WAIVER AND CONSENT
WAIVER AND CONSENT dated as of January 27, 2002 (this
"Waiver") with respect to the Amended, Restated and Consolidated Credit
Agreement dated as of October 12, 1999 (as amended to date, the "Credit
Agreement") by and among American Skiing Company ("ASC") 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:
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WHEREAS, pursuant to the Credit Agreement, the Lenders have
made Loans and other financial accommodations to the Borrowers which remain
outstanding;
WHEREAS, certain Events of Default have occurred and are
continuing; and
WHEREAS, the Borrowers have requested that the Agent and the
Lenders waive such Events of Default, and the Agent and the Lenders are willing
to do so, but only on the terms and conditions set forth herein;
WHEREAS, the Borrowers have requested that the Agent and the
Lenders consent to certain transactions 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 terms shall have the following meanings:
"Specified Events of Default": Events of Default arising or in
respect of Section 10.1(b) of the Credit Agreement as a result of the
Borrowers' failure to comply with Sections 7.1, 7.2, 7.3, 7.5 and 7.6
of the Credit Agreement with respect to the fiscal quarter ended
January 27, 2002.
"Steamboat Presentation": ASC's presentation to the Lenders dated
February 7, 2002 regarding the Steamboat Sale.
"Steamboat Sale": the sale by ASC of the assets or capital stock
of the Steamboat Subsidiaries, pursuant to the terms of that certain
Stock Purchase and Merger Agreement dated as of January 24, 2002,
attached hereto as Exhibit A.
ARTICLE II
WAIVER; CONSENT; AGREEMENT
Section 2.1. Waiver. Subject to the terms and conditions hereof, the
Agent and the Lenders hereby agree to waive the Specified Events of Default.
Section 2.2. Consents. (a) The Agent and the Lenders hereby
consent to the Steamboat Sale; provided, that the net cash proceeds (after
purchase price adjustments and repayment of certain indebtedness as outlined in
the Stock Purchase and Merger Agreement) shall be applied to prepay the Loans as
set forth in the Credit Agreement (less up to $7,500,000 to the lenders of
American Skiing Company Resort Properties, Inc. and as otherwise identified in
the Steamboat Presentation), and (b) the Lenders hereby consent to the release
by the Agent of all security interests held by the Agent for the benefit of the
Lenders in the assets that are the subject of the Steamboat Sale in the event
of, and in conjunction with, the consummation of the Steamboat Sale, as well as
the release of any other Borrowers that are transferred in conjunction with such
sale.
Section 2.3. Agreements The Agent, the Lenders and the
Borrowers hereby agree that, notwithstanding anything to the contrary set forth
in Sections 2.3 or 2.5 of the Credit Agreement or elsewhere, the Borrowers,
jointly and severally, shall, as of March 18, 2002, pay interest on the unpaid
balance of the Term Loans and the Revolving Credit Advances from time to time
outstanding at the Base Rate plus 4.25%.
ARTICLE III
WAIVER EFFECTIVE DATE
Section 3.1 Effective Date. This Waiver shall become effective
as of the date hereof upon receipt by the Agent of (a) counterparts of this
Waiver, duly executed and delivered by the Borrowers, the Agent and the Lenders
and (b) payment in full in cash of the invoiced and unpaid fees and expenses of
the Agent's professionals.
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 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 Waiver shall
be construed or interpreted or is intended as a waiver of any Default or Event
of Default (other than the Specified Events 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 (other than the Specified Events 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 Waiver, (a) no Default or Event of Default has occurred and is continuing,
except the Specified Events of Default, 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, except that Section 5.22(a) of the Credit Agreement shall be deemed
to exclude any Specified Event of Default.
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
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execution of this Waiver, including, without limitation, the reasonable fees and
disbursements of counsel to the Agent
Section 5.3. Counterparts. This Waiver 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 WAIVER AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS WAIVER 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 Waiver, 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 (other than Specified Events of Default).
Section 5.6. Confirmation of Indebtedness. The Borrowers
hereby confirm and acknowledge that (i) as of the Effective Date, the Borrowers
are truly and justly indebted to the Lenders, without defense, counterclaim or
offset of any kind and (ii) as of March 7, 2002, the Borrowers are liable to the
Lenders in respect of Loans and Letters of Credit in the aggregate principal
amount of $93,373,348.
Section 5.7. 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 Waiver 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 Waiver, 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 5.7 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 Waiver
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: Senior Vice President & CFO
SUNDAY RIVER SKIWAY CORPORATION
By: /s/ Mark J. Miller
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Title: Senior Vice President & CFO
SUNDAY RIVER LTD.
By: /s/ Mark J. Miller
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Title: Senior Vice President & CFO
PERFECT TURN, INC.
By: /s/ Mark J. Miller
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Title: Senior Vice President & CFO
SUNDAY RIVER TRANSPORTATION INC.
By: /s/ Mark J. Miller
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Title: Senior Vice President & CFO
L.B.O. HOLDING, INC.
By: /s/ Mark J. Miller
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Title: Senior Vice President & CFO
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SRH, INC.
By: /s/ Mark J. Miller
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Title: Senior Vice President & CFO
S-K-I, LTD.
By: /s/ Mark J. Miller
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Title: Senior Vice President & CFO
KILLINGTON, LTD.
By: /s/ Mark J. Miller
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Title: Senior Vice President & CFO
MOUNT SNOW LTD.
By: /s/ Mark J. Miller
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Title: Senior Vice President & CFO
PICO SKI AREA MANAGEMENT COMPANY
By: /s/ Mark J. Miller
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Title: Senior Vice President & CFO
KILLINGTON RESTAURANTS, INC.
By: /s/ Mark J. Miller
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Title: Senior Vice President & CFO
DOVER RESTAURANTS, INC.
By: /s/ Mark J. Miller
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Title: Senior Vice President & CFO
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SUGARLOAF MOUNTAIN CORPORATION
By: /s/ Mark J. Miller
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Title: Senior Vice President & CFO
MOUNTAINSIDE
By: /s/ Mark J. Miller
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Title: Senior Vice President & CFO
ASC UTAH
By: /s/ Mark J. Miller
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Title: Senior Vice President & CFO
STEAMBOAT SKI & RESORT CORPORATION
By: /s/ Mark J. Miller
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Title: Senior Vice President & CFO
HEAVENLY SKI & RESORT CORPORATION
By: /s/ Mark J. Miller
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Title: Senior Vice President & CFO
HEAVENLY CORPORATION
By: /s/ Mark J. Miller
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Title: Senior Vice President & CFO
HEAVENLY VALLEY, LIMITED PARTNERSHIP
By: Heavenly Corporation, its general partner
By: /s/ Mark J. Miller
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Title: Senior Vice President & CFO
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FLEET NATIONAL BANK (successor in interest to
BankBoston, N.A.), as Agent
By: /s/ Daniel D. Butler
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Title: Vice President
FLEET NATIONAL BANK (successor in interest to
BankBoston, N.A.), as a Lender
By: /s/ Daniel D. Butler
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Title: Vice President
WELLS FARGO BANK, NATIONAL ASSOCIATION, as a
Lender
By: /s/ illegible
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Title: AVP
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: AVP
U.S. BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ Hassan Salem
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Title: Vice President
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THE HOWARD BANK, N.A., as a Lender
By: /s/ illegible
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Title:
BLACK DIAMOND CLO 1998-1 LTD., as a Lender
By: /s/ illegible
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Title: Director
BLACK DIAMOND CLO 2000-1 LTD., as a Lender
By: /s/ illegible
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Title: Director
BLACK DIAMOND INTERNATIONAL FUNDING, LTD., as a
Lender
By: /s/ illegible
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Title: Director
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MERRILL LYNCH PRIME RATE PORTFOLIO,
as a Lender
By: Merrill Lynch Asset Management, L.P.,
as Investment Advisor
By: /s/ illegible
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Title:
DEBT STRATEGIES FUND, INC., as a Lender
By: /s/ illegible
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Title:
CAPTIVA II FINANCE LTD., as a Lender
By: David Dyer
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Title: Director
KZH-PAMCO LLC, as a Lender
By: /s/illegible
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Title: Authorized Agent
KZH HIGHLAND-2 LLC, as a Lender
By: /s/illegible
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Title: Authorized Agent
VAN KAMPEN PRIME RATE INCOME TRUST, as a Lender
By: Van Kampen Investment Advisory Corp.
By: /s/ Christina Jamieson
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Title: Vice President
GLENEAGLES TRADING LLC, as a Lender
By: Ann E. Morris
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Title: Assistant Vice President
SRV-HIGHLAND, INC., as a Lender
By: Ann E. Morris
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Title: Assistant Vice President
LONG LANE MASTER TRUST IV, as a Lender
By: Fleet National Bank as Trust
Administrator
By: /s/ illegible
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Title: