionally guarantee to each Holder
and the Trustee (a) the due and punctual payment of the principal of, and
premium, if any, and interest on each Note, when and as
the same shall become due and payable, whether at maturity, by acceleration or
otherwise, the due and punctual payment of interest (including Additional
Interest) on the overdue principal of, and premium, if any, and interest, and
the due and punctual performance of all other obligations of the Company to the
Holders or the Trustee, all in accordance with the terms set forth in such Note
and Article 10 of the Indenture, and (b) in case of any extension of time of
payment or renewal of any Notes or any of such other Obligations, that the same
will be promptly paid in full when due or performed in accordance with the terms
of the extension or renewal, whether at stated maturity, by acceleration or
otherwise. Acquisition Sub further agrees that its obligations under Article 10
of the Indenture shall be absolute and unconditional, irrespective of, and shall
be unaffected by, any invalidity, irregularity or unenforceability of any such
Note or the Indenture, any failure to enforce the provisions of any such Note or
the Indenture, any waiver, modification or indulgence granted to the Company
with respect thereto by the Holder of such Note or the Trustee, or any other
circumstances which may otherwise constitute a legal or equitable discharge of a
surety or such Guarantor.
Section 2. MISCELLANEOUS.
2.1. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED
TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO
THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE.
2.2. Confirmation of the Indenture. Except as amended hereby, the
Indenture shall remain in full force and effect and is hereby ratified and
confirmed in all respects.
2.3. Multiple Counterparts. The parties may sign multiple
counterparts of this Supplemental Indenture. Each signed counterpart shall be
deemed an original, but all of them together represent one and the same
agreement.
2.4. Separability. Each provision of this Supplemental Indenture
shall be considered separable and if for any reason any provision which is not
essential to the effectuation of the basic purpose of this Supplemental
Indenture shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
2.5. Headings. The captions of the various section headings of this
Supplemental Indenture have been inserted for convenience of reference only, are
not to be considered a part hereof, and shall in no way modify or restrict any
of the terms or provisions hereof.
2.6. The Trustee. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Company and Acquisition Sub.
2.7. Definitions. All terms defined in the Indenture shall have
the same meaning in this Supplemental Indenture unless otherwise defined herein.
IN WITNESS WHEREOF, the parties hereto caused this Supplemental
Indenture to be duly executed as of this 8th day of October, 1998.
BOOTH CREEK SKI HOLDINGS, INC
By: /s/ XXXXXXX X. XXXXX
--------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President
BOOTH CREEK SKI ACQUISITION. INC.
By: /s/ XXXXXXX X. XXXXX
--------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President
MARINE MIDLAND BANK, as Trustee
By: /s/XXXXXX X. XXXXXX
---------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
