THIRD AMENDMENT TO THE
AMENDED, RESTATED AND CONSOLIDATED CREDIT AGREEMENT
THIRD AMENDMENT dated as of September 10, 2001 (this
"Amendment") with respect to the 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 Credit Agreement 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
and the following term shall have the following meaning:
"Sugarbush Sale": the sale by Sugarbush Resorts Holdings, Inc.
to Summit Ventures NE, Inc. (or its permitted successors and assigns) of
substantially all of the assets used in, or necessary for the conduct of the
business of, operating the Sugarbush Resort and related entities, pursuant to
the terms of that certain Purchase and Sale Agreement dated as of September 7,
2001, attached hereto as Exhibit A.
ARTICLE II
AMENDMENTS
Section 2.1. Amendment to Section 1.1 (Definitions). (a)
Section 1.1 of the Credit Agreement is hereby amended by (i) deleting the
definition of Additional Revolving Credit Advances and (ii) inserting the
following definition in their proper alphabetical order:
"Additional Revolving Credit Advances" shall mean Revolving
Credit Advances in an aggregate amount not to exceed $5,200,000 the
proceeds of which are used solely to pay interest due on July 15, 2001
under the Senior Subordinated Notes; provided, however, that in the
event that the proceeds of the Sale/Leaseback Transaction (as defined
in the Second Amendment) are less than $14,000,000 (such amount, the
"Deficiency"), the Additional Revolving Credit Advances shall, upon the
consummation of said transaction, be deemed to be increased by an
amount equal to the Deficiency; provided, further, that the Additional
Revolving Credit Advances shall in no event be greater than $7,200,000.
"Third Amendment" shall mean the Third Amendment, dated as of
September 10, 2001, to the Amended, Restated and Consolidated Credit
Agreement, dated as of October 12, 1999.
(b) The definition of Maximum Revolving Credit Amount is
hereby amended by inserting at the end thereof the following:
"Notwithstanding anything to the contrary set forth above, in the event
that the Borrowers consummate the Sugarbush Sale (as defined in the
Third Amendment), the Maximum Revolving Credit Amount for each period
set forth in clause (a) above shall be deemed to be reduced by
$1,500,000.".
Section 2.2. Amendment to Section 7.5 (Minimum Consolidated
EBITDA). Section 7.5 is hereby amended by deleting said section in its entirety
and inserting in lieu thereof the following:
" (a) American Ski and its Restricted Subsidiaries shall, as of the
last day of each fiscal quarter set forth below, have Consolidated
EBITDA of not less than the amounts set forth opposite each such fiscal
quarter (calculated on a cumulative basis for the immediately preceding
four fiscal quarters):
Fiscal Quarter Amount
2001 Quarter 4 $46,500,000
2002 Quarter 1 $48,500,000
2002 Quarter 2 $37,500,000
2002 Quarter 3 $41,000,000
2002 Quarter 4 $41,500,000
2003 Quarter 1 $41,500,000
2003 Quarter 2 $43,000,000
2003 Quarter 3 $46,000,000
2003 Quarter 4 $49,000,000
2004 Quarter 1 $49,000,000
2004 Quarter 2 $51,000,000
2004 Quarter 3 $55,000,000;
provided, however, in the event the Borrowers shall fail to make the
Optional Prepayment, the Borrowers, the Agent and the Required Lenders
shall, on or before August 1, 2002, agree in writing to amend the
covenant levels for all quarterly periods beginning Q1 2003. The
failure to agree on amended covenant levels on or before August 1, 2002
shall be deemed to be an Event of Default.
