Exhibit 10.36
FIRST AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of July 20, 1998
Among
ASC EAST, INC.
SUNDAY RIVER SKIWAY CORPORATION
SUNDAY RIVER, LTD.
PERFECT TURN, INC.
SUNDAY RIVER TRANSPORTATION, INC.
L.B.O. HOLDING, INC.
SUGARBUSH RESORT HOLDINGS, INC.
SUGARBUSH LEASING COMPANY
SUGARBUSH RESTAURANTS, INC.
MOUNTAIN WASTEWATER TREATMENT, INC.
S-K-I, LTD.
KILLINGTON, LTD.
MOUNT SNOW, LTD.
PICO SKI AREA MANAGEMENT COMPANY
RESORTS SOFTWARE SERVICES, INC.
KILLINGTON RESTAURANTS, INC.
RESORTS TECHNOLOGIES, INC.
DOVER RESTAURANTS, INC.
SUGARLOAF MOUNTAIN CORPORATION
MOUNTAINSIDE
SUGARTECH
as Borrowers,
AMERICAN SKIING COMPANY,
as Guarantor,
THE LENDERS PARTY HERETO,
BANKBOSTON, N.A.,
as Agent for the Lenders
and
DLJ CAPITAL FUNDING, INC.
as Documentation Agent for the Lenders
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT is
entered into as of July 20, 1998 by and among ASC East, Inc., a Maine
corporation ("ASC East"), SUNDAY RIVER SKIWAY CORPORATION, a Maine corporation,
SUNDAY RIVER, LTD., a Maine corporation, PERFECT TURN, INC., a Maine
corporation, SUNDAY RIVER TRANSPORTATION, INC., a Maine corporation, L.B.O.
HOLDING, INC., a Maine corporation, SUGARBUSH RESORT HOLDINGS, INC., a Vermont
corporation , SUGARBUSH LEASING COMPANY, a Vermont corporation, SUGARBUSH
RESTAURANTS, INC., a Vermont corporation, MOUNTAIN WASTEWATER TREATMENT, INC., a
Vermont corporation, S-K-I, LTD., a Delaware corporation ("S-K-I"), KILLINGTON,
LTD., a Vermont corporation ("Killington"), MOUNT SNOW, LTD., a Vermont
corporation, PICO SKI AREA MANAGEMENT COMPANY, a Vermont corporation, RESORTS
SOFTWARE SERVICES, INC., a Vermont corporation, KILLINGTON RESTAURANTS, INC., a
Vermont corporation, RESORTS TECHNOLOGIES, INC., a Vermont corporation, DOVER
RESTAURANTS, INC., a Vermont corporation, SUGARLOAF MOUNTAIN CORPORATION, a
Maine corporation, MOUNTAINSIDE, a Maine corporation and SUGARTECH, a Maine
corporation (each a "Borrowers" and collectively, the "Borrowers"), AMERICAN
SKIING COMPANY, a Maine corporation ("American Ski"), the lenders from time to
time party hereto (the "Lenders"), BANKBOSTON, N.A., a national banking
association, as Agent for the lenders from time to time party hereto (the
"Agent") and DLJ CAPITAL FUNDING, INC., as Documentation Agent for the lenders
from time to time party hereto (the "Documentation Agent") under the Credit
Agreement referred to below.
Recitals
The Borrowers, American Ski, the Lenders, the Documentation Agent and
the Agent are parties to a Credit Agreement dated as of November 12, 1997 (as
amended, the "Credit Agreement"). The Borrowers and American Ski desire to amend
the Credit Agreement in various respects, including amending the definition of
Maximum Revolving Credit Amount to decrease the amount available by $10,000,000.
The Agent, the Documentation Agent and the Lenders are willing to amend the
Credit Agreement on the terms and conditions set forth herein. All capitalized
terms used herein and not otherwise defined shall have the meanings set forth in
the Credit Agreement.
NOW, THEREFORE, subject to the satisfaction of the conditions to
effectiveness specified in Section 4, American Ski, the Borrowers, the Lenders,
the Documentation Agent and the Agent hereby agree as follows:
Section 1. Definitions. Section 1.1 of the Credit Agreement is hereby
amended by deleting the definition of Maximum Revolving Credit Amount in its
entirety and substituting therefor the following:
5
"Maximum Revolving Credit Amount" shall mean as of any date of
determination, the lesser of (a) the applicable amount set forth below
(as each such amount may be reduced from time to time pursuant to the
mandatory reduction requirements of Section 4.1(c)):
Closing Date through May 30, 1999 $35,000,000
May 31, 1999 through May 30, 2000 34,850,000
May 31, 2000 through May 30, 2001 34,350,000
May 31, 2001 through May 30, 2002 32,600,000
May 31, 2002 through May 30, 2003 30,450,000
May 31, 2003 through May 30, 2004 28,250,000
or (b) the amount to which the Maximum Revolving Credit Amount may have
been reduced pursuant to Section 2.12; provided that if the obligation
of the Lenders to make further Loans is terminated upon the occurrence
of an Event of Default, the Maximum Revolving Credit Amount as of any
date of determination thereafter shall be deemed to be $0.
Section 2. Events of Default. Section 10.1 of the Credit Agreement is
hereby amended by deleting paragraph (e) clause (ii) in its entirety and
substituting therefor the following:
(ii) shall fail to observe or perform its covenants, agreements and
obligations under any other material lease or other agreement by which
it is bound, including the $25,000,000 leasing facility with BankBoston
Leasing, Inc., dated as of July 20, 1998.
Section 3. Interest Rate Protection Agreements. In addition to the
permitted Indebtedness under Section 9.1(k), the Agent, the Documentation Agent,
the Lenders, American Ski and the Borrowers hereby acknowledge that ASC East has
entered into Interest Rate Protection Agreements with BankBoston, N.A., on the
$120,000,000 Senior Subordinated Notes, effective as of ASC East's second
quarter end in 1998, and the Agent and the Lenders hereby consent to such
transaction.
Section 4. Effectiveness; Conditions to Effectiveness. This First
Amendment to Amended and Restated Credit Agreement shall become effective as of
July 20, 1998 upon execution hereof by the Borrowers, the Lenders, the
Documentation Agent and the Agent and satisfaction of the following conditions:
(a) Officers' Certificate. The Borrowers and American Ski
shall have delivered to the Agent an Officers' Certificate in the form
of Exhibit A hereto.
(b) Execution of the First Amendment to Credit Agreement.
Execution of the First Amendment to Credit Agreement among the American
Ski - West Borrowers, the Agent, the Documentation Agent and the
Lenders party thereto simultaneously herewith and the compliance by the
American Ski - West Borrowers with all agreements contained in the
First Amendment to Credit Agreement, including satisfaction of all
conditions precedent to effectiveness thereunder.
Section 5. Representations and Warranties; No Default. American Ski and
the Borrowers, jointly and severally, hereby confirm to the Agent and the
Lenders, the representations and warranties of American Ski and the Borrowers
set forth in Article 5 of the Credit Agreement (as amended hereby) as of the
date hereof, as if set forth herein in full. American Ski and the Borrowers
hereby certify that, after giving effect to this First Amendment to Credit
Agreement, no Default exists under the Credit Agreement (unless stated to relate
solely to an earlier date, in which case they were true and correct as of such
earlier date).
Section 6. Miscellaneous. The Borrowers agree to pay on demand all the
Agent's reasonable expenses in preparing, executing and delivering this First
Amendment to Amended and Restated Credit Agreement, and all related instruments
and documents, including, without limitation, the reasonable fees and
out-of-pocket expenses of the Agent's special counsel, Goodwin, Procter & Hoar
LLP. All references to the Credit Agreement in the Credit Agreement, the other
Lender Agreements or any other document shall be deemed to refer to the Credit
Agreement as amended hereby. This First Amendment to Credit Agreement shall be a
Lender Agreement and shall be governed by and construed and enforced under the
laws of The Commonwealth of Massachusetts.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, American Ski, the Borrowers, the Lenders, the
Documentation Agent, and the Agent have caused this First Amendment to Amended
and Restated Credit Agreement to be executed by their duly authorized officers
as of the date first set forth above.
ASC EAST, INC.
SUNDAY RIVER SKIWAY CORPORATION
SUNDAY RIVER, LTD.
PERFECT TURN, INC.
SUNDAY RIVER TRANSPORTATION, INC.
L.B.O. HOLDING, INC.
SUGARBUSH RESORT HOLDINGS, INC.
SUGARBUSH LEASING COMPANY
SUGARBUSH RESTAURANTS, INC.
MOUNTAIN WASTEWATER TREATMENT, INC.
S-K-I, LTD.
KILLINGTON, LTD.
MOUNT SNOW, LTD.
PICO SKI AREA MANAGEMENT COMPANY
RESORTS SOFTWARE SERVICES, INC.
KILLINGTON RESTAURANTS, INC.
RESORTS TECHNOLOGIES, INC.
DOVER RESTAURANTS, INC.
SUGARLOAF MOUNTAIN CORPORATION
MOUNTAINSIDE
SUGARTECH
By:/s/ Thomas M. Richardson
----------------------------
Name: Thomas M. Richardson
Title:CFO and Senior Vice President
AMERICAN SKIING COMPANY, as Guarantor
By:/s/ Thomas M. Richardson
---------------------------
Name: Thomas M. Richardson
Title:CFO and Senior Vice President
BANKBOSTON, N.A., as Agent
By: /s/ Carlton F. Williams
----------------------------
Name: Carlton F. Williams
Title: Director
DLJ CAPITAL FUNDING, INC., as Documentation Agent
By: /s/ illegible
-----------------------------
Name:
Title:
BANKBOSTON, N.A.
By: /s/ Carlton F. Williams
----------------------------
Name: Carlton F. Williams
Title: Director
DLJ CAPITAL FUNDING, INC.
By: /s/ illegible
-----------------------------
Name:
Title:
NORWEST BANK COLORADO, NATIONAL ASSOCIATION
By: /s/ illegible
--------------------------------
Name:
Title:
WELLS FARGO BANK, NATIONAL ASSOCIATION
By: /s/ Daniel G. Admans
---------------------------------
Name: Daniel G. Adams
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION d/b/a COLORADO NATIONAL
BANK
By: /s/ William J. Sullivan
----------------------------------
Name: William J. Sullivan
Title: Vice President
FIRST SECURITY BANK, N.A.
By: Dick Van Klaveren
--------------------------------
Name:Dick Van Klaveren
Title: Vice President
FLOATING RATE PORTFOLIO
By: INVESCO SENIOR SECURED MANAGEMENT, INC.,
As Attorney in Fact
By: /s/ Anne McCarthy
--------------------------------
Name: Anne McCarthy
Title: Authorized Signatory
MERRILL LYNCH SENIOR FLOATING RATE FUND, INC.
By: Merrill Lynch Asset Management, L.P., as
Investment Advisor
By:/s/ John M. Johnson
--------------------------
Name: John M. Johnson
Title: Authorized Signatory
MERRILL LYNCH PRIME RATE PORTFOLIO
By: Merrill Lynch Asset Management, L.P., as
Investment Advisor
By:/s/ John M. Johnson
--------------------------
Name: John M. Johnson
Title: Authorized Signatory
VAN KAMPEN AMERICAN CAPITAL PRIME RATE INCOME TRUST
By: Jeffrey M. Maillet
--------------------------
Name: Jeffrey M. Maillet
Title: Senior Vice President & Director
EATON VANCE SENIOR DEBT PORTFOLIO
By: Boston Management and Research, as
Investment Advisor
By: Payson F. Swaffield
-------------------------
Name: Payson F. Swaffield
Title: Vice President
CAPTIVA II FINANCE, LTD.
By:/s/ illegible
--------------------------
Name:
Title:
HOWARD BANK
By:/s/ illegible
--------------------------
Name:
Title:
STANFIELD CAPITAL PARTNERS
By:/s/ illegible
--------------------------
Name:
Title:
KZH-PAMCO CORPORATION
By:/s/ illegible
--------------------------
Name:
Title:
PAM CAPITAL FUNDING, L.P.
By: Highland Capital Management L.P., as
Collateral Manager
By:/s/ illegible
--------------------------
Name:
Title:
CYPRESSTREE INVESTMENT PARTNERS I, LTD.
By: Cypress Tree Investment Management Company, Inc., as
Portfolio Manager
By:/s/ illegible
--------------------------
Name:
Title:
KZH Holding Corporation III
By:/s/ illegible
--------------------------
Name:
Title: