AMENDMENT TO SECOND AMENDMENT TO AMENDED,
RESTATED AND CONSOLIDATED CREDIT AGREEMENT
AMENDMENT TO SECOND AMENDMENT dated as of October 15, 2001
(this "Amendment") with respect to the Second Amendment, dated as of April 29,
2001 (the "Second Amendment"), to Amended, Restated and Consolidated Credit
Agreement dated as of October 12, 1999 (as amended, the "Credit Agreement") by
and among American Skiing Company ("American Skiing") and the other borrowers
party thereto (collectively, the "Borrowers"), the lenders party thereto (the
"Lenders") and Fleet National Bank, N.A. (formerly known as BankBoston, N.A.),
as agent (the "Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the Credit Agreement, the Lenders have
made Loans and other financial accommodations to the Borrowers which remain
outstanding; and
WHEREAS, the Borrowers have requested that the Agent and the
Lenders amend the Second Amendment as set forth herein, and the Agent and the
Lenders are willing to do so, but only on the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Defined Terms. Unless otherwise defined herein,
capitalized terms used herein have the meanings assigned in the Credit
Agreement.
ARTICLE II
AMENDMENTS
Section 2.1. Amendment to Section 4.1 (Closing Date). Section
4.1 of the Second Amendment is hereby amended by (i) deleting the date "August
15, 2001" and inserting in lieu thereof the date "August 30, 2001" and (ii)
deleting the phrase "and (y) as of October 15, 2001, if the consummation of
either (i) the Sale/Leaseback Transaction or (ii) the Gondola Guarantee has not
occurred on or prior to such date" and inserting in lieu thereof the following
phrase: ", (y) as of October 31, 2001, if the Borrowers shall fail to have a
commitment with respect to the Sale/Leaseback Transaction and (z) as of November
30, 2001, if the consummation of either (i) the Sale/Leaseback Transaction or
(ii) the Gondola Guarantee has not occurred on or prior to such date".
ARTICLE III
CLOSING DATE
Section 3.1 Closing Date. This Amendment shall become
effective as of the date hereof upon receipt by the Agent of counterparts of
this Amendment, duly executed and delivered by the Borrowers, the Agent and the
requisite Lenders.
ARTICLE IV
INTERPRETATION
Section 4.1. Continuing Effect of the Credit Agreement. The
Borrowers, the Agent and each Lender hereby acknowledges and agrees that the
Credit Agreement and the Second Amendment shall continue to be and shall remain
unchanged and in full force and effect in accordance with its terms, except as
expressly modified hereby.
Section 4.2. No Waiver. Nothing contained in this Amendment
shall be construed or interpreted or is intended as a waiver of any Default or
Event of Default or of any rights, powers, privileges or remedies that the Agent
or the Lenders have or may have under the Credit Agreement or the Second
Amendment, any other related document or applicable law on account of such
Default or Event of Default.
ARTICLE V
MISCELLANEOUS
Section 5.1. Representations and Warranties. The Borrowers
hereby represent and warrant as of the date hereof that, after giving effect to
this Amendment, (a) no Default or Event of Default has occurred and is
continuing, and (b) all representations and warranties of the Borrowers
contained in the Credit Agreement are true and correct in all material respects
with the same effect as if made on and as of such date.
Section 5.2. Payment of Fees and Expenses. The Borrowers
hereby agree to pay or reimburse the Agent on demand for all its reasonable
out-of-pocket costs and expenses incurred in connection with the preparation and
execution of this Amendment, including, without limitation, the reasonable fees
and disbursements of counsel to the Agent.
Section 5.3. Counterparts. This Amendment may be executed by
the parties hereto in any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
Section 5.4. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE COMMONWEALTH OF
MASSACHUSETTS.
Section 5.5. Reservation of Rights. Notwithstanding anything
contained in this Amendment, the Borrowers acknowledge that the Agent and the
Lenders do not waive, and expressly reserve, the right to exercise, at any time,
any and all of their rights and remedies under the Credit Agreement, the Second
Amendment, any other related document and applicable law on account of any
Default or Event of Default.
Section 5.6. Waiver. The Borrowers hereby release, waive, and
forever relinquish all claims, demands, obligations, liabilities and causes of
action of whatever kind or nature, whether known or unknown, which any of them
have, may have, or might assert at the time of execution of this Amendment or in
the future against the Agent, the Lenders and/or their respective parents,
affiliates, participants, officers, directors, employees, agents, attorneys,
accountants, consultants, successors and assigns (collectively, the "Lender
Group"), directly or indirectly, which occurred, existed, was taken, permitted
or begun prior to the execution of this Amendment, arising out of, based upon,
or in any manner connected with (i) any transaction, event, circumstance,
action, failure to act or occurrence of any sort or type, whether known or
unknown, with respect to the Credit Agreement, any other Lender Agreement and/or
the administration thereof or the obligations created thereby; (ii) any
discussions, commitments, negotiations, conversations or communications with
respect to the refinancing, restructuring or collection of any obligations
related to the Credit Agreement, any other Lender Agreement and/or the
administration thereof or the obligations created thereby, or (iii) any matter
related to the foregoing; provided, however, that the provisions of this Section
5.6 shall not apply to any such matters of which the Borrowers are presently
unaware and which constitute or result from the gross negligence and/or willful
misconduct of any member of the Lender Group.