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(b) Notwithstanding anything to the contrary set forth in
Section 7.5(a) above, in the event that the Borrowers consummate the
Sugarbush Sale (as defined in the Third Amendment), American Ski and
its Restricted Subsidiaries shall, as of the last day of each fiscal
quarter set forth below (beginning the first fiscal quarter following
the fiscal quarter during which the Borrowers consummate the Sugarbush
Sale), have Consolidated EBITDA of not less than the amounts set forth
opposite each such fiscal quarter (calculated on a cumulative basis for
the immediately preceding four fiscal quarters):
Fiscal Quarter Amount
2001 Quarter 4 $46,500,000
2002 Quarter 1 $47,000,000
2002 Quarter 2 $35,500,000
2002 Quarter 3 $38,500,000
2002 Quarter 4 $41,500,000
2003 Quarter 1 $41,500,000
2003 Quarter 2 $43,000,000
2003 Quarter 3 $46,000,000
2003 Quarter 4 $49,000,000
2004 Quarter 1 $49,000,000
2004 Quarter 2 $51,000,000
2004 Quarter 3 $55,000,000;
provided, however, in the event the Borrowers shall fail to make the
Optional Prepayment, the Borrowers, the Agent and the Required Lenders
shall, on or before August 1, 2002, agree in writing to amend the
covenant levels for all quarterly periods beginning Q1 2003. The
failure to agree on amended covenant levels on or before August 1, 2002
shall be deemed to be an Event of Default.".
ARTICLE III
CONSENTS; AGREEMENTS
Section 3.1. Consents. (a) The Agent and the requisite Lenders
hereby consent to the Sugarbush Sale; provided, that 100% of the net cash
proceeds of said sale shall be applied to prepay the Loans as set forth to
Section 4.1(c)(v) of the Credit Agreement, and (b) the requisite Lenders hereby
consent to the release by the Administrative Agent of all security interests
held by the Administrative Agent for the benefit of the Lenders in the assets
that are the subject of the Sugarbush Sale.
Section 3.2. Agreement. Notwithstanding anything to the
contrary set forth in the Second Amendment, the Borrowers shall be permitted to
make certain payments to Oak Hill Capital Partners, L.P., Oak Hill Securities
Fund, L.P., or any affiliate thereof on account of board of director's fees and
the associated reimbursement of expenses.
ARTICLE IV
CLOSING DATE
Section 4.1 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.
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ARTICLE V
INTERPRETATION
Section 5.1. Continuing Effect of the Credit Agreement. The
Borrowers, the Agent and each Lender hereby acknowledges and agrees that the
Credit Agreement 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 5.2. 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, any other related
document or applicable law on account of such Default or Event of Default.
ARTICLE VI
MISCELLANEOUS
Section 6.1. 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 6.2. 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 6.3. 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 6.4. 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 6.5. 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, any other
related document and applicable law on account of any Default or Event of
Default.
Section 6.6. Confirmation of Indebtedness. The Borrowers
hereby confirm and acknowledge that, as of the Closing Date, (i) the Borrowers
are truly and justly indebted to the Lenders, without defense, counterclaim or
offset of any kind and (ii) the Borrowers are liable to the Lenders in respect
of Loans and Letters of Credit in the aggregate principal amount of
$145,016,426.
Section 6.7. 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,
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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
6.7 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.
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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/ Mark J. Miller
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Title: Chief Financial Officer
SUNDAY RIVER SKIWAY CORPORATION
By:/s/ Mark J. Miller
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Title: Chief Financial Officer
SUNDAY RIVER LTD.
By:/s/ Mark J. Miller
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Title: Chief Financial Officer
PERFECT TURN, INC.
By:/s/ Mark J. Miller
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Title: Chief Financial Officer
SUNDAY RIVER TRANSPORTATION INC.
By:/s/ Mark J. Miller
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Title: Chief Financial Officer
L.B.O. HOLDING, INC.
By:/s/ Mark J. Miller
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Title: Chief Financial Officer
SUGARBUSH RESORT HOLDINGS, INC.
By:/s/ Mark J. Miller
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Title: Chief Financial Officer
SUGARBUSH LEASING COMPANY
By:/s/ Mark J. Miller
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Title: Chief Financial Officer
S-K-I, LTD.
By:/s/ Mark J. Miller
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Title: Chief Financial Officer
KILLINGTON, LTD.
By:/s/ Mark J. Miller
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Title: Chief Financial Officer
MOUNT SNOW LTD.
By:/s/ Mark J. Miller
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Title: Chief Financial Officer
PICO SKI AREA MANAGEMENT COMPANY
By:/s/ Mark J. Miller
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Title: Chief Financial Officer
RESORT SOFTWARE SERVICES, INC.
By:/s/ Mark J. Miller
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Title: Chief Financial Officer
KILLINGTON RESTAURANTS, INC.
By:/s/ Mark J. Miller
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Title: Chief Financial Officer
DOVER RESTAURANTS, INC.
By:/s/ Mark J. Miller
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Title: Chief Financial Officer
SUGARLOAF MOUNTAIN CORPORATION
By:/s/ Mark J. Miller
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Title: Chief Financial Officer
MOUNTAINSIDE
By:/s/ Mark J. Miller
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Title: Chief Financial Officer
ASC UTAH
By:/s/ Mark J. Miller
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Title: Chief Financial Officer
STEAMBOAT SKI & RESORT CORPORATION
By:/s/ Mark J. Miller
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Title: Chief Financial Officer
HEAVENLY SKI & RESORT CORPORATION
By:/s/ Mark J. Miller
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Title: Chief Financial Officer
HEAVENLY CORPORATION
By:/s/ Mark J. Miller
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Title: Chief Financial Officer
HEAVENLY VALLEY, LIMITED PARTNERSHIP
By: Heavenly Corporation, its general partner
By:/s/ Mark J. Miller
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Title: Chief Financial Officer
FLEET NATIONAL BANK (successor in interest to
BankBoston, N.A.), as Agent
By:/s/ Daniel Butler
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Title: Vice President
FLEET NATIONAL BANK (successor in interest
to BankBoston, N.A.), as a Lender
By:/s/ Daniel Butler
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Title: Vice President
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ Illegible
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Title: Relationship Manager
WELLS FARGO BANK, NATIONAL ASSOCIATION,
successor by merger to First
Security Bank, N.A., as a Lender
By: /s/ Illegible
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Title: Relationship Manager
U.S. BANK NATIONAL ASSOCIATION, as a Lender
By: /s/Illegible
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Title: Vice President
THE HOWARD BANK, N.A., as a Lender
By: /s/ Illegible
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Title: Vice President
BLACK DIAMOND CLO 1998-1 LTD., as a Lender
By: /s/ John H. Cullinane
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Title:Director
BLACK DIAMOND CLO 2000-1 LTD., as a Lender
By: /s/ David Dyer
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Title: Director
BLACK DIAMOND INTERNATIONAL FUNDING, LTD.,
as a Lender
By: /s/ David Dyer
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Title:Director
By:
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Title:
MERRILL LYNCH PRIME RATE PORTFOLIO,
as a Lender
By: Merrill Lynch Investment Managers, L.P.,
as Investment Advisor
By: /s/ Michael Brown
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Title: Authorized Signatory
DEBT STRATEGIES FUND, INC., as a Lender
By: /s/ Michael Brown
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Title: Authorized Signatory
CAPTIVA II FINANCE LTD., as a Lender
By: /s/ David Egglishaw
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Title: Director
KZH-PAMCO LLC, as a Lender
By: /s/ Susan Lee
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Title: Authorized Agent
KZH HIGHLAND-2 LLC, as a Lender
By: /s/ Susan Lee
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Title: Authorized Agent
PAM CAPITAL FUNDING L.P., as a Lender
By: Highland Capital Management, L.P.,
as Collateral Manager
By: /s/ Mark K. Okeda
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Title: Executive Vice Presidet
PAMCO CAYMAN, LTD., as a Lender
By: Highland Capital Management, L.P.,
as Collateral Manager
By: /s/ Mark K. Okeda
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Title: Executive Vice President
VAN KAMPEN PRIME RATE INCOME TRUST,
as a Lender
By: Van Kampen Investment Advisory Corp.
By: /s/ Darvin D. Pierce
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Title: Executive Director
GLENEAGLES TRADING LLC, as a Lender
By: /s/ Ann E. Morris
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Title: Assist. Vice President
SRV-HIGHLAND, INC., as a Lender
By: /s/ Ann E. Morris
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Title: Assist. Vice President
LONG LANE MASTER TRUST IV, as a Lender
By: /s/ Illegible
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Title: