THIRD AMENDMENT
THIRD AMENDMENT, dated as of September 21, 2004 (this
"Amendment"), to the Credit Agreement, dated as of February 14, 2003, as amended
by the First Amendment, dated as of July 2, 2003 and the Second Amendment, dated
as of May 14, 2004 (the "Credit Agreement"), among AMERICAN SKIING COMPANY
("ASC"), the Subsidiary Borrowers (as defined in the Credit Agreement) from time
to time parties thereto, the several banks and other financial institutions from
time to time parties thereto (the "Lenders"), and GENERAL ELECTRIC CAPITAL
CORPORATION ("GECC"), as administrative agent for the Lenders thereunder (in
such capacity, the "Administrative Agent").
W I T N E S S E T H :
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WHEREAS, the Borrowers have requested that the Lenders agree
to amendments to certain provisions of the Credit Agreement; and
WHEREAS, the Lenders are willing to agree to the requested
amendments, on and subject to the terms and conditions contained herein;
NOW, THEREFORE, in consideration of the premises and the
agreements hereinafter set forth, the parties hereto hereby agree as follows:
1. Defined Terms. Terms used herein but not defined shall
have the meanings given to them in the Credit Agreement as amended hereby.
2. Amendment to Section 7.5 (Disposition of Property) of the
Credit Agreement. Section 7.5 of the Credit Agreement is hereby amended by
replacing clause (e) thereof in its entirety with the following:
(e) the Disposition of Non-Operating Assets for fair
market value cash consideration not to exceed $2,000,000 in
the aggregate for any fiscal year of ASC (or not to exceed
$11,000,000 in the aggregate for the fiscal year of ASC
beginning on July 26, 2004, to the extent such Non-Operating
Asset Sale Proceeds for such fiscal year are applied in
accordance with the proviso to Section 7.1(a) or to Capital
Expenditures in accordance with Section 7.7); provided that
such $2,000,000 (or $11,000,000) limit may be exceeded in any
fiscal year with the written consent of the Administrative
Agent;
3. Amendment to Section 7.7 (Capital Expenditures) of the
Credit Agreement. Section 7.7 of the Credit Agreement is hereby amended by
replacing the text of such Section in its entirety with the following:
7.7 Capital Expenditures. Make or commit to make any
Capital Expenditure, except Capital Expenditures of the
Borrowers in the ordinary course of business made while no
Event of Default has occurred and is continuing not exceeding
in any fiscal year of ASC the sum of (x) $8,500,000, (y) an
amount equal to 50% of the aggregate excess of LTM EBITDA for
each quarter of the prior fiscal year over the minimum LTM
EBITDA required by Section 7.1(a) for such quarter (without
adding in any Non-Operating Asset Sale Proceeds as specified
in the proviso to such Section) and (z) an amount equal to
Non-Operating Asset Sale Proceeds received during such fiscal
year in excess of the aggregate amount of such proceeds
applied to satisfy the minimum LTM EBITDA requirements of
Section 7.1(a) for each quarter of such fiscal year, up to a
maximum of $1,000,000 for this clause (z); provided, that any
such amount referred to above, if not so expended in the
fiscal year for which it is permitted, may be carried over for
expenditure in the first fiscal quarter of the next succeeding
fiscal year; and provided, further, that, for the fiscal year
beginning on July 26, 2004, the Borrowers shall be permitted
to make up to an additional $3,000,000 in the aggregate of
Capital Expenditures pursuant to clause (z) above (in addition
to the $1,000,000 already permitted by such clause) to the
extent of additional Non-Operating Asset Sale Proceeds
received by the Borrowers during such fiscal year meeting the
requirements of such clause, so long as such Capital
Expenditures are for the items described on Schedule 7.7, and
for each such described item, the amount expended on such item
does not exceed the amount set forth on such Schedule for such
item.
4. Addition of Schedule 7.7. The Credit Agreement is hereby
amended by adding a new Schedule 7.7 thereto, as set forth in Schedule 7.7 to
this Amendment.
5. Conditions to the Effectiveness of the Amendment. This
Amendment shall become effective as of the first date each of the conditions
precedent set forth below shall have been fulfilled:
(a) Amendment. The Administrative Agent shall have received
this Amendment, executed and delivered by a duly authorized officer of
each Borrower and the Required Lenders.
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
amendments effected hereby.
(c) Representations and Warranties. Each of the
representations and warranties made by any Loan Party in or pursuant to
the Loan Documents and herein shall be true and correct on and as such
date as if made on and as of such date after giving effect to the
amendments effected hereby.
(d) Amendment Fee. The Administrative Agent shall have
received an amendment fee of $75,000 from the Borrower, to be divided
ratably among the Lenders executing this Amendment.
6. Payment of Expenses. ASC agrees to pay or reimburse the
Administrative Agent and the Lenders for all of their reasonable out-of-pocket
costs and expenses incurred in connection with the negotiation, preparation,
execution and delivery of this Amendment and any other documents prepared in
connection herewith, and consummation of the transactions contemplated hereby
and thereby, including the fees and expenses of Xxxxxxx Xxxxxxx & Xxxxxxxx,
counsel to the Administrative Agent.
7. Loan Document; No Other Amendments.
(a) The Borrowers and the other parties hereto acknowledge and
agree that this Amendment shall constitute a Loan Document.
(b) Except as expressly amended, modified and supplemented
hereby, the provisions of the Credit Agreement are and shall remain in full
force and effect.
8. Governing Law; Counterparts. (a) This Amendment and the
rights and obligations of the parties hereto shall be governed by, and construed
and interpreted in accordance with, the laws of the State of New York.
(a) The parties hereto may execute this Amendment in any
number of separate counterparts, and all such counterparts taken together shall
be deemed to constitute one and the same instrument. This Amendment may be
delivered by facsimile transmission of the relevant signature pages hereof.
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 day and year first above written.
AMERICAN SKIING COMPANY, as a Borrower
By: /s/Xxxxxx X. Xxxxxxx, Xx.
------------------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Senior Vice President
AMERICAN SKIING COMPANY RESORT
PROPERTIES, INC.,
ASC LEASING, INC.
ASC UTAH
DOVER RESTAURANTS, INC.
KILLINGTON, LTD.
KILLINGTON RESTAURANTS, INC.
L.B.O. HOLDING, INC.
MOUNT SNOW LTD.
MOUNTAINSIDE
PERFECT TURN, INC.
PICO SKI AREA MANAGEMENT COMPANY
S-K-I LTD.
STEAMBOAT SKI & RESORT CORPORATION
SUGARLOAF MOUNTAIN CORPORATION
SUNDAY RIVER LTD. and
SUNDAY RIVER SKIWAY CORPORATION, as
Subsidiary Borrowers
By: /s/Xxxxxx X. Xxxxxxx, Xx.
------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President, General
Counsel and Secretary
GENERAL ELECTRIC CAPITAL CORPORATION, as
Administrative Agent and as a Lender
By: /s/Xxxxxxxx Xxxx
------------------------------------------
Name: Xxxxxxxx Xxxx
Title: Senior Risk Manager
CAPITALSOURCE FINANCE LLC, as a Lender
By: /s/ [illegible]
------------------------------------------
Name:
Title:
TRS 1 LLC, as a Lender
By: /s/Xxxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
COOKSMILL, as a Lender
c/o Scotiabank (Ireland) Limited
IFSC House, Xxxxxx Xxxxx Xxxx
Xxxxxx 0
Xxxxxxx
By: /s/C.H. Sinnamon
------------------------------------------
Name: C.H. Sinnamon
Title: Authorized Signatory
XXXXXXX NATIONAL LOAN INVESTORS, LTD, as a
Lender
By: /s/ [illegible]
------------------------------------------
Name:
Title:
XXXXXXX LEVERAGED LOAN INVESTORS, LTD, as
a Lender
By:
------------------------------------------
Name:
Title:
SCHEDULE 7.7
ADDITIONAL CAPITAL EXPENDITURE REQUIREMENTS
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Additional Capital Total
Expenditure Requirements (in thousands)
ST Xxxxxxx Creek Lift 1,300
XX Xxxxxx Eagle 150
KL Pipe 2,200
KL Phone Switch Upgrade 175
SL Sand/Salt Shed 175
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Grand Total 4,000