2
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their proper and duly authorized
officers as of the date first above written.
AMERICAN SKIING COMPANY
By:/s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Chief Financial Officer
SUNDAY RIVER SKIWAY CORPORATION
By:/s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Chief Financial Officer
SUNDAY RIVER LTD.
By:/s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Chief Financial Officer
PERFECT TURN, INC.
By:/s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Chief Financial Officer
SUNDAY RIVER TRANSPORTATION INC.
By:/s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Chief Financial Officer
L.B.O. HOLDING, INC.
By:/s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Chief Financial Officer
SUGARBUSH RESORT HOLDINGS, INC.
By:/s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Chief Financial Officer
SUGARBUSH LEASING COMPANY
By:/s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Chief Financial Officer
S-K-I, LTD.
By:/s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Chief Financial Officer
KILLINGTON, LTD.
By:/s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Chief Financial Officer
MOUNT SNOW LTD.
By:/s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Chief Financial Officer
PICO SKI AREA MANAGEMENT COMPANY
By:/s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Chief Financial Officer
RESORT SOFTWARE SERVICES, INC.
By:/s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Chief Financial Officer
KILLINGTON RESTAURANTS, INC.
By:/s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Chief Financial Officer
DOVER RESTAURANTS, INC.
By:/s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Chief Financial Officer
SUGARLOAF MOUNTAIN CORPORATION
By:/s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Chief Financial Officer
MOUNTAINSIDE
By:/s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Chief Financial Officer
ASC UTAH
By:/s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Chief Financial Officer
STEAMBOAT SKI & RESORT CORPORATION
By:/s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Chief Financial Officer
HEAVENLY SKI & RESORT CORPORATION
By:/s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Chief Financial Officer
HEAVENLY CORPORATION
By:/s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Chief Financial Officer
HEAVENLY VALLEY, LIMITED PARTNERSHIP
By: Heavenly Corporation, its general partner
By:/s/ Xxxx X. Xxxxxx
--------------------------------------
Title: Chief Financial Officer
FLEET NATIONAL BANK (successor in interest to
BankBoston, N.A.), as Agent
By:/s/ Xxxxxx Xxxxxx
--------------------------------------
Title: Vice President
FLEET NATIONAL BANK (successor in interest
to BankBoston, N.A.), as a Lender
By:/s/ Xxxxxx Xxxxxx
--------------------------------------
Title: Vice President
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as a Lender
By:
--------------------------------------
Title:
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
successor by merger to First
Security Bank, N.A., as a Lender
By:
--------------------------------------
Title:
U.S. BANK NATIONAL ASSOCIATION, as a Lender
By: /s/ Illegible
--------------------------------------
Title:
THE XXXXXX BANK, N.A., as a Lender
By:
--------------------------------------
Title:
BLACK DIAMOND CLO 1998-1 LTD., as a Lender
By:/s/ Illegible
--------------------------------------
Title:Director
BLACK DIAMOND CLO 2000-1 LTD., as a Lender
By:/s/ Illegible
--------------------------------------
Title: Director
BLACK DIAMOND INTERNATIONAL FUNDING, LTD.,
as a Lender
By:/s/ Illegible
--------------------------------------
Title:Director
By:
--------------------------------------
Title:
XXXXXXX XXXXX PRIME RATE PORTFOLIO,
as a Lender
By: Xxxxxxx Xxxxx Investment Managers, L.P.,
as Investment Advisor
By: /s/ Xxxxxxx Xxxxx
--------------------------------------
Title: Authorized Signatory
DEBT STRATEGIES FUND, INC., as a Lender
By: /s/ Xxxxxxx Xxxxx
--------------------------------------
Title: Authorized Signatory
CAPTIVA II FINANCE LTD., as a Lender
By:
--------------------------------------
Title:
KZH-PAMCO LLC, as a Lender
By: /s/ Xxxxx Xxx
--------------------------------------
Title: Authorized Agent
KZH HIGHLAND-2 LLC, as a Lender
By: /s/ Xxxxx Xxx
--------------------------------------
Title: Authorized Agent
XXX CAPITAL FUNDING L.P., as a Lender
By: Highland Capital Management, L.P.,
as Collateral Manager
By:
--------------------------------------
Title:
PAMCO CAYMAN, LTD., as a Lender
By: Highland Capital Management, L.P.,
as Collateral Manager
By:
--------------------------------------
Title:
XXX XXXXXX PRIME RATE INCOME TRUST,
as a Lender
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Title: Executive Director
GLENEAGLES TRADING LLC, as a Lender
By: /s/ Xxx X. Xxxxxx
--------------------------------------
Title: Assist. Vice President
SRV-HIGHLAND, INC., as a Lender
By: /s/ Xxx X. Xxxxxx
--------------------------------------
Title: Assist. Vice President
LONG LANE MASTER TRUST IV, as a Lender
By:
--------------------------------------
Title:
