Exhibit 1
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AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of November 12, 1997
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
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TABLE OF CONTENTS
Page
ARTICLE 1. DEFINITIONS AND ACCOUNTING TERMS..................................2
Section 1.1 Definitions................................................2
Section 1.2 Accounting Terms..........................................28
ARTICLE 2. THE CREDITS......................................................28
Section 2.1 The Revolving Credit......................................28
Section 2.2 Making of Revolving Credit Advances.......................29
Section 2.3 Interest on Revolving Credit Advances.....................31
Section 2.4 The Term Loans............................................31
Section 2.5 Interest on the Term Loans................................31
Section 2.6 Election of LIBOR Pricing Options.........................31
Section 2.7 Additional Payments.......................................32
Section 2.8 Computation of Interest, Etc..............................32
Section 2.9 Fees......................................................32
Section 2.10 Set-Off...................................................33
Section 2.11 Sharing of Payments.......................................33
Section 2.12 Reduction of Commitment by the Borrowers..................33
Section 2.13 Increased Costs, Etc......................................34
Section 2.14 Changed Circumstances.....................................35
Section 2.15 Use of Proceeds...........................................36
Section 2.16 Letters of Credit.........................................37
Section 2.17 Collection of Accounts....................................41
Section 2.18 Swing Line Commitment.....................................42
Section 2.19 Procedure for Swing Line Borrowing; Interest on
Swing Line Loans..........................................42
Section 2.20 Refunded Swing Line Loans; Swing Line Loan
Participations............................................43
Section 2.21 Release of Certain Liens..................................44
Section 2.22 Guaranty of American Ski..................................46
ARTICLE 3. CONDITIONS TO LOANS AND ADVANCES.................................47
Section 3.1 Conditions to the Term Loans and the Initial Revolving
Credit Advance............................................47
Section 3.2 Conditions to All Loans...................................52
ARTICLE 4. PAYMENT AND REPAYMENT.............................................53
Section 4.1 Mandatory Repayments and Prepayment.......................53
Section 4.2 Voluntary Prepayments.....................................56
Section 4.3 Payment and Interest Cutoff...............................57
Section 4.4 Payment or Other Actions on Non-Business Days.............57
(i)
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Section 4.5 Method and Timing of Payments.............................57
Section 4.6 Payments Not at End of Interest Period....................58
Section 4.7 Currency..................................................59
Section 4.8 Foreign Lenders...........................................59
ARTICLE 5. REPRESENTATIONS AND WARRANTIES...................................59
Section 5.1 Existence, Charter and Formation Documents, Etc...........59
Section 5.2 Principal Place of Business; Location of Records..........60
Section 5.3 Qualification.............................................60
Section 5.4 Subsidiaries..............................................60
Section 5.5 Power.....................................................60
Section 5.6 Valid and Binding Obligations.............................61
Section 5.7 Other Agreements..........................................61
Section 5.8 Payment of Taxes..........................................61
Section 5.9 Financial Statements......................................62
Section 5.10 Other Materials Furnished.................................62
Section 5.11 Stock.....................................................62
Section 5.12 Changes in Condition......................................63
Section 5.13 Assets, Licenses, Patents, Trademarks, Etc................63
Section 5.14 Litigation................................................64
Section 5.15 Pension Plans.............................................64
Section 5.16 Outstanding Indebtedness..................................64
Section 5.17 Environmental Matters.....................................64
Section 5.18 Foreign Trade Regulations.................................66
Section 5.19 Governmental Regulations..................................66
Section 5.20 Margin Stock..............................................66
Section 5.21 Solvency..................................................66
Section 5.22 Compliance with Other Instruments, Laws, Etc..............66
Section 5.23 Absence of Financing Statements, Etc......................67
Section 5.24 Perfection of Security Interests..........................67
Section 5.25 Bank Accounts.............................................67
Section 5.26 Fiscal Year...............................................67
Section 5.27 Tax Status................................................67
Section 5.28 Consummation of Public Offering...........................67
Section 5.29 Consummation of Kamori Acquisition........................67
Section 5.30 Cerberus Purchase Agreement; Cerberus Amendment
and Waiver Letter Agreement; Certificate of Designation...68
Section 5.31 Wolf Acquisition Agreement................................68
ARTICLE 6. REPORTS AND INFORMATION..........................................68
Section 6.1 Interim Financial Statements and Reports..................68
(ii)
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Section 6.2 Annual Financial Statements...............................69
Section 6.3 Annual Budget.............................................69
Section 6.4 Reports of Skier Visits...................................70
Section 6.5 Notice of Defaults........................................70
Section 6.6 Notice of Litigation......................................70
Section 6.7 Communications with Others................................70
Section 6.8 Reportable Events.........................................70
Section 6.9 Reports to other Creditors................................70
Section 6.10 Communications with Independent Public Accountants........71
Section 6.11 Environmental Reports.....................................71
Section 6.12 Notices Under Certain Agreements..........................71
Section 6.13 Miscellaneous.............................................72
ARTICLE 7. FINANCIAL COVENANTS..............................................72
Section 7.1 Ratio of Consolidated Total Debt to Consolidated EBITDA...72
Section 7.2 Ratio of Consolidated Adjusted Cash Flow to
Consolidated Debt Service.................................73
Section 7.3 Ratio of Consolidated EBITDA to Consolidated
Interest Expense..........................................73
Section 7.4 Minimum Consolidated Net Worth............................74
ARTICLE 8. AFFIRMATIVE COVENANTS............................................74
Section 8.1 Existence and Business....................................74
Section 8.2 Taxes and Other Obligations...............................74
Section 8.3 Maintenance of Properties and Leases......................75
Section 8.4 Insurance.................................................75
Section 8.5 Records, Accounts and Places of Business..................75
Section 8.6 Inspection................................................75
Section 8.7 Maintenance of Accounts...................................76
Section 8.8 Maintenance and Assignment of Life Insurance..............76
Section 8.9 Ownership of Restricted Subsidiaries......................76
Section 8.10 Survey and Surveyor's Certificate.........................76
Section 8.11 Appraisals................................................76
Section 8.12 Lease Renewal.............................................77
Section 8.13 Use of IPO Proceeds.......................................77
Section 8.14 Environmental and Land Use Compliance.....................77
Section 8.15 Interest Rate Protection..................................77
Section 8.16 Independence of Unrestricted Subsidiaries.................77
Section 8.17 Redemption or Exchange of Senior Subordinated Notes.......78
Section 8.18 Forest Service Permits....................................78
(iii)
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ARTICLE 9. NEGATIVE COVENANTS...............................................78
Section 9.1 Restrictions on Indebtedness..............................78
Section 9.2 Restriction on Liens......................................80
Section 9.3 Investments...............................................82
Section 9.4 Mergers, Acquisitions, Etc................................84
Section 9.5 Transactions with Affiliates..............................84
Section 9.6 Distributions.............................................84
Section 9.7 Capital Expenditures......................................84
Section 9.8 Dispositions of Assets....................................85
Section 9.9 Assumptions, Guaranties, Etc. of Indebtedness
of Other Persons..........................................85
Section 9.10 ERISA.....................................................85
Section 9.11 Sale and Leaseback........................................86
Section 9.12 Restrictive or Inconsistent Agreements....................86
Section 9.13 Limitations on Real Estate Operations.....................86
Section 9.14 Fiscal Year...............................................86
Section 9.15 Limitation on Excess Proceeds.............................86
Section 9.16 No Amendment of Subordinated Notes; Cerberus Purchase
Agreement; Cerberus Amendment and Waiver Letter
Agreement.................................................86
Section 9.17 Exchange of Cerberus 101/2% Repriced Convertible
Exchangeable Preferred Stock and Amended and Restated
Registration Rights Agreement Penalties.............................86
Section 9.18 Limitation on Issuance of Capital Stock...................87
ARTICLE 10. EVENTS OF DEFAULT AND REMEDIES..................................87
Section 10.1 Events of Default.........................................87
Section 10.2 Remedies..................................................90
Section 10.3 Distribution of Proceeds..................................91
ARTICLE 11. CONSENTS; AMENDMENTS; WAIVERS; REMEDIES.........................92
Section 11.1 Actions by Lenders........................................92
Section 11.2 Actions by Borrowers......................................93
ARTICLE 12. SUCCESSORS AND ASSIGNS..........................................93
Section 12.1 General...................................................93
Section 12.2 Assignments...............................................93
Section 12.3 Participations............................................95
ARTICLE 13. THE AGENT.......................................................96
Section 13.1 Authorization and Action..................................96
(iv)
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Section 13.2 Agent's Reliance, Etc.....................................96
Section 13.3 Agent as a Lender.........................................97
Section 13.4 Lender Credit Decision....................................97
Section 13.5 Indemnification of Agent..................................97
Section 13.6 Successor Agent...........................................98
Section 13.7 Amendment of Article 13...................................98
Section 13.8 Documentation Agent.......................................99
ARTICLE 14. MISCELLANEOUS...................................................99
Section 14.1 Notices...................................................99
Section 14.2 Merger...................................................100
Section 14.3 Governing Law; Consent to Jurisdiction...................100
Section 14.4 Counterparts.............................................100
Section 14.5 Expenses and Indemnification.............................100
Section 14.6 Confidentiality..........................................101
Section 14.7 Reliance on Representations and Actions of American Ski..102
Section 14.8 Joint and Several Obligations............................102
(v)
LIST OF EXHIBITS AND SCHEDULES
Exhibit A-1 Form of Revolving Credit Note
Exhibit A-2 Form of Term Loan Note
Exhibit A-3 Form of Swing Line Note
Exhibit B Form of Notice of Revolving Credit or Swing Line Borrowing
Exhibit C Form of Compliance Certificate
Exhibit D Form of Pricing Notice
Exhibit E-1 Form of Amended and Restated Security Agreement
Exhibit E-2 Form of Guarantor Security Agreement
Exhibit F Form of Unlimited Guaranty Agreement
Exhibit G Form of Amended and Restated Fee and Leasehold Mortgage,
Assignment of Leases and Rents, Financing Statement and
Security Agreement
Exhibit H Form of Amended and Restated Collateral Assignment of Leases
and Rents
Exhibit I [Intentionally Omitted.]
Exhibit J Form of Assignment in Trust
Exhibit K Form of Assignment of Trademarks
Exhibit L Form of Amended and Restated Assignment of Licenses,
Contracts and Permits
Exhibit M Form of Stock Pledge Agreement
Exhibit N Form of Amended and Restated Hazardous Materials
Indemnification Agreement
Exhibit O Form of Opinions of Borrowers' Counsel
Exhibit P Form of Assignment and Acceptance Agreement
Exhibit Q Form of Amended and Restated Xxxxx Subordination Agreement
Exhibit R Acknowledgment of Unrestricted Subsidiary
Exhibit S Form of Joinder
Exhibit T Cerberus Amendment and Waiver Letter Agreement; Certificate
of Designation; Amended and Restated Registration Rights
Agreement; Cerberus Purchase Agreement
Exhibit U Registration Statement
Exhibit V Kamori Stock Purchase Agreement
Schedule 1 Schedule of Commitment Percentages
Schedule 2 Pricing Schedule
Schedule 2.16 Schedule of Letters of Credit
Schedule 2.17 Schedule of Bank Accounts
Schedule 3.1(q) Schedule of Certain Leases
Schedule 5.2 Schedule of Principal Places of Business
Schedule 5.4(a) Schedule of Subsidiaries and Issued and Outstanding Stock
Schedule 5.4(b) Transactions with Unrestricted Subsidiaries
Schedule 5.8 Schedule of Certain Tax Matters
Schedule 5.9 Schedule of Financial Statements
Schedule 5.14 Schedule of Litigation
Schedule 5.13 Schedule of Licenses, Patents, Copyrights and Trademarks
(vi)
Schedule 5.13(c) Schedule of Certain Leasehold Personal Property Interests
and Personal Property Lease Agreements
Schedule 5.15 Schedule of Pension Plans
Schedule 5.16 Schedule of Indebtedness, Liens, Charges and Encumbrances
Schedule 5.17 Environmental Matters
Schedule 8.4 Schedule of Insurance
Schedule 8.9 Schedule of Ownership of Restricted Subsidiaries
Schedule 8.12 Schedule of Leases
Schedule 8.14 Schedule of Environmental and Land Use Compliance
Schedule 8.17 Schedule of Forest Service Permits
Schedule 9.3 Investment Policy and Investments
(vii)
AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of November
12, 1997 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
"Borrower" and collectively, the "Borrowers"), AMERICAN SKIING COMPANY, a Maine
corporation ("American Ski"), the lenders from time to time party hereto,
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").
RECITALS
The Borrowers and certain of the lenders party hereto and the Agent (as
successor agent to Fleet National Bank) are parties to a Credit Agreement dated
as of June 28, 1996, as amended (the "1996 Credit Agreement"). The Borrowers,
jointly and severally, desire to arrange for an increase in their existing
credit facilities to $75,000,000, on the terms and conditions set forth herein,
the proceeds of which will be used (a) to refinance certain outstanding
obligations of the Borrowers, (b) to fund certain capital expenditures and (c)
to provide for on-going working capital and other specified needs. The Lenders
are willing to provide such additional financing on the terms and conditions set
forth herein, including, among others, that the Borrowers amend the 1996 Credit
Agreement in certain respects as provided herein and that American Ski become a
guarantor hereunder. The Borrowers conduct their operations on a combined basis
with shared management, purchasing, planning, financial controls and other
functions, and the access of all Borrowers to the credit facilities provided
hereunder benefits all Borrowers in connection with their various businesses.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Borrowers, the Agent and the
Lenders party to the 1996 Credit Agreement hereby amend and restate the 1996
Credit Agreement in its entirety and all the parties hereto agree hereby as
follows:
ARTICLE 1. DEFINITIONS AND ACCOUNTING TERMS
Section 1.1 DEFINITIONS. In addition to the terms defined elsewhere in
this Agreement, unless otherwise specifically provided herein, the following
terms shall have the following meanings for all purposes when used in this
Agreement, and in any note, agreement, certificate, report or other document
made or delivered in connection with this Agreement:
"ADDITIONAL CAPITAL EXPENDITURE AMOUNT" shall mean the product of
(a) Consolidated Excess Cash Flow for the four-quarter period ending each
April 30, multiplied by (b) 50% when the Capital Expenditure Ratio as of
such April 30 equals or exceeds 3.5-to-1 and 100% otherwise.
"AFFILIATE" shall mean (a) any director or executive officer of
American Ski or any of its Subsidiaries or any Person owning more than 5%
of the outstanding common stock of American Ski or any of its Subsidiaries
and (b) any Person that controls, is controlled by or is under common
control with such a Person or any Affiliate of such Person. For purposes
of this definition, "control" of a Person shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of
its management or policies, whether through the ownership of voting
securities, by contract or otherwise.
"AGENT" shall mean BankBoston, N.A., in its capacity as agent for the
Lenders, and its successors in that capacity.
"AGGREGATE OUTSTANDING REVOLVING CREDIT EXTENSIONS" shall mean, as to
any Revolving Credit Lender at any time, an amount equal to the sum of
(a) the aggregate principal amount of all Revolving Credit Advances made by
such Lender then outstanding PLUS (b) such Revolving Credit Lender's
Revolving Credit Commitment Percentage of the Letter of Credit Exposure
then outstanding.
"AGREEMENT" shall mean this Amended and Restated Credit Agreement, as
amended or supplemented from time to time. References to Articles,
Sections, Exhibits, Schedules and the like refer to the Articles, Sections,
Exhibits, Schedules and the like of this Agreement, unless otherwise
indicated, as amended and supplemented from time to time.
"ALPINE PIPELINE" shall mean Alpine Pipeline Company, a Vermont
corporation.
2
"AMERICAN SKI - WEST BORROWERS" shall mean ASC Utah, ASC West, Inc.,
the Steamboat Subsidiaries and the Heavenly Subsidiaries, collectively.
"AMERICAN SKI - WEST COMMITMENT PERCENTAGE" shall mean the "Commitment
Percentage" under and as defined in the American Ski - West Credit
Agreement.
"AMERICAN SKI - WEST CREDIT AGREEMENT" shall mean the Credit Agreement
of even date herewith by and among the Agent, the Lenders, American Ski and
the American Ski - West Borrowers, as amended, modified and supplemented
from time to time.
"AMERICAN SKI - WEST LENDER AGREEMENTS" shall mean the "Lender
Agreements" under and as defined in the American Ski - West Credit
Agreement.
"AMERICAN SKI - WEST LENDER OBLIGATIONS" shall mean the "Lender
Obligations" under and as defined in the American Ski - West Credit
Agreement.
"AMERICAN SKI - WEST LOAN PARTIES" shall mean the American Ski - West
Borrowers and the American Ski-West Restricted Subsidiaries.
"AMERICAN SKI - WEST MAXIMUM REVOLVING CREDIT AMOUNT" shall mean the
"Maximum Revolving Credit Amount" under and as defined in the American Ski
- West Credit Agreement.
"AMERICAN SKI - WEST RESTRICTED SUBSIDIARIES" shall mean all
Subsidiaries of ASC Utah and ASC West, Inc., other than the American Ski -
West Unrestricted Subsidiaries.
"AMERICAN SKI - WEST REVOLVING CREDIT ADVANCES" shall mean the
"Revolving Credit Advances" under and as defined in the American Ski - West
Credit Agreement.
"AMERICAN SKI - WEST REVOLVING CREDIT NOTES" shall mean the "Revolving
Credit Notes" under and as defined in the American Ski - West Credit
Agreement.
"AMERICAN SKI - WEST SECURITY DOCUMENTS" shall mean the "Security
Documents" under and as defined in the American Ski - West Credit
Agreement.
"AMERICAN SKI - WEST TERM LOAN NOTES" shall mean the "Term Loan Notes"
under and as defined in the American Ski - West Credit Agreement.
"AMERICAN SKI - WEST UNRESTRICTED SUBSIDIARIES" shall mean Walton Pond
Apartments, a Delaware corporation, and such other Subsidiaries as may from
time to
3
time be designated by American Ski as an Unrestricted Subsidiary and as are
reasonably acceptable to the Agent.
"APPLICABLE BASE RATE" shall mean the sum of (a) the Base Rate PLUS
(b) the Base Rate Margin, as each is in effect from time to time.
"APPLICABLE LIBOR RATE" shall mean the sum of (a) the LIBOR Rate PLUS
(b) the LIBOR Rate Margin, as each is in effect from time to time.
"APPLICABLE MONEY MARKET RATE" shall mean the sum of (a) the Money
Market Rate PLUS (b) the LIBOR Rate Margin, as each is in effect from time
to time.
"APPRAISAL" shall mean an appraisal of the fair market value of
property and business, accepted and approved by the Agent, performed by an
independent appraiser selected by the Agent who is not employed by American
Ski, any of its Subsidiaries or the Agent, the form of such appraisal and
the identity of the appraiser to be acceptable to the Agent.
"APPRAISED VALUE" shall mean the fair market value of the subject
property determined by the most recent Appraisal.
"APPROVED FUND" means, with respect to any Lender that is a fund that
invests in commercial loans, any other fund that invests in commercial
loans and is managed by the same investment advisor as such Lender or by an
affiliate of such investment advisor.
"ASC EAST CONSOLIDATED EBITDA" shall mean for the most recently
completed four fiscal quarters, (a) net income or (loss) of ASC East and
its Restricted Subsidiaries on a consolidated basis determined in
accordance with generally accepted accounting principles without giving
effect to extraordinary gains and losses from sales, exchanges and other
dispositions of property not in the ordinary course of business, and
nonrecurring items and excluding from the calculation of net income all
revenues from Unrestricted Subsidiaries except to the extent received by
ASC East or its Restricted Subsidiaries in cash as a loan repayment,
dividend or other distribution, PLUS, to the extent deducted in calculating
net income, (b) the sum of, without duplication, (i) depreciation expense
of ASC East and its Restricted Subsidiaries, (ii) amortization expense of
ASC East and its Restricted Subsidiaries, (iii) consolidated interest
expense of ASC East and its Restricted Subsidiaries PLUS the non-cash
portion of consolidated interest expense on consolidated funded debt of ASC
East and its Restricted Subsidiaries, (iv) income tax expense of ASC East
and its Restricted Subsidiaries and (v) other non-cash items of ASC East
and its Restricted Subsidiaries.
4
"ASC EAST CONSOLIDATED TOTAL DEBT" shall mean the sum of (a) the
outstanding principal amount of the Revolving Credit Advances, the Term
Loans and the Swing Line Loans, (b) any claim required to be paid pursuant
to Guaranties of ASC East and its Restricted Subsidiaries, (c) the Senior
Subordinated Notes, (d) all other funded Indebtedness of ASC East and its
Restricted Subsidiaries on a consolidated basis and (e) without
duplication, the stated amount of all letters of credit issued for the
account of ASC East or any of its Restricted Subsidiaries.
"ASSIGNMENT AND ACCEPTANCE AGREEMENT" -- See Section 12.2(a) hereof.
"ATTITASH DEBENTURES" shall mean the Subordinated Debentures due 2002
issued by L.B.O. Holding, Inc. in the aggregate outstanding principal
amount as of the date hereof as set forth on SCHEDULE 5.16 hereto.
"AVAILABLE REVOLVING CREDIT AMOUNT" shall mean at any time the Maximum
Revolving Credit Amount in effect at such time (including after giving
effect to any mandatory reductions of the Maximum Revolving Credit Amount
under Section 4.1(c)), LESS the Letter of Credit Exposure and LESS the
aggregate principal amount of Swing Line Loans then outstanding.
"AVAILABLE REVOLVING CREDIT COMMITMENT" shall mean, as to any
Revolving Credit Lender at any time, an amount equal to the excess, if any,
of (a) the product of (i) such Revolving Credit Lender's Revolving Credit
Commitment Percentage multiplied by (ii) the Maximum Revolving Credit
Amount over (b) such Revolving Credit Lender's Aggregate Outstanding
Revolving Credit Extensions.
"BASE CAPITAL EXPENDITURE AMOUNT" shall mean $30,000,000.
"BASE RATE" shall mean the greater of (a) the rate of interest
announced from time to time by the Agent at its head office in Boston,
Massachusetts as its Base Rate and (b) the Federal Funds Effective Rate
plus 1/2 of 1% per annum (rounded upwards, if necessary, to the next 1/8 of
1%).
"BASE RATE LOAN" shall mean (a) any Revolving Credit Advance bearing
interest at a fluctuating rate determined by reference to the Applicable
Base Rate, (b) any portion of the Term Loans bearing interest at a
fluctuating rate determined by reference to the Applicable Base Rate and
(c) any portion of a Swing Line Loan bearing interest at a fluctuating rate
determined by reference to the Applicable Base Rate.
"BASE RATE MARGIN" shall mean a rate per annum determined in
accordance with the Pricing Schedule.
5
"BUSINESS DAY" shall mean (a) for all purposes other than as covered
by clause (b) below, any day other than a Saturday, Sunday or legal holiday
on which banks in Boston, Massachusetts are open for the conduct of a
substantial part of their commercial banking business and (b) with respect
to all notices and determinations in connection with, and payments of
principal and interest on, LIBOR Rate Loans, any day that is a Business Day
described in clause (a) and that is also a day for trading by and between
banks in U.S. Dollar deposits in the London interbank eurodollar market.
"CAPITAL ASSETS" shall mean fixed assets, both tangible (such as land,
buildings, fixtures, machinery and equipment) and intangible (such as
patents, copyrights, trademarks, franchises and goodwill); PROVIDED,
HOWEVER, that Capital Assets shall not include any item customarily charged
directly as an expense or depreciated over a useful life of twelve (12)
months or less in accordance with generally accepted accounting principles.
"CAPITAL EXPENDITURE 1998 ADJUSTMENT AMOUNT" shall mean (a) the sum of
(i) the amount of cash or cash equivalents on the consolidated balance
sheet of American Ski and its Restricted Subsidiaries as of April 30, 1998
and (ii) the amount of permitted investments made by American Ski in
Unrestricted Subsidiaries after the Closing Date from the excess net
proceeds of the IPO Gross Proceeds, LESS $25,000,000 if the sum of (i) and
(ii) is less than $50,000,000 or (b) 50% of the sum of (a)(i) and (ii)
above if the sum of (a)(i) and (ii) above exceeds $50,000,000.
"CAPITAL EXPENDITURE RATIO" shall mean the ratio, as of April 30 of
each fiscal year, of (a) Consolidated Senior Secured Debt PLUS the Unused
Revolving Credit Commitments as of such date to (b) Consolidated EBITDA for
the four-quarter period ending on such date; PROVIDED, HOWEVER, that in
calculating the Capital Expenditure Ratio as of April 30, 1998, there shall
be deducted from Consolidated Senior Secured Debt the Capital Expenditure
1998 Adjustment Amount.
"CAPITAL EXPENDITURE REINVESTMENT AMOUNT" shall mean the amount of
proceeds of Permitted Dispositions that is reinvested in Capital
Expenditures within 365 days of such Permitted Dispositions.
"CAPITAL EXPENDITURES" shall mean amounts paid or incurred, including
indebtedness incurred, by American Ski or any of its Restricted
Subsidiaries in connection with the purchase or lease by American Ski or
any of its Restricted Subsidiaries of Capital Assets that would be required
to be capitalized and shown on the balance sheet of American Ski and its
Restricted Subsidiaries in accordance with generally accepted accounting
principles.
6
"CAPITALIZED LEASE" shall mean any lease which is or should be
capitalized on the balance sheet of the lessee in accordance with generally
accepted accounting principles and Statement of Financial Accounting
Standards No. 13.
"CAPITALIZED LEASE OBLIGATIONS" shall mean the amount of the liability
reflecting the aggregate discounted amount of future payments under all
Capitalized Leases calculated in accordance with generally accepted
accounting principles and Statement of Financial Accounting Standards No.
13.
"CASH INSURANCE PROCEEDS" shall mean the proceeds received by American
Ski or any of its Restricted Subsidiaries under any key man life insurance
or property and casualty insurance policy carried by American Ski or such
Restricted Subsidiary.
"CASH PROCEEDS" shall mean, with respect to any Permitted Disposition,
the aggregate cash payments (including any cash received by way of deferred
payment pursuant to a note receivable issued in connection with such
Permitted Disposition, but only as and when received) received by American
Ski or any of its Restricted Subsidiaries from such Permitted Disposition.
"CERBERUS AMENDMENT AND WAIVER LETTER AGREEMENT" shall mean the
Cerberus Amendment and Waiver Letter Agreement dated November 3, 1997 by
and between Xxxxxxxxx LLC and American Ski as amended, modified and
supplemented from time to time and attached hereto as EXHIBIT T relating to
the exchange of the Series A Exchangeable Preferred Stock and the Senior
Exchangeable Notes into the 101/2% Repriced Convertible Exchangeable
Preferred Stock, the Certificate of Designation of American Ski
("Certificate of Designation") also attached hereto as EXHIBIT T, the
Amended and Restated Registration Rights Agreement dated as of November 3,
1997 (the "Amended and Restated Registration Rights Agreement") also
attached hereto as EXHIBIT T and the amendment of certain provisions of the
Cerberus Purchase Agreement on terms and conditions satisfactory to the
Agent.
"CERBERUS INVESTMENT" shall mean the initial purchase by Xxxxxxxxx LLC
of the Series A Exchangeable Preferred Stock and the Senior Exchangeable
Notes pursuant to the Cerberus Purchase Agreement.
"CERBERUS PURCHASE AGREEMENT" shall mean the Securities Purchase
Agreement dated as of July 2, 1997 between American Ski (f/k/a ASC
Holdings, Inc.) and Xxxxxxxxx LLC as the purchaser thereunder, as amended
by the First Amendment to Securities Purchase Agreement dated as of July
25, 1997, as further amended, modified and supplemented from time to time
and attached hereto as EXHIBIT T.
"CLOSING DATE" shall mean the date on which all of the conditions set
forth in Section 3.1 have been satisfied.
7
"CODE" shall mean the Internal Revenue Code of 1986, as amended and in
effect from time to time.
"COLLATERAL" shall mean all of the property, rights and interests of
American Ski and its Subsidiaries that are subject to the security
interests, pledges, and mortgages created by the Security Agreements.
"COMMISSION" shall mean the Securities and Exchange Commission.
"COMMITMENT PERCENTAGE" shall mean as to each Lender, the sum of its
Revolving Credit Commitment Percentage and its Term Loan Commitment
Percentage as set forth on SCHEDULE 1 hereto.
"COMPLIANCE CERTIFICATE" shall mean a certificate in the form of
EXHIBIT C hereto and executed by the chief executive officer or chief
financial officer of American Ski.
"CONSOLIDATED" and "CONSOLIDATING," when used with reference to any
term, mean that term (or the terms "combined" and "combining," as the case
may be, in the case of partnerships, joint ventures and Affiliates that are
not Subsidiaries) as applied to the accounts of American Ski (or other
specified Person) and all of its Restricted Subsidiaries (or other
specified Persons), or such of its Restricted Subsidiaries as may be
specified, consolidated (or combined) in accordance with generally accepted
accounting principles and with appropriate deductions for minority
interests in Subsidiaries, as required by generally accepted accounting
principles.
"CONSOLIDATED ADJUSTED CASH FLOW" shall mean (a) Consolidated
EBITDA (before any adjustments to reflect acquisitions, sales and
exchanges of property during such period) for each fiscal year of
American Ski and its Restricted Subsidiaries LESS (b) the sum of (i)
the lesser of actual total Capital Expenditures or $9,000,000,
representing the estimated Capital Expenditures of American Ski and
its Restricted Subsidiaries required to maintain their existing ski
resorts, and (ii) cash taxes paid.
"CONSOLIDATED DEBT SERVICE" shall mean the sum of (a) Consolidated
Interest Expense, (b) scheduled principal payments on Indebtedness for
borrowed money and (c) without duplication with clause (b), scheduled
reductions in the amount of the Consolidated Maximum Revolving Credit
Amount under clause (b) of the definition thereof, in each case for the
period under review.
"CONSOLIDATED EBITDA" shall mean for the most recently completed four
fiscal quarters, (a) net income or (loss) of American Ski and its
Restricted Subsidiaries on a consolidated basis determined in accordance
with generally accepted accounting
8
principles without giving effect to extraordinary gains and losses from
sales, exchanges and other dispositions of property not in the ordinary
course of business, and nonrecurring items and excluding from the
calculation of net income all revenues from Unrestricted Subsidiaries
except to the extent received by American Ski or its Restricted
Subsidiaries in cash as a loan repayment, dividend or other distribution,
PLUS, to the extent deducted in calculating net income, (b) the sum of,
without duplication, (i) depreciation expense of American Ski and its
Restricted Subsidiaries, (ii) amortization expense of American Ski and its
Restricted Subsidiaries, (iii) Consolidated Interest Expense PLUS the
non-cash portion of consolidated interest expense on Consolidated Funded
Debt, (iv) income tax expense of American Ski and its Restricted
Subsidiaries and (v) other non-cash items of American Ski and its
Restricted Subsidiaries including without limitation, the 1998 Stock Option
Grant.
"CONSOLIDATED EXCESS CASH FLOW" shall mean, for any period,
Consolidated EBITDA LESS the sum of (a) Consolidated Interest Expense, (b)
cash taxes paid, (c) required principal payments of Indebtedness and (d)
the Base Capital Expenditure Amount, each determined for such period.
"CONSOLIDATED FUNDED DEBT" means, as of each date of determination,
without duplication (a) all Indebtedness for borrowed money of American Ski
and its Restricted Subsidiaries on that date (including without limitation
all obligations with respect to Capitalized Leases), (b) the aggregate
amount available for drawing under all letters of credit outstanding on
that date (including the Letters of Credit) for which American Ski or any
Restricted Subsidiary is the account party (EXCLUDING HOWEVER, the
aggregate amount available for drawing under letters of credit issued to
lenders and lessors of Indebtedness of the type described in clause (a) in
support of such Indebtedness), and (c) the aggregate amount drawn under all
letters of credit (including the Letters of Credit) for which American Ski
or any Restricted Subsidiary is the account party and for which the issuer
of such letters of credit has not been reimbursed on that date.
"CONSOLIDATED INTANGIBLE ASSETS" shall mean (a) all intercompany loans
(without duplication for exclusions made in accordance with generally
accepted accounting principles) and loans to any employee or officer of
American Ski or any of its Subsidiaries, and all amounts payable to
American Ski or any of its Subsidiaries from any of the aforesaid persons,
(b) all assets which would be classified as intangible assets under
generally accepted accounting principles consistently applied, including,
without limitation, goodwill (whether representing the excess of cost over
book value of assets acquired or otherwise), patents, trademarks, trade
names, copyrights, franchises, and deferred charges (including, without
limitation, unamortized debt discount and expense, organization costs, and
research and development costs), (c) treasury stock and minority interests
in other corporations or business organizations, (d) cash set apart and
held in a sinking or other analogous fund established for the purpose of
redemption or other retirement of capital stock and (e) to the extent not
already
9
deducted from total assets, reserves for depreciation, depletion,
obsolescence and/or amortization of properties and all other reserves or
appropriations of retained earnings which, in accordance with generally
accepted accounting principles consistently applied, should be established
in connection with the business conducted by American Ski and its
Subsidiaries.
"CONSOLIDATED INTEREST EXPENSE" shall mean the cash portion of
consolidated interest expense (including commitment and letter of credit
fees) on Consolidated Funded Debt, as determined in accordance with
generally accepted accounting principles consistently applied.
"CONSOLIDATED LENDER OBLIGATIONS" shall mean the Lender Obligations
and the American Ski - West Lender Obligations.
"CONSOLIDATED MAXIMUM REVOLVING CREDIT AMOUNT" shall mean the Maximum
Revolving Credit Amount PLUS the American Ski - West Maximum Revolving
Credit Amount.
"CONSOLIDATED NET INCOME" shall mean the net income (or deficit) from
operations of American Ski and its Restricted Subsidiaries, after taxes,
determined in accordance with generally accepted accounting principles
consistently applied.
"CONSOLIDATED NET WORTH" shall mean, at any date as of which the
amount thereof shall be determined, (a) the consolidated assets of American
Ski and its Restricted Subsidiaries (excluding from assets investments in
Unrestricted Subsidiaries) LESS (b) the consolidated total liabilities of
American Ski and its Restricted Subsidiaries, determined in accordance with
generally accepted accounting principles consistently applied.
"CONSOLIDATED REVOLVING CREDIT ADVANCES" shall mean the Revolving
Credit Advances PLUS the American Ski - West Revolving Credit Advances.
"CONSOLIDATED SENIOR SECURED DEBT" shall mean the outstanding
principal amount of the Consolidated Term Loans, the Consolidated Revolving
Credit Advances, the Consolidated Swing Line Loans and all other
Consolidated Funded Debt (other than Subordinated Indebtedness).
"CONSOLIDATED SWING LINE LOANS" shall mean the Swing Line Loans PLUS
the "Swing Line Loans" as defined in the American Ski - West Credit
Agreement.
"CONSOLIDATED TERM LOANS" shall mean the Term Loans PLUS the "Term
Loans" as defined in the American Ski - West Credit Agreement.
10
"CONSOLIDATED TOTAL DEBT" shall mean the sum of (a) the outstanding
principal amount of the Consolidated Revolving Credit Advances, the
Consolidated Term Loans and the Consolidated Swing Line Loans, (b) any
claim required to be paid pursuant to Guaranties of American Ski and its
Restricted Subsidiaries, (c) the Senior Subordinated Notes, (d) all other
funded Indebtedness of American Ski and its Restricted Subsidiaries on a
consolidated basis and (e) without duplication, the stated amount of all
letters of credit issued for the account of American Ski or any Restricted
Subsidiary.
"CREDIT PARTICIPANTS" -- See Section 12.3 hereof.
"DEFAULT" shall mean an Event of Default or an event or condition
which with the passage of time or giving of notice, or both, would become
such an Event of Default.
"DIRECT UNRESTRICTED SUBSIDIARY INVESTMENTS" shall mean the sum of (a)
Investments made by American Ski and its Restricted Subsidiaries in
Unrestricted Subsidiaries in cash or cash equivalents, PLUS (b) the book
value of assets other than cash and cash equivalents and other than
Indirect Unrestricted Subsidiary Investments contributed to or invested by
American Ski and its Restricted Subsidiaries in Unrestricted Subsidiaries
LESS (c) cash dividends or distributions received by American Ski and its
Restricted Subsidiaries from such Unrestricted Subsidiaries after the date
such Investments described in clauses (a) and (b) were made.
"DISTRIBUTION" shall mean: (a) the declaration or payment of any
dividend on or in respect of any shares of any class of capital stock of
American Ski or any of its Restricted Subsidiaries, other than dividends
payable solely in shares of common stock of the corporation involved, (b)
the purchase, redemption, or other acquisition or retirement of any shares
of any class of capital stock of American Ski or any of its Restricted
Subsidiaries directly or indirectly, (c) any other distribution on or in
respect of any shares of any class of capital stock of American Ski or any
Restricted Subsidiary, (d) any setting apart or allocating any sum for the
payment of any dividend or distribution or for the purchase, redemption or
retirement of any shares of capital stock of American Ski or any Restricted
Subsidiary and (e) any payment of principal on or any retirement or
defeasance of Subordinated Indebtedness.
"EBITDA" shall mean for the most recently completed four fiscal
quarters, (a) net income or (loss) determined in accordance with generally
accepted accounting principles without giving effect to extraordinary gains
and losses from sales, exchanges and other dispositions of property not in
the ordinary course of business, and nonrecurring items and excluding from
the calculation of net income all revenues from Unrestricted Subsidiaries
except to the extent received by American Ski or its Restricted
Subsidiaries in cash as a loan repayment, dividend or other Distribution,
PLUS, to the extent deducted in calculating net income, (b) the sum of,
without
11
duplication, (i) depreciation expense, (ii) amortization expense, (iii)
interest expense PLUS the non-cash portion of interest expense on funded
debt, (iv) income tax expense and (v) other non-cash items.
"ENVIRONMENT" means soil, surface waters, groundwaters, land, stream
sediments, surface or subsurface strata, ambient air, and any environmental
medium.
"ENVIRONMENTAL LAW" means any judgment, decree, order, common law
rule, statute, act, law, code, ordinance, permit, license, rule or
regulation pertaining to environmental matters, or any federal, state,
county or local statute, regulation, code, ordinance, order or decree
relating to public health, welfare, the Environment, or to the storage,
handling, treatment, transportation, use or generation of Hazardous
Materials in or at the workplace, or to worker health or safety, whether
now existing or hereafter enacted.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time.
"EVENT OF DEFAULT" -- See Section 10.1 hereof.
"EXCESS CASH FLOW LEVERAGE RATIO" shall mean the ratio of (a)
Consolidated Senior Secured Debt PLUS the Unused Revolving Credit
Commitments to (b) Consolidated EBITDA as of the end of the relevant Excess
Cash Payment Period.
"EXCESS CASH PAYMENT DATE" shall mean the earlier of (a) the date of
delivery of the financial statements pursuant to Section 6.2 in respect of
American Ski's fiscal year then ended and (b) the date occurring 90 days
after the last day of each fiscal year of American Ski (in either case,
commencing with its fiscal year ended July 25, 1999).
"EXCESS CASH PAYMENT PERIOD" shall mean, with respect to the repayment
required on each Excess Cash Payment Date, the immediately preceding fiscal
year of American Ski and its Subsidiaries, PROVIDED that the first Excess
Cash Payment Period hereunder shall be the period from and including July
27, 1998 to and including July 25, 1999.
"EXCESS IPO PROCEEDS" shall mean the sum of (a) the Restricted Excess
IPO Proceeds and (b) the Unrestricted Excess IPO Proceeds.
"EXCESS REAL PROPERTY" shall mean unimproved parcels which constitute
part of any Mortgaged Property and are not then currently used or
contemplated (except with respect to lodging) to be used in connection with
the operation of such Mortgaged Property as a ski resort as then
configured, including lodging, other recreational uses and related
amenities.
12
"EXISTING LETTERS OF CREDIT" shall mean the Letters of Credit
described as such on SCHEDULE 2.16 hereto and issued by the Issuing Bank.
"FEE LETTER" -- See Section 2.9 hereof.
"FEDERAL FUNDS EFFECTIVE RATE" shall mean for any day, a fluctuating
interest rate per annum equal to the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published for such day (or, if
such day is not a Business Day, for the next preceding Business Day) by the
Federal Bank of New York or, if such rate is not so published for any day
that is a Business Day, the average of the quotations for such day on such
transactions received by the Bank from three Federal funds brokers of
recognized standing selected by the Agent.
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" shall mean generally
accepted accounting principles as defined by controlling pronouncements of
the Financial Accounting Standards Board, as from time to time supplemented
and amended.
"GOVERNMENTAL AUTHORITY" shall mean any nation or government, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of
or pertaining to government.
"GUARANTORS" shall mean each of American Ski, AJT, Inc., WVSAL, Inc.,
ASC Utah, ASC West, Inc., the Heavenly Subsidiaries and the Steamboat
Subsidiaries (other than Orlando Resort Corporation).
"GUARANTY AGREEMENTS" shall mean the Guaranty Agreements of even date
herewith in the form of EXHIBIT F hereto from each of the Guarantors other
than American Ski in favor of the Agent and the Lenders.
"GUARANTY" or "GUARANTEE" or "GUARANTIES" shall include any
arrangement whereby a Person is or becomes liable in respect of any
Indebtedness or other obligation of another and any other arrangement
whereby credit is extended to another obligor on the basis of any promise
of a guarantor, whether that promise is expressed in terms of an obligation
to pay the Indebtedness of such obligor, or to purchase or lease assets
under circumstances that would enable such obligor to discharge one or more
of its obligations, or to maintain the capital, the working capital,
solvency or general financial condition of such obligor, whether or not
such arrangement is listed in the balance sheet of the guarantor or
referred to in a footnote thereto.
"HAZARDOUS MATERIAL" means any pollutant, contaminant, toxic
substance, chemical substance or mixture, hazardous waste, hazardous
material, or hazardous substance, or any oil, petroleum, or petroleum
product, as defined in or pursuant to the
13
Resource Conservation and Recovery Act, as amended, the Comprehensive
Environmental Response, Compensation, and Liability Act, as amended, the
Superfund Amendment and Reauthorization Act, as amended, the Federal Clean
Water Act, as amended, the Hazardous Materials Transportation Act, as
amended, the Toxic Substances Control Act, as amended, any regulations
promulgated under these Acts, or any other Environmental Law.
"HEAVENLY SUBSIDIARIES" shall mean Heavenly Valley Ski & Resort
Corporation, Heavenly Corporation and Heavenly Valley, Limited Partnership.
"INDEBTEDNESS" shall mean, as to any Person, without duplication: (a)
all obligations of such Person for borrowed money or evidenced by bonds,
debentures, notes or similar instruments; (b) all obligations of such
Person for the deferred purchase price of property or services (including
without limitation deferred payment obligations which are part of the
consideration provided for in agreements not to compete), except trade
accounts payable and accrued liabilities arising in the ordinary course of
business which are not overdue by more than 60 days or which are being
contested in good faith by appropriate proceedings; (c) all capital lease
obligations of such Person; (d) all Indebtedness of others secured by a
lien on any properties, assets or revenues of such Person; (e) all
Indebtedness of others guaranteed by such Person; (f) all net obligations
of such Person under interest rate, commodity, foreign currency and
financial markets swaps, options, futures and other hedging obligations;
and (g) all obligations of such Person, contingent or otherwise, in respect
of letters of credit or bankers' acceptances or similar instruments.
"INDEMNITY AGREEMENTS" the Hazardous Materials Indemnification
Agreements of even date herewith from each Borrower to the Agent, each in
substantially the form of EXHIBIT N hereto.
"INDIRECT UNRESTRICTED SUBSIDIARY INVESTMENTS" shall mean (a) the book
value of Excess Real Property contributed by American Ski or any Restricted
Subsidiary to Unrestricted Subsidiaries LESS (b) cash dividends or
distributions received by American Ski or its Restricted Subsidiaries from
such Unrestricted Subsidiaries after the date such Investments were made in
excess of those referred to in clause (c) of the definition of Direct
Unrestricted Subsidiary Investments in an amount equal to the sum of
Investments described in clauses (a) and (b) of the definition of Direct
Unrestricted Subsidiary Investments.
"INTEREST PERIOD" shall mean with respect to each LIBOR Rate Loan, the
period commencing on the date of such LIBOR Rate Loan and ending one, two,
three or six months thereafter, as the Borrowers may request as provided in
Sections 2.2(a) or 2.6 hereof, PROVIDED that:
14
(a) any Interest Period (other than an Interest Period
determined pursuant to clauses (c) or (d) below) that would otherwise end
on a day that is not a Business Day shall be extended to the next
succeeding Business Day unless such Business Day falls in the next calendar
month, in which case such Interest Period shall end on the immediately
preceding Business Day;
(b) any Interest Period that begins on the last Business Day of
a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall, subject to clauses (c) and (d) below, end on the last Business Day
of a calendar month;
(c) any Interest Period with respect to a Revolving Credit
Advance that would otherwise end after the Revolving Credit Termination
Date shall end on the Revolving Credit Termination Date;
(d) any Interest Period with respect to any portion of the Term
Loans that would otherwise end after the Term Loan Maturity Date shall end
on the Term Loan Maturity Date; and
(e) notwithstanding clauses (c) and (d) above, no Interest
Period shall have a duration of less than one month, and if any Interest
Period applicable to any LIBOR Rate Loan would be for a shorter period,
such Interest Period shall not be available hereunder.
"INTEREST RATE PROTECTION AGREEMENT" shall mean any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement,
interest rate hedging agreement, interest rate floor agreement or other
similar agreement or arrangement.
"INVESTMENT" shall mean (a) any stock, evidence of Indebtedness or
other security of another Person, (b) any loan, advance, contribution to
capital, extension of credit (except for current trade and customer
accounts receivable for inventory sold or services rendered in the ordinary
course of business and payable in accordance with customary trade terms) to
another Person, (c) any purchase of (i) stock or other securities of
another Person or (ii) any business or undertaking of another Person
(whether by purchase of assets or securities), any commitment or option to
make any such purchase if, in the case of an option, the aggregate
consideration paid for such option was in excess of $100 or (d) any other
investment, in all cases whether existing on the date of this Agreement or
thereafter made.
"IPO GROSS PROCEEDS" shall mean the gross proceeds of the initial
public offering of common stock of American Ski under the Registration
Statement.
15
"ISSUING BANK" shall mean the Agent.
"KAMORI" shall mean Kamori International Corporation, a Delaware
corporation.
"KAMORI ACQUISITION" shall mean the acquisition by ASC West, Inc. of
all of the outstanding stock and partnership interests in the Steamboat
Subsidiaries and the Heavenly Subsidiaries pursuant to the Kamori
Acquisition Documents.
"KAMORI ACQUISITION DOCUMENTS" shall mean (a) the Stock Purchase
Agreement dated August 1, 1997 among Kamori, ASC West, Inc. and American
Ski, including all schedules, exhibits and amendments thereto (the "Kamori
Stock Purchase Agreement") attached hereto as EXHIBIT V and (b) all other
agreements, instruments and documents delivered in connection with the
Kamori Acquisition.
"KAMORI COMBINED ENTITIES" shall mean Kamori, the Heavenly
Subsidiaries and the Steamboat Subsidiaries, collectively.
"LEASES" shall mean all leases and other agreements under which the
Borrowers have rights to use or occupy any real property.
"LENDER AGREEMENTS" shall mean this Agreement, the Term Notes, the
Revolving Credit Notes, the Swing Line Note, the Guaranty Agreements, the
Indemnity Agreements, the Security Agreements, the applications and
reimbursement agreements relating to the Existing Letters of Credit and any
other present or future agreement from time to time entered into between
ASC East or any of its Restricted Subsidiaries and the Agent or any
Lender, each as from time to time amended or supplemented, and all
statements, reports and certificates delivered by ASC East or any of its
Restricted Subsidiaries to the Agent or any Lender in connection therewith.
"LENDER OBLIGATIONS" shall mean all present and future obligations and
Indebtedness of ASC East or any of its Restricted Subsidiaries owing to the
Agent or the Lenders under this Agreement or any other Lender Agreement,
including, without limitation, the obligations to pay the Indebtedness from
time to time evidenced by the Term Notes, the Revolving Credit Notes, the
Swing Line Note, the Reimbursement Obligations and obligations to pay
interest, commitment fees, balance deficiency fees, charges, expenses and
indemnification from time to time owed under any Lender Agreement.
"LENDERS" shall mean (a) initially, each lender listed on the
signature pages hereof, (b) any other Person who becomes a Successor Lender
hereunder in accordance with the terms of Section 12.2 hereof and (c) the
successors and assigns of the Persons described in clauses (a) and (b).
16
"LETTER OF CREDIT" shall mean a letter of credit issued by the
Issuing Bank for the account of the Borrowers in accordance with
Section 2.16 hereof.
"LETTER OF CREDIT EXPOSURE" shall mean, at any time, the sum of
(a) the Maximum Drawing Amount with respect to all Letters of Credit and
(b) all unpaid Reimbursement Obligations.
"LETTER OF CREDIT FEE" -- See Section 2.16 hereof.
"LETTER OF CREDIT PARTICIPATION" -- See Section 2.16(i) hereof.
"LEVERAGE RATIO" shall mean as of the end of any fiscal quarter the
ratio of Consolidated Total Debt as of such date to Consolidated EBITDA for
the four-quarter period ending on such date.
"LIBOR PRICING OPTION" shall mean the option granted to the Borrowers
pursuant to Section 2.6 hereof to have interest on all or a portion of the
Loans computed on the basis of the Applicable LIBOR Rate for an applicable
Interest Period.
"LIBOR RATE" shall mean for any Interest Period for any LIBOR Rate
Loan, the quotient of (a) the rate of interest determined by the Agent, at
about 10:00 a.m. (Boston time) on the LIBOR Rate Fixing Day as being the
rate at which deposits in U.S. dollars are offered to it by first-class
banks in the London interbank market for deposit for such Interest Period
in amounts comparable to the aggregate principal amount of LIBOR Rate Loans
to which such Interest Period relates, DIVIDED by (b) the difference
between one (1) minus the Reserve Requirement (expressed as a decimal)
applicable to that Interest Period. The LIBOR Rate shall be adjusted
automatically as of the effective date of any change in the Reserve
Requirement.
"LIBOR RATE FIXING DAY" shall mean, in the case of any LIBOR Rate
Loan, the second Business Day preceding the Business Day on which an
Interest Period begins.
"LIBOR RATE LOAN" shall mean any Loan hereunder upon which interest
will accrue on the basis of a formula including as a component thereof the
LIBOR Rate. The expiration date of any LIBOR Rate Loan shall be the last
day of the Interest Period applicable to such LIBOR Rate Loan.
"LIBOR RATE MARGIN" shall mean a rate per annum determined on the
first day of the applicable Interest Period in accordance with the Pricing
Schedule.
"LIEN" -- See Section 9.2 hereof.
17
"LOAN" shall mean all or a portion of the Term Loans, any Revolving
Credit Advance or any Swing Line Loan outstanding hereunder or made to the
Borrowers by the Lenders pursuant to Article 2 of this Agreement, and
"Loans" means all of such loans, collectively.
"MAJORITY LENDERS" shall mean, at any time, any two or more Lenders
holding at least 51% of the sum of the outstanding principal amount of the
Loans hereunder and the Unused Revolving Credit Commitments.
"MANAGEMENT PROJECTIONS" shall mean the Historical pro forma
Consolidated Resort Operations for 1995-1997 and projections for 1998-2002,
as well as individual resort Income Statements for the same periods,
prepared by American Ski and delivered to the Agent by American Ski on
behalf of itself and its Restricted Subsidiaries.
"MATERIAL ADVERSE EFFECT" shall mean any adverse change (or occurrence
or condition reasonably likely to produce an adverse change) in the
financial condition, properties, business, operations or prospects which is
material to (a) American Ski and its Restricted Subsidiaries as a whole or
(b) the Borrowers and their Restricted Subsidiaries as a whole.
"MAXIMUM DRAWING AMOUNT" shall mean the maximum aggregate amount that
the beneficiaries may at any time draw under outstanding Letters of Credit,
as such aggregate amount may be reduced from time to time pursuant to the
terms of the Letters of Credit.
"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)):
Prior to From and After
Subordinated Subordinated
Notes Release Date Notes Release Date
------------------ ------------------
Closing Date through May 30, 1999 $35,000,000 45,000,000
May 31, 1999 through May 30, 2000 34,850,000 44,850,000
May 31, 2000 through May 30, 2001 34,350,000 44,350,000
May 31, 2001 through May 30, 2002 32,600,000 42,600,000
May 31, 2002 through May 30, 2003 30,450,000 40,450,000
May 31, 2003 through May 30, 2004 28,250,000 38,250,000
18
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.
"MINIMUM IPO GROSS PROCEEDS" shall mean $250,000,000.
"MONEY MARKET RATE" shall mean with respect to Money Market Loans the
interest rate per annum determined by the Agent in its reasonable
discretion with reference to the Federal Funds Effective Rate.
"MONEY MARKET LOANS" shall mean any Loan hereunder bearing interest at
a fluctuating rate determined by reference to the Money Market Rate.
"MORTGAGED PROPERTIES" shall mean all real properties and interests
therein owned by American Ski or any of its Restricted Subsidiaries which
are subject to mortgage liens in favor of the Agent under the Security
Agreements.
"MORTGAGES" -- See definition of Security Agreements.
"NET CASH PROCEEDS" shall mean the Cash Proceeds (with respect to any
Permitted Disposition) or Cash Insurance Proceeds (with respect to any
casualty) net of the sum of (a) the amount of such proceeds required to be
applied to repay Indebtedness (other than the Loans) incurred or secured by
a lien on any asset disposed of in connection with such Permitted
Disposition; (b) brokerage commissions, legal fees, accounting fees,
investment banking fees, trustee's fees, finder's fees and other similar
fees and commissions, all of which amounts under this clause (b) shall be
reasonable and customary; (c) taxes payable within one year in connection
with or as a result of such transaction; (d) amounts held in escrow in
connection with any such Permitted Disposition (prior to the release
thereof); and (e) other reasonable and customary out-of-pocket costs
incurred in connection therewith.
"1998 STOCK OPTION GRANT" shall mean grants of stock options by
American Ski to its employees in fiscal year 1998 (which options may vest
in subsequent years) to purchase an aggregate of 2,475,235 shares of
American Ski's common stock.
"1997 FINANCIAL STATEMENTS" shall mean (a) the Consolidated Balance
Sheet of American Ski and its Subsidiaries as of July 27, 1997 and the
related Consolidated Statements of Operations, Cash Flows and Changes in
Stockholders' Equity for the year then ended, and the notes to such
financial statements, audited by Price Waterhouse LLP and (b) the
Consolidated Balance Sheet of the Kamori Combined Entities as of May 31,
1997 and the related Consolidated Statements of Operations,
19
Cash Flows and Changes in Stockholders' Equity for the year then ended, and
the notes to such financial statements, audited by Xxxxxx Xxxxxxxx LLP.
"NOTES" shall mean the Term Loan Notes, the Revolving Credit Notes and
the Swing Line Note.
"NOTICE OF REVOLVING CREDIT OR SWING LINE BORROWING" -- See Section
2.2(a) hereof.
"XXXXX LIFE INSURANCE POLICIES" -- See Section 8.8 hereof.
"XXXXX SHAREHOLDERS" shall mean Xxxxxx X. Xxxxx, his spouse and
children, and trusts established for his or any or all of their benefit,
collectively.
"XXXXX SUBORDINATION AGREEMENT" shall mean the Subordination Agreement
of even date herewith in substantially the form of EXHIBIT Q hereto by and
among ASC East, Xxxxxx X. Xxxxx and the Agent.
"XXXXX TAX NOTE" shall mean ASC East's Subordinated Demand Promissory
Note dated June 28, 1996 in the outstanding principal amount as of the date
hereof as set forth on SCHEDULE 5.16 hereto.
"PENSION PLAN" shall mean an employee benefit plan or other plan
maintained for the employees of American Ski or any Subsidiary as described
in Section 4021(a) of ERISA.
"PERMITTED ACQUISITIONS" shall mean acquisitions by American Ski or
any Restricted Subsidiary of all of the stock or all or substantially all
of the assets of another domestic (or Canadian) Person engaged in any line
of business substantially similar to any existing line of business of
American Ski and its Restricted Subsidiaries, PROVIDED that the following
terms and conditions are met:
(a) American Ski shall provide the Agent notice of each proposed
acquisition at least 30 days in advance of the proposed closing date,
such notice to include a reasonably detailed information package
outlining the transaction and its pro forma impact on American Ski and
its Restricted Subsidiaries and certification, with supporting
financial statements, that:
(i) no Default or Event of Default shall exist at the time
of or after giving effect to each such acquisition on a pro forma
basis;
(ii) American Ski and its Restricted Subsidiaries will
comply with the financial covenants contained herein on a pro
forma basis,
20
based on combined adjusted trailing four-quarter operating
performance, pro forma debt and pro forma debt service based on
scheduled principal payments (including any acquisition loan) and
pro forma interest on total debt at then prevailing borrowing
rates. Any pro forma adjustments to historical EBITDA of the
Person to be acquired shall be acceptable to the Lenders in their
reasonable discretion, PROVIDED that contractual and adequately
documented reductions in the former owner's compensation and/or
rental expense that will be effective as of the acquisition date
and/or other adjustments allowed by the Commission and certified
by the Borrowers' independent auditors as reasonably likely to
occur shall be deemed acceptable; and
(iii) the Board of Directors of the Person to be
acquired has approved such acquisition.
(b) Management of the acquiring Borrower shall reasonably
believe that, as a result of its ownership and management, the Person
to be acquired will achieve positive four-quarter EBITDA not later
than two years after the acquisition.
(c) (i) The maximum purchase price (exclusive of that portion
of the purchase price that may be payable solely in common stock
of American Ski) for any single proposed acquisition shall not
exceed the greater of (A) $50,000,000 or (B) 50% of American
Ski's Consolidated EBITDA for the most recent fiscal year before
giving effect to the proposed acquisition.
(ii) PROVIDED, HOWEVER, that all or any portion of the
Restricted Excess IPO Proceeds may be applied to one or more
acquisitions, the purchase price of which may exceed the
foregoing limits of clause (c)(i), PROVIDED that the purchase
price for any one or a series of related acquisitions pursuant to
this clause (c)(ii) shall in no event exceed an amount equal to
11% of consolidated total assets of American Ski.
(d) The terms and structure of such acquisitions shall be
reasonably acceptable to the Lenders and shall not subject the Agent
or the Lenders to any regulatory approvals in connection with the
exercise of any remedies under the Lender Agreements.
(e) The acquired Person shall be merged into a Restricted
Subsidiary, or if it is to be a Subsidiary of a Borrower, it shall
become an obligor under the
21
Lender Agreements on terms acceptable to the Agent and by executing
and delivering to the Agent the joinder in the form attached hereto as
EXHIBIT S.
(f) The assets or the stock so acquired shall be pledged to the
Agent on a first perfected basis, subject only to prior liens and
encumbrances associated with assumed debt otherwise permitted
hereunder, on terms and conditions required by the Agent and
consistent with the pledges of collateral provided to the Agent on the
Closing Date, together with all related appraisals, environmental
reviews, surveys, title insurance, certificates, instruments and
opinions requested by the Agent and consistent with such reviews,
surveys, certificates and opinions provided to the Agent on the
Closing Date.
"PERMITTED CAPITAL EXPENDITURES" shall mean Capital Expenditures of
American Ski and its Restricted Subsidiaries permitted under Section 9.7
hereto.
"PERMITTED DISPOSITIONS" shall mean (a) sales or dispositions of
assets of American Ski and its Restricted Subsidiaries for fair market
value in an amount not in excess of $20,000,000 in the aggregate in any
fiscal year, PROVIDED that (i) 75% of the proceeds of such sales or
dispositions must be in cash, (ii) all non-cash proceeds of such sales or
dispositions must be pledged, mortgaged or assigned to the Agent on terms
acceptable to the Agent and (iii) all cash proceeds thereof must be, within
one year following the date of such sales or dispositions, applied to
permanently reduce the Maximum Revolving Credit Amount or to prepay the
Term Loans, in accordance with their terms, or reinvested in Capital
Expenditures, Real Estate Capital Expenditures or Permitted Acquisitions,
(b) dispositions of Excess Real Property in accordance with the
requirements of Section 2.21, sales of developed real estate units in the
ordinary course of business, (d) the sale of substantially all of the
assets of or the capital stock of Orlando Resort Corporation and (e) the
sale of the Kamori residence pursuant to Section 8(b)(vii) of the Kamori
Stock Purchase Agreement.
"PERMITTED LIENS" -- See Section 9.2 hereof.
"PERSON" shall mean an individual, corporation, partnership, joint
venture, association, estate, joint stock company, trust, organization,
business, or a government or agency or political subdivision thereof.
"PRICING NOTICE" shall mean (a) with respect to a Revolving Credit
Advance which is requested to be a LIBOR Rate Loan, the applicable Notice
of Revolving Credit or Swing Line Borrowing and (b) with respect to any
portion of the Term Loans requested to be a LIBOR Rate Loan, a notice from
American Ski to the Agent in substantially the form of EXHIBIT D hereto and
meeting the requirements of Section 2.6(b) hereof.
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"PRICING SCHEDULE" shall mean the Pricing Schedule attached hereto as
SCHEDULE 2.
"REAL ESTATE CAPITAL EXPENDITURES" shall mean Capital Expenditures
paid or incurred by American Ski or any of its Restricted Subsidiaries for
the purchase, development, marketing or sale of residential real estate or
lodging operations.
"REAL ESTATE GUARANTIES" shall mean Guaranties of American Ski and its
Restricted Subsidiaries of Indebtedness of Unrestricted Subsidiaries. The
amount of any Real Estate Guaranty shall be deemed to be the lesser of (a)
an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Guaranty is made and (b) the maximum
amount for which the obligor under such Guaranty may be liable pursuant to
the terms of the instrument embodying such Guaranty, unless such primary
obligation and the maximum amount for which such obligor may be liable is
not stated or determinable, in which case the amount of such Guaranty shall
be such obligor's maximum reasonably anticipated liability in respect
thereof, as agreed upon between American Ski and the Agent.
"REFUNDED SWING LINE LOANS" -- See Section 2.20 hereof.
"REFUNDING DATE" -- See Section 2.20 hereof.
"REGISTRATION STATEMENT" shall mean the Registration Statement on Form
S-1 (No. 333-33483), as amended of American Ski, as filed with the
Commission and attached hereto as EXHIBIT U.
"REIMBURSEMENT OBLIGATIONS" shall mean (a) the Borrowers' obligations
to reimburse the Issuing Bank on account of any drawing under any Letter of
Credit and (b) any Borrower's obligation to reimburse any Revolving Credit
Lender on account of any drawing under any Existing Letter of Credit.
"REPORTABLE EVENT" shall mean an event reportable to the Pension
Benefit Guaranty Corporation under Section 4043 of Title IV of ERISA.
"RESERVE REQUIREMENT" shall mean the maximum aggregate reserve
requirement (including all basic, supplemental, marginal and other
reserves) which is imposed under Regulation D on the Banks against
"Euro-currency Liabilities" as defined in said Regulation D.
"RESTRICTED EXCESS IPO PROCEEDS" shall mean (a) $0 if IPO Gross
Proceeds are equal to or less than $275,000,000 and (b) 50% of the net
proceeds received by American Ski from IPO Gross Proceeds in excess of
$275,000,000.
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"RESTRICTED SUBSIDIARIES" shall mean Subsidiaries of American Ski, ASC
East, ASC West, Inc. or other specified parent, other than Unrestricted
Subsidiaries of American Ski, ASC East, ASC West, Inc. or other specified
parent.
"REVOLVING COMMITMENT FEE" -- see Section 2.9 hereof.
"REVOLVING CREDIT ADVANCE" shall mean any loan or advance from any
Lender to the Borrower pursuant to Section 2.1 hereof.
REVOLVING CREDIT COMMITMENT PERCENTAGE" shall mean as to each
Revolving Credit Lender, its percentage interest in the Maximum Revolving
Credit Amount as set forth on SCHEDULE 1 hereto.
"REVOLVING CREDIT LENDERS" shall mean the Revolving Credit Lenders so
identified on SCHEDULE 1 hereto.
"REVOLVING CREDIT NOTES" shall mean the Revolving Credit Notes
substantially in the form of EXHIBIT A-1 hereto executed by the Borrowers,
jointly and severally, in favor of each Revolving Credit Lender to evidence
the Revolving Credit Advances to be made by the Revolving Credit Lenders
from time to time hereunder.
"REVOLVING CREDIT TERMINATION DATE" shall mean May 31, 2004.
"SECURITY AGREEMENTS" shall mean:
(a) The Security Agreements, as amended on the date hereof from
ASC East and each of its Restricted Subsidiaries to the Agent by which
ASC East and each of its Restricted Subsidiaries has granted to the
Agent, in order to secure the Lender Obligations, a security interest
in substantially all of its assets, each in substantially the form of
EXHIBIT E-1 hereto.
(b) The Security Agreements of even date herewith from the
Guarantors to the Agent by which each of the Guarantors has granted to
the Agent, in order to secure the Lender Obligations, a security
interest in substantially all of its assets, each in substantially the
form of EXHIBIT E-2 hereto.
(c) The Fee and Leasehold Mortgage, Assignment of Leases and
Rents, Financing Statement and Security Agreements, as amended on the
date hereof (the "Mortgages") from each Borrower that owns any real
property to the Agent to secure the Lender Obligations, each in
substantially the form of EXHIBIT G hereto.
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(d) The Collateral Assignments of Leases and Rents, as amended
on the date hereof (the "Collateral Assignments of Leases") from each
Borrower that leases any real property, with respect to all Leases, to
the Agent to secure the Lender Obligations, each in substantially the
form of EXHIBIT H hereto.
(e) The Assignments in Trust, as amended on the date hereof (the
"Assignments in Trust"), from certain Borrowers to the Agent to secure
the Lender Obligations, each in the form of EXHIBIT J hereto.
(f) The Assignment of Trademarks, as amended on the date hereof
(the "Trademark Security Agreements") from each Borrower to the Agent
to secure the Lender Obligations, each in the form of EXHIBIT K
hereto.
(g) The Assignments of Licenses, Contracts and Permits, as
amended on the date hereof (the "Assignments of Licenses") from each
Borrower to the Agent to secure the Lender Obligations, each in the
form of EXHIBIT L hereto.
(h) The Stock Pledge Agreements of even date herewith (the
"Stock Pledges") pledging to the Agent the collateral described
therein (excluding stock of Unrestricted Subsidiaries) to secure the
obligations described therein, each in the form of EXHIBIT M hereto.
(i) The American Ski-West Security Documents.
(j) All other security agreements, pledge agreements, mortgages,
assignments and other instruments by which American Ski or any
Restricted Subsidiary grants or pledges to the Agent a lien on,
security interest in, or pledge or mortgage or assignment of any of
its assets.
"SENIOR EXCHANGEABLE NOTES" shall mean the 14% Senior Exchangeable
Notes due 2002 issued by American Ski under the Cerberus Purchase Agreement
in the original principal amount of $17,500,000.
"SENIOR SUBORDINATED NOTES" shall mean the $120,000,000 Senior
Subordinated Notes of ASC East, due July 16, 2006, issued pursuant to the
Senior Subordinated Notes Indenture.
"SENIOR SUBORDINATED NOTES INDENTURE" shall mean the Indenture of
Trust dated as of June 28, 1996 by and between ASC East and U.S. Trust
Company of New York, as Trustee.
25
"SERIES A EXCHANGEABLE PREFERRED STOCK" shall mean the 17,500 shares
of Series A Exchangeable Preferred Stock issued by American Ski under the
Cerberus Purchase Agreement.
"SOLVENT" or "SOLVENCY" shall mean, as to any Person, that such Person
(a) has assets having a fair value in excess of its liabilities, (b) has
assets having a fair value in excess of the amount required to pay its
liabilities on existing debts as such debts become absolute and matured and
(c) has, and expects to continue to have, access to adequate capital for
the conduct of its business and the ability to pay its debts from time to
time incurred in connection with the operation of its business as such
debts mature.
"STEAMBOAT SUBSIDIARIES" shall mean Steamboat Ski & Resort
Corporation, Steamboat Development Corporation and Orlando Resort
Corporation.
"SUBORDINATED NOTES RELEASE DATE" shall mean the date on which either
(a) the Senior Subordinated Notes are exchanged for Subordinated
Indebtedness of American Ski or are paid in full, or (b) ASC East and its
Restricted Subsidiaries may incur Senior Debt (as defined in the Senior
Subordinated Notes Indenture) in an amount equal to or exceeding
$75,000,000 pursuant to Section 4.09 of the Senior Subordinated Notes
Indenture.
"SUBORDINATED INDEBTEDNESS" shall mean (a) the Senior Subordinated
Notes, (b) the Xxxxx Tax Note, (c) the Indebtedness identified as
Subordinated Indebtedness on SCHEDULE 5.16 and (d) all other Indebtedness
of American Ski or any Restricted Subsidiary which is subordinated to the
Indebtedness of American Ski or such Restricted Subsidiary to the Agent and
the Lenders on terms and conditions approved in writing by the Agent.
"SUBSIDIARY" shall mean any Person of which American Ski or any
Restricted Subsidiary or other specified parent shall now or hereafter at
the time own, directly or indirectly through one or more Subsidiaries or
otherwise, sufficient voting stock (or other beneficial interest) to
entitle it to elect at least a majority of the board of directors or
trustees or similar managing body.
"SWING LINE COMMITMENT" shall mean $5,000,000.
"SWING LINE LENDER" -- See Section 2.18 hereof.
"SWING LINE LOANS" -- See Section 2.18 hereof.
"SWING LINE NOTE" shall mean the Swing Line Note substantially in the
form of EXHIBIT A-3 hereto executed by the Borrowers, jointly and
severally, in favor of the
26
Swing Line Lender to evidence the Swing Line Loans to be made by the Swing
Line Lender from time to time hereunder.
"SWING LINE PARTICIPATION AMOUNT" -- See Section 2.20 hereof.
"101/2% REPRICED CONVERTIBLE EXCHANGEABLE PREFERRED STOCK" shall mean
the "101/2% Repriced Convertible Exchangeable Preferred Stock" under and as
defined in the Cerberus Amendment and Waiver Letter Agreement and the
Certificate of Designation.
"TERM LOAN COMMITMENT PERCENTAGE" shall mean as to each Term Loan
Lender, its percentage interest in the Term Loans as set forth on SCHEDULE
1 hereto.
"TERM LOAN LENDERS" shall mean those Lenders so identified on SCHEDULE
1 hereto.
"TERM LOAN MATURITY DATE" shall mean May 31, 2006.
"TERM LOAN NOTES" shall mean the Term Loan Notes substantially in the
form of EXHIBIT A-2 hereto executed by the Borrowers, jointly and
severally, in favor of each Term Loan Lender to evidence the Term Loans.
"TERM LOANs" shall mean the term loans made by the Term Loan Lenders
to the Borrowers pursuant to Section 2.4 hereof.
"133/4% SUBORDINATED NOTES" shall mean the "133/4% Subordinated
Discount Notes due 2007" of ASC East as defined and described in the
Registration Statement.
"UCC" shall mean the Uniform Commercial Code in effect in the
applicable jurisdiction, as amended from time to time.
"UNIFORM CUSTOMS AND PRACTICE" shall mean the Uniform Customs and
Practice for Documentary Credits (1993 Revision) International Chamber
of Commerce publication No. 500.
"UNRESTRICTED EXCESS IPO PROCEEDS" shall mean (a) $0 if IPO Gross
Proceeds are equal to or less than $250,000,000, (b) all net proceeds
received by American Ski from any IPO Gross Proceeds in excess of
$250,000,000 but not in excess of $275,000,000 and (c) 50% of the net
proceeds received by American Ski from any IPO Gross Proceeds in excess of
$275,000,000.
"UNRESTRICTED SUBSIDIARIES" shall mean Killington West, Ltd., a
California corporation, Mountain Water Company, a Vermont corporation,
Grand Summit Resort
27
Properties, Inc., a Maine corporation, S-K-I Insurance Company, a Vermont
corporation, Club Sugarbush, a Vermont corporation, Uplands Water, Orlando
Resort Corporation, a Delaware corporation, Walton Pond Apartments and such
other Subsidiaries, other than a Borrower or a Guarantor, as may from time
to time be designated by American Ski as an Unrestricted Subsidiary and as
are reasonably acceptable to the Agent.
"UNUSED REVOLVING CREDIT COMMITMENTS" shall mean the Maximum Revolving
Credit Amount in effect at such time LESS the sum of the Aggregate
Outstanding Revolving Credit Extensions for each Revolving Credit Lender
LESS the Letter of Credit Exposure and LESS the aggregate principal amount
of Swing Line Loans then outstanding.
"UPLANDS WATER" shall mean Uplands Water Company, Inc., a Vermont
corporation.
"XXXX XXXXX" shall mean (a) the $5,100,000 Vermont Industrial
Development Authority Floating/Fixed Rate Industrial Revenue Bonds
(Xxxxxxxxx Corporation Issue - 1984 Series) and (b) the $2,130,000 Vermont
Industrial Development Authority Floating/Fixed Rate Industrial Revenue
Bonds (Mount Snow Issue - 1984 Series).
"WHOLLY-OWNED SUBSIDIARY" shall mean any Person of which American Ski;
any Restricted Subsidiary or other specified parent shall now or hereafter
at the time own, directly or indirectly through one or more Subsidiaries or
otherwise, one hundred percent (100%) of such Person's capital stock or
other beneficial interest.
"WOLF ACQUISITION AGREEMENT" shall mean the Purchase and Sale
Agreement by and between Wolf Resorts and ASC Utah dated as of May 30,
1997.
"WOLF RESORTS" shall mean Wolf Mountain Resorts, L.C., a Utah limited
liability company.
Section 1.2 ACCOUNTING TERMS. All accounting terms used and not defined
in this Agreement shall be construed in accordance with generally accepted
accounting principles consistently applied, and all financial data required to
be delivered hereunder shall be prepared in accordance with such principles.
ARTICLE 2. THE CREDITS
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Section 2.1 THE REVOLVING CREDIT.
(a) Subject to the terms and conditions of this Agreement and so long
as no Default exists, at any time prior to the Revolving Credit Termination
Date, each Revolving Credit Lender, severally and not jointly, shall make such
Revolving Credit Advances to the Borrowers as the Borrowers may from time to
time request, by notice to the Agent in accordance with Section 2.2, in an
aggregate amount (i) as to each Revolving Credit Lender, not to exceed at any
time such Lender's Revolving Credit Commitment Percentage of the Available
Revolving Credit Amount and (ii) as to all Revolving Credit Lenders, not to
exceed an amount equal to the Available Revolving Credit Amount. The
outstanding principal amount of the Revolving Credit Advances, together with all
accrued interest and other fees and charges related thereto, shall be repaid in
full on the Revolving Credit Termination Date. On the Closing Date, the
Borrowers, jointly and severally, shall execute and deliver to each Revolving
Credit Lender a Revolving Credit Note to evidence the Revolving Credit Advances
from time to time made by such Revolving Credit Lender to the Borrowers
hereunder. The Revolving Credit Lenders having aggregate Revolving Credit
Commitment Percentages in excess of 50% may from time to time in consultation
with the Borrowers establish sublimits as to the amounts of Revolving Credit
Advances that may be advanced for use by one or more Borrowers that do not
operate ski resorts.
(b) Subject to the foregoing limitations and the provisions of
Section 4.2, the Borrowers shall have the right to make prepayments reducing the
outstanding balance of Revolving Credit Advances and to request further
Revolving Credit Advances, all in accordance with Section 2.2, without other
restrictions hereunder; PROVIDED that each Revolving Credit Lender shall have
the absolute right to refuse to make any Revolving Credit Advances for so long
as there exists any Default or any other condition which would constitute a
Default upon the making of such a Revolving Credit Advance; and PROVIDED FURTHER
that during each fiscal year of the Borrowers, commencing with the fiscal year
ending July 26, 1998, there shall be a period of 30 (thirty) consecutive days,
including April 30 of each year, during which the outstanding principal amount
of all Revolving Credit Advances shall not exceed the Available Revolving Credit
Amount in effect at such time LESS $25,000,000.
Section 2.2 MAKING OF REVOLVING CREDIT ADVANCES.
(a) Each Revolving Credit Advance shall be made on notice given by
the Borrowers, or by ASC East, as agent for the Borrowers, to the Agent not
later than 12:00 noon (Boston time) on the date of the proposed borrowing (a
"Notice of Revolving Credit or Swing Line Borrowing"); PROVIDED, HOWEVER, that
if the Borrowers elect a LIBOR Pricing Option with respect to any Revolving
Credit Advance in accordance with Section 2.6 hereof, such Notice of Revolving
Credit or Swing Line Borrowing shall be given by ASC East, as agent for the
Borrowers, contemporaneously with a Pricing Notice in the manner and within the
time specified in Section 2.6. The Agent shall give the Revolving Credit
Lenders notice of each Notice of Revolving Credit or Swing Line Borrowing in
accordance with the Agent's
29
customary practice. Each such Notice of Revolving Credit or Swing Line
Borrowing shall be by telephone or telecopy, in each case confirmed immediately
in writing by ASC East, as agent for the Borrowers, in substantially the form of
EXHIBIT B hereto, specifying therein (i) the requested date of such Revolving
Credit Advance and (ii) the amount of such Revolving Credit Advance, which must
be a minimum of $100,000 and integral multiples thereof; PROVIDED, HOWEVER, that
the Swing Line Lender may request, on behalf of the Borrowers, Revolving Credit
Advances that are Base Rate Loans in other amounts pursuant to Section 2.20(a).
The Borrowers agree, jointly and severally, to indemnify and hold the Revolving
Credit Lenders harmless for any action, including the making of any Revolving
Credit Advances hereunder, or loss or expense, taken or incurred by the Agent or
the Revolving Credit Lenders in good faith reliance upon such telephone request.
At the time of the initial request for a Revolving Credit Advance made under
this Section 2.2, the Borrowers shall have provided the Agent with a Compliance
Certificate. The Borrowers hereby agree (A) that the Revolving Credit Lenders
shall be entitled to rely upon the Compliance Certificate most recently
delivered to the Agent until it is superseded by a more recent Compliance
Certificate and (B) that each request for a Revolving Credit Advance, whether by
telephone or in writing or otherwise, shall constitute a confirmation of the
representations and warranties contained in the most recent Compliance
Certificate then in the Agent's possession.
(b) Subject to the terms and conditions of this Agreement, each
Revolving Credit Lender shall make available on or before 2:00 p.m. (Boston
time) on the date of each proposed Revolving Credit Advance, to the Agent at the
Agent's address and in immediately available funds, such Lender's Revolving
Credit Commitment Percentage of such Revolving Credit Advance. After the
Agent's receipt of such funds and upon fulfillment of the applicable conditions
set forth in Article 3, the Agent will credit such funds to the Borrowers'
accounts, as directed by ASC East, on the date of the proposed Revolving Credit
Advance.
(c) Unless the Agent shall have received notice from a Revolving
Credit Lender prior to the date of any Revolving Credit Advance that such
Revolving Credit Lender will not make available to the Agent such Lender's
Revolving Credit Commitment Percentage of such Revolving Credit Advance, the
Agent may assume that such Revolving Credit Lender has made such amount
available to the Agent on the date of such Revolving Credit Advance in
accordance with and as provided in this Section 2.2 and the Agent may, in
reliance upon such assumption, make available on such date a corresponding
amount to the Borrowers. If and to the extent such Revolving Credit Lender
shall not have so made its Revolving Credit Commitment Percentage of such
Revolving Credit Advance available to the Agent and the Agent shall have made
available such corresponding amount to the Borrowers, such Revolving Credit
Lender agrees to pay to the Agent forthwith on demand, and the Borrowers agree,
jointly and severally, to repay to the Agent within two Business Days after
demand (but only after demand for payment has first been made to such Revolving
Credit Lender and such Revolving Credit Lender has failed to make such payment),
an amount equal to such corresponding amount together with interest thereon for
each day from the date the Agent shall make such amount available to the
Borrowers until the date such amount is paid or repaid to
30
the Agent, at an interest rate equal to the interest rate applicable at the time
to such Revolving Credit Advances. If such Revolving Credit Lender shall pay to
the Agent such corresponding amount, such amount so paid shall constitute such
Revolving Credit Lender's Revolving Credit Advance for purposes of this
Agreement. If the Borrowers make a repayment required by the foregoing
provisions of this Section 2.2(c) and thereafter the applicable Revolving Credit
Lender or Revolving Credit Lenders make the payments to the Agent required by
this Section 2.2(c), the Agent shall promptly refund the amount of the
Borrowers' payment.
(d) The failure of any Revolving Credit Lender to make the Revolving
Credit Advance to be made by it on any date shall not relieve any other
Revolving Credit Lender of its obligation, if any, hereunder to make its
Revolving Credit Advance on such date, but no Revolving Credit Lender shall be
responsible for the failure of any other Revolving Credit Lender to make the
Revolving Credit Advance to be made by such other Revolving Credit Lender.
Section 2.3 INTEREST ON REVOLVING CREDIT ADVANCES. Subject to the terms
of Section 2.6 relating to LIBOR Pricing Options, the Borrowers, jointly and
severally, shall pay interest on the unpaid balance of the Revolving Credit
Advances from time to time outstanding at a per annum rate equal to the
Applicable Base Rate for Revolving Credit Advances. Interest on the Revolving
Credit Advances shall be payable (a) quarterly in arrears on the last day of
each fiscal quarter, commencing January 31, 1998, for Base Rate Loans or (b)
quarterly in arrears on the last day of each fiscal quarter, for LIBOR Rate
Loans, and continuing until all of the Indebtedness of the Borrowers to the
Revolving Credit Lenders under the Revolving Credit Notes shall have been paid
in full.
Section 2.4 THE TERM LOANS. Subject to the terms and conditions of this
Agreement, on the date hereof, the Term Loan Lenders, severally and not jointly,
shall make term loans (the "Term Loans") to the Borrowers in an amount equal to
each Term Loan Lender's Term Loan Commitment Percentage of $30,000,000 as set
forth on SCHEDULE 1 hereto and the Borrowers shall execute and deliver to each
Term Loan Lender a Term Loan Note to evidence the Term Loan made by such Term
Loan Lender to the Borrowers hereunder.
Section 2.5 INTEREST ON THE TERM LOANS. Subject to the terms of Section
2.6 relating to LIBOR Pricing Options, the Borrowers, jointly and severally,
shall pay interest on the unpaid balance of the Term Loans at a per annum rate
equal to the Applicable Base Rate for the Term Loans. Interest on the Term
Loans shall be payable (a) quarterly in arrears on the last day of each fiscal
quarter, commencing January 31, 1998, for Base Rate Loans or (b) quarterly in
arrears on the last day of each fiscal quarter, for LIBOR Rate Loans, and
continuing until all of the Indebtedness of the Borrowers to the Term Loan
Lenders under the Term Loans shall have been paid in full.
31
Section 2.6 ELECTION OF LIBOR PRICING OPTIONS.
(a) Subject to all the terms and conditions hereof and so long as no
Default exists, ASC East, as agent for the Borrowers, may, by delivering a
Pricing Notice to the Agent received at or before 10:00 a.m., Boston time, on
the date two Business Days prior to the commencement of the Interest Period
selected in such Pricing Notice, elect to have all or a portion of the Term
Loans or the outstanding Revolving Credit Advances, as ASC East, as agent for
the Borrowers, may specify in such Pricing Notice, accrue and bear daily
interest during the Interest Period so selected at a per annum rate equal to the
Applicable LIBOR Rate for such Interest Period; PROVIDED, HOWEVER, that any such
election made with respect to the Term Loans or the Revolving Credit Advances
shall be in an amount not less than $5,000,000 and in increments of $1,000,000;
and PROVIDED FURTHER that no such election will be made if it would result in
there being more than ten (10) LIBOR Pricing Options in the aggregate
outstanding at any one time under this Agreement and the American Ski - West
Credit Agreement. Interest on Loans bearing interest at the Applicable LIBOR
Rate shall be payable quarterly in arrears on the last day of each fiscal
quarter and when such Loan is due (whether at maturity, by reason of
acceleration or otherwise).
(b) Each Pricing Notice shall be substantially in the form of EXHIBIT
D attached hereto and shall specify: (i) the selection of a LIBOR Pricing
Option; (ii) the effective date and amount of the Term Loan or the Revolving
Credit Advances subject to such LIBOR Pricing Option, subject to the limitations
set forth herein; and (iii) the duration of the applicable Interest Period.
Each Pricing Notice shall be irrevocable.
(c) The Agent will promptly inform each Lender of a Pricing Notice
and the Interest Period specified by the Borrowers therein. Upon determination
by the Agent of the Applicable LIBOR Rate for any Interest Period selected by
the Borrowers, the Agent will promptly inform the Borrowers and each Lender of
such Applicable LIBOR Rate so determined or, if applicable, the reason why the
Borrowers' election will not become effective.
Section 2.7 ADDITIONAL PAYMENTS. Upon the occurrence and during the
continuance of any Event of Default, the Borrowers shall, jointly and severally,
on demand, pay to the Agent, for the account of the Lenders, interest on the
unpaid principal balance of the Term Loans, the Revolving Credit Advances and
the Swing Line Loans and, to the extent permitted by law, on any overdue
installments of interest, at a rate per annum equal to the stated interest rates
applicable thereto plus 2% per annum.
Section 2.8 COMPUTATION OF INTEREST, ETC. Interest hereunder and under
the Loans shall be computed on the basis of a 360-day year for the number of
days actually elapsed. Any increase or decrease in the interest rate on the
Loans resulting from a change in the Base Rate shall be effective immediately
from the date of such change. No interest payment or interest rate charged
hereunder shall exceed the maximum rate authorized from time to time by
applicable law. The outstanding balance of the Term Notes, the Revolving Credit
Notes and
32
the Swing Line Note as reflected on the Agent's records from time to time shall
be considered correct and binding on the Borrowers and the Lenders (absent
manifest error) unless within thirty (30) days after receipt of any written
notice by the Agent or any Lender of such outstanding amount, the Borrowers or a
Lender notifies the Agent to the contrary.
Section 2.9 FEES.
(a) The Borrowers, jointly and severally, shall pay to the Agent, for
the account of each Revolving Credit Lender, a commitment fee (the "Revolving
Commitment Fee") on such Revolving Credit Lender's Available Revolving Credit
Commitment from time to time in effect from the date hereof to and including the
Revolving Credit Termination Date computed at the applicable rate set forth on
the Pricing Schedule. The Revolving Commitment Fee shall be payable quarterly
in arrears on the last day of each January, April, July and October, commencing
January 31, 1998, for the period from the date hereof through such date.
(b) The Borrowers, jointly and severally, shall pay to the Agent, for
the Agent's own account, such applicable agency fees and, for the account of the
Lenders, such applicable closing fees as are provided in a letter agreement
dated as of September 18, 1997 between American Ski and the Agent (as such
letter agreement may from time to time be amended or supplemented, the "Fee
Letter").
Section 2.10 SET-OFF. To the extent not prohibited by applicable law,
the Borrowers, jointly and severally, hereby authorize the Agent and each
Lender, without prior notice to the Borrowers, if and to the extent payment is
not promptly made when due pursuant to the Term Loan Notes, the Revolving Credit
Notes or the Swing Line Note or pursuant to any provision hereof or of any other
Lender Agreement, to charge against any account of any Borrower with the Agent
or such Lender, an amount equal to the accrued interest and principal and other
amounts from time to time then due and payable to the Agent and the Lenders
hereunder and under all other Lender Agreements, provided that the Agent shall
notify the Borrowers of any such set-off promptly thereafter.
Section 2.11 SHARING OF PAYMENTS. If any Lender shall obtain any payment
(whether voluntary, involuntary, through the exercise of any right of set-off,
or otherwise) on account of the Loans made by it in excess of its ratable share
(according to the then outstanding principal amount of the Loans) of payments on
account of the Loans obtained by all the Lenders, such Lender shall purchase
from the other Lenders such participations in the Loans held by such other
Lenders as shall cause such purchasing Lender to share such payment ratably
according to the then outstanding principal amount of the Loans with each of
such other Lenders; PROVIDED, HOWEVER, that if all or any portion of such
payment is thereafter recovered from such purchasing Lender, the purchase shall
be rescinded and the purchase price restored to the extent of such recovery,
without interest. The Borrowers agree that any Lender so purchasing a
participation in the Loans from another Lender pursuant to this Section 2.11
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may, to the fullest extent permitted by law, exercise all its rights of payment
with respect to such participation as fully as if such Lender were the direct
creditor of the Borrowers in the amount of such participation.
Section 2.12 REDUCTION OF COMMITMENT BY THE BORROWERS. The Borrowers at
their option may, at any time and from time to time, (a) irrevocably reduce in
part (in a minimum amount of $5,000,000 and in integral multiples of $1,000,000)
the unused portion of the Available Revolving Credit Amount or (b) terminate the
entire unused portion of the Available Revolving Credit Amount, in each case on
not less than seven (7) Business Days' prior written notice to the Agent. No
such reduction may be reinstated by the Borrowers.
Section 2.13 INCREASED COSTS, ETC.
(a) Anything herein to the contrary notwithstanding, if any changes
in present or future applicable law (which term "applicable law," as used in
this Agreement, includes statutes and rules and regulations thereunder and
interpretations thereof by any competent court or by any governmental or other
regulatory body or official charged with the administration or the
interpretation thereof and requests, directives, instructions and notices at any
time or from time to time heretofore or hereafter made upon or otherwise issued
to any Lender by any central bank or other fiscal, monetary or other authority,
whether or not having the force of law), including without limitation any change
according to a prescribed schedule of increasing requirements, whether or not
known or in effect as of the date hereof, shall (i) subject such Lender to any
tax, levy, impost, duty, charge, fee, deduction or withholding of any nature
with respect to this Agreement or the payment to such Lender of any amounts due
to it hereunder, or (ii) materially change the basis of taxation of payments to
such Lender of the principal of or the interest on the Loans or any other
amounts payable to such Lender hereunder, or (iii) impose or increase or render
applicable any special or supplemental deposit or reserve or similar
requirements or assessment against assets held by, or deposits in or for the
account of, or any liabilities of, or loans by an office of such Lender in
respect of the transactions contemplated herein, or (iv) impose on such Lender
any other condition or requirement with respect to this Agreement, the Term
Loans, any Revolving Credit Advance or any Swing Line Loan, and the result of
any of the foregoing is (A) to increase the cost to such Lender of making,
funding or maintaining all or any part of the Loans or its commitment hereunder,
or (B) to reduce the amount of principal, interest or other amount payable to
such Lender hereunder, or (C) to require such Lender to make any payment or to
forego any interest or other sum payable hereunder, the amount of which payment
or foregone interest or other sum is calculated by reference to the gross amount
of any sum receivable or deemed received by such Lender from the Borrowers
hereunder, then, and in each such case not otherwise provided for hereunder, the
Borrowers, jointly and severally, will upon demand made by such Lender promptly
following such Lender's receipt of notice pertaining to such matters accompanied
by calculations thereof in reasonable detail, pay to such Lender such additional
amounts as will be sufficient to compensate such Lender for such additional
cost, reduction, payment or foregone interest or other sum; PROVIDED that the
foregoing provisions
34
of this sentence shall not apply in the case of any additional cost, reduction,
payment or foregone interest or other sum resulting from any taxes charged upon
or by reference to the overall net income, profits or gains of any Lender. In
determining the additional amounts payable hereunder, the Lenders may use any
reasonable method of averaging, allocating or attributing such additional costs,
reductions, payments, foregone interest or other sums among their respective
customers.
(b) Anything herein to the contrary notwithstanding, if, after the
date hereof, any Lender shall have determined that any present or future
applicable law, rule, regulation, guideline, directive or request (whether or
not having force of law), including without limitation any change according to a
prescribed schedule of increasing requirements, whether or not known or in
effect as of the date hereof, regarding capital requirements for banks or bank
holding companies generally, or any change therein or in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by such Lender with any of the foregoing, either imposes a requirement upon such
Lender to allocate additional capital resources or increases such Lender's
requirement to allocate capital resources or such Lender's commitment to make,
or to such Lender's maintenance of, the Term Loans, the Revolving Credit
Advances or Swing Line Loans hereunder, which has or would have the effect of
reducing the return on such Lender's capital to a level below that which such
Lender could have achieved (taking into consideration such Lender's then
existing policies with respect to capital adequacy and assuming full utilization
of such Lender's capital) but for such applicability, change, interpretation,
administration or compliance, by any amount deemed by such Lender to be
material, such Lender shall promptly after its determination of such occurrence
give notice thereof to the Borrower accompanied by an opinion of counsel to such
Lender with respect to such matters, the cost of which opinion shall be paid by
the Borrowers. The Borrowers and such Lender shall thereafter attempt to
negotiate in good faith an adjustment to the compensation payable hereunder
which will adequately compensate such Lender for such reduction. If the
Borrowers and such Lender are unable to agree on such adjustment within thirty
(30) days of the date on which the Borrowers receive such notice, then
commencing on the date of such notice (but not earlier than the effective date
of any such applicability, change, interpretation, administration or
compliance), the fees payable hereunder shall increase by an amount which will,
in such Lender's reasonable determination, evidenced by calculations in
reasonable detail furnished to the Borrowers, compensate such Lender for such
reduction, such Lender's determination of such amount to be conclusive and
binding upon the Borrowers, absent manifest error. In determining such amount,
such Lender may use any reasonable methods of averaging, allocating or
attributing such reduction among its customers.
Section 2.14 CHANGED CIRCUMSTANCES. In the event that:
(a) on any date on which the Applicable LIBOR Rate would otherwise be
set the Agent shall have determined in good faith (which determination shall be
final and
35
conclusive) that adequate and fair means do not exist for ascertaining the LIBOR
Rate, as applicable; or
(b) at any time the Agent shall have determined in good faith (which
determination shall be final and conclusive) that
(i) the implementation of the LIBOR Pricing Option has been made
impracticable or unlawful by (A) the occurrence of a contingency that
materially and adversely affects the London interbank market or (B)
compliance by any Lender in good faith with any applicable law or
governmental regulation, guideline or order or interpretation or change
thereof by any Governmental Authority charged with the interpretation or
administration thereof or with any request or directive of any such
Governmental Authority (whether or not having the force of law); or
(ii) the LIBOR Rate shall no longer represent the effective cost
to the Lenders for U.S. dollar deposits in the London interbank market, as
applicable for deposits in which they regularly participate;
then, and in such event, the Agent shall so notify the Borrowers thereof. Until
the Agent notifies the Borrowers that the circumstances giving rise to such
notice no longer apply, the obligation of the Lenders and the Agent to allow
election by the Borrowers of a LIBOR Pricing Option shall be suspended. If at
the time the Agent so notifies the Borrowers, the Borrowers have previously
given the Agent a Pricing Notice with respect to a LIBOR Pricing Option, but the
LIBOR Pricing Option requested therein has not yet gone into effect, such
Pricing Notice shall automatically be deemed to be withdrawn and be of no force
or effect. Upon such date as shall be specified in such notice (which shall not
be earlier than the date such notice is given), the LIBOR Pricing Option with
respect to all LIBOR Rate Loans shall be terminated.
In the event that the LIBOR Pricing Option is suspended in accordance with
the foregoing provisions for more than sixty (60) days, the Borrowers may
request that the Lenders propose an index, and the spread above such index, for
determining interest on the Loans as an alternative to the LIBOR Rate, which
shall be an index in common usage by United States commercial banks and which
shall adequately reflect the cost of funds to the Lenders. The determination of
whether there is an appropriate index meeting the foregoing requirements, and
the determination of the spread above such index, shall be made by agreement of
all of the Lenders in their sole discretion. In the event the Borrowers and the
Lenders agree on such alternative index, appropriate amendments shall be made to
this Agreement to reflect such agreement and any particular requirements
relating to such alternative index.
Section 2.15 USE OF PROCEEDS. The proceeds of the Term Loans and the
initial Revolving Credit Advances hereunder shall be deposited in a segregated
account of ASC East
36
with the Agent and used by the Borrowers: (a) to refinance amounts outstanding,
including accrued interest, under the 1996 Credit Agreement; (b) no more than
$10,000,000 shall be used to repay in full, including accrued interest, certain
indebtedness set forth on SCHEDULE 5.16 as determined by the Borrowers; and (c)
to pay the fees and expenses associated with the transactions contemplated
hereby. The proceeds of all future Revolving Credit Advances and of the Swing
Line Loans shall be used by the Borrowers for (a) Permitted Capital
Expenditures, (b) on-going working capital requirements relating to the
Borrowers' operations and (c) general corporate purposes provided for by this
Agreement. The Borrowers will not, directly or indirectly, use any part of such
proceeds for the purpose of purchasing or carrying any margin stock within the
meaning of Regulation U of the Board of Governors of the Federal Reserve System
or to extend credit to any Person for the purpose of purchasing or carrying any
such margin stock.
Section 2.16 LETTERS OF CREDIT.
(a) Subject to the terms and conditions hereof, including
satisfaction of the conditions set forth in Sections 3.1 and 3.2 hereof, and
provided no Default has occurred and that the Issuing Bank is then generally
issuing letters of credit for its banking customers, the Issuing Bank shall at
any time prior to the Revolving Credit Termination Date, upon the request of the
Borrowers pursuant to paragraph (b) below, issue Letters of Credit for the
account of the Borrowers, PROVIDED that the aggregate face amount of all
outstanding Letters of Credit shall not at any time exceed $5,000,000. As of
the date hereof, the Issuing Bank has issued the letters of credit for the
account of the Borrowers described on SCHEDULE 2.16, which from and after the
date hereof shall be deemed to be Letters of Credit issued hereunder, and the
face amount thereof from time to time shall count against the limit set forth
above.
(b) The Borrowers may request that the Issuing Bank issue a Letter of
Credit by written notice (the "Letter of Credit Notice") given by the Borrowers
to the Issuing Bank not less than five (5) Business Days prior to the proposed
date of issuance of such Letter of Credit. The Letter of Credit Notice shall
(i) specify the proposed date of issuance, the beneficiary, amount and the
purpose of such Letter of Credit and (ii) be accompanied by a letter of credit
application furnished by the Issuing Bank.
(c) The Borrowers hereby agree, jointly and severally, to pay to the
Issuing Bank on the date on which the Issuing Bank shall be required to pay any
draft presented under any Letter of Credit, a sum (the "Reimbursement
Obligation") equal to: (i) the amount so paid under such Letter of Credit, PLUS
(ii) interest on any amount remaining unpaid by the Borrowers to the Issuing
Bank under clause (i) from and including the date on which such amount becomes
payable pursuant to clause (i) until payment in full, payable on demand, at a
per annum rate of interest equal to the rate applicable to the Revolving Credit
Advances which are Base Rate Loans under Section 2.7. If the Borrowers shall
fail to pay to the Issuing Bank the Reimbursement Obligation on the date on
which the Issuing Bank shall be required to pay any draft presented under any
Letter of Credit, the Issuing Bank shall, to the extent the
37
Borrowers have availability to request a Revolving Credit Advance, consider such
failure to be a request for a Revolving Credit Advance or, with the Agent's
consent, a Swing Line Loan, in the amount of the unpaid Reimbursement Obligation
(which request shall be deemed a confirmation that the conditions set forth in
Section 3.2 have been satisfied), and the Issuing Bank shall apply the proceeds
of such Revolving Credit Advance, or the Agent shall apply the proceeds of such
Swing Line Loan, to reimburse the Issuing Bank for the Reimbursement Obligation.
(d) The Borrowers shall, jointly and severally, quarterly in arrears
on the last day of each calendar quarter for the immediately preceding calendar
quarter or portion thereof, pay (i) a fee (in each case, a "Letter of Credit
Fee") to the Issuing Bank for the account of the Revolving Credit Lenders in
respect of each Letter of Credit issued at the request of the Borrowers equal to
the LIBOR Rate Margin for Revolving Credit Advances in effect at such time,
multiplied by the face amount of each Letter of Credit and (ii) a fronting fee
to the Issuing Bank for its account equal to 1/4% per annum multiplied by the
face amount of each Letter of Credit. The Issuing Bank shall, in turn, remit to
each Revolving Credit Lender its PRO RATA portion of such Letter of Credit Fee.
In addition, the Borrowers shall, jointly and severally, pay to the Issuing
Bank, for its own account, on the date of issuance, or any extension or renewal
of any Letter of Credit and at such other time or times as such charges are
customarily made by the Issuing Bank, the Issuing Bank's standard issuance,
processing, negotiation, amendment and administrative fees, determined in
accordance with customary fees and charges for similar facilities.
(e) Each payment by the Borrowers hereunder shall be made to the
Issuing Bank at the Issuing Bank's head office in Boston, Massachusetts in
immediately available funds. Interest on any and all amounts remaining unpaid
by the Borrowers under this Section 2.16 at any time from the date such amounts
become due and payable (whether as stated in this Section 2.16, by acceleration
or otherwise) until payment in full (whether before or after judgment) shall be
payable to the Issuing Bank on demand at the rate specified in Section 2.7 for
the overdue principal on Revolving Credit Advances which are Base Rate Loans.
(f) The obligations of the Borrowers with respect to the Letters of
Credit shall be joint and several, unconditional and irrevocable, and shall be
paid strictly in accordance with the terms of this Agreement under all
circumstances, including, without limitation, the following circumstances:
(i) any lack of validity or enforceability of the Letters
of Credit;
(ii) any amendment or waiver of or any consent to or actual
departure from this Agreement;
38
(iii) the existence of any claim, set-off, defense or
other right which the Borrowers may have at any time against any
beneficiary or any transferee of a Letter of Credit (or any Persons or
entities for which any such beneficiary or any such transferee may be
acting), the Issuing Bank or any other Person or entity, whether in
connection with this Agreement, the transactions contemplated herein
or in any other agreements or any unrelated transaction;
(iv) any statement or any other document presented under a
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(v) payment by the Issuing Bank under a Letter of Credit
against presentation by the beneficiary thereof of a draft or
certificate which does not comply with the terms of such Letter of
Credit; or
(vi) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing.
(g) The Uniform Customs and Practice shall be binding on the
Borrowers, the Revolving Credit Lenders and the Issuing Bank. The Borrowers
assume all risks of the acts or omissions of the beneficiary of each Letter of
Credit with respect to such Letter of Credit. In furtherance of, and not in
limitation of the Issuing Bank's rights and powers under the Uniform Customs and
Practice, but subject to all other provisions of this paragraph (g), it is
understood and agreed that the Issuing Bank shall not have any liability for,
and that the Borrowers assume all responsibility for: (i) the genuineness of
any signature; (ii) the form, correctness, validity, sufficiency, genuineness,
falsification and legal effect of any draft, certification or other document
required by a Letter of Credit or the authority of the Person signing the same;
(iii) the failure of any instrument to bear any reference or adequate reference
to a Letter of Credit or the failure of any Persons to note the amount of any
instrument on the reverse of a Letter of Credit or to surrender a Letter of
Credit or otherwise to comply with the terms and condition of a Letter of
Credit; (iv) the good faith or acts of any Person other than the Issuing Bank
and its agents and employees; (v) the existence, form or sufficiency or breach
or default under any agreement or instrument of any nature whatsoever; (vi) any
delay in giving or failure to give any notice, demand or protest; and (vii) any
error, omission, delay in or nondelivery of any notice or other communication,
however sent. The determination as to whether the required documents are
presented prior to the expiration of a Letter of Credit and whether such other
documents are in proper and sufficient form for compliance with a Letter of
Credit shall be made by the Issuing Bank in its sole discretion, which
determination shall be conclusive and binding upon the Borrowers absent manifest
error. It is agreed that the Issuing Bank may honor, as complying with the
terms of a Letter of Credit and this Agreement, any documents otherwise in order
and signed or issued by the beneficiary thereof. Any action, inaction or
omission on the part of the Issuing Bank under or in connection with the Letters
of Credit or any related instruments or documents, if in good faith and in
conformity with such
39
laws, regulations or commercial or banking customs as the Issuing Bank may
reasonably deem to be applicable, shall be binding upon the Borrowers, shall not
place the Issuing Bank under any liability to the Borrowers, and shall not
affect, impair or prevent the vesting of any of the Issuing Bank's rights or
powers hereunder or the Borrowers' obligation to make full reimbursement of
amounts drawn under the Letters of Credit.
(h) If the Borrowers, either in writing or orally, request or consent
to any modification or extension of a Letter of Credit or waive failure of any
draft, certificate or other documents to comply with the terms of a Letter of
Credit, the Issuing Bank shall be entitled to rely and shall be deemed to have
relied on such request, consent or waiver with respect to any action taken or
omitted by the Issuing Bank pursuant to any such request, consent or waiver, and
such extension, modification or waiver shall be binding upon the Borrowers.
(i) Each Revolving Credit Lender severally agrees that it shall be
absolutely liable, without regard to the occurrence of any Default or Event of
Default or any other condition precedent whatsoever, to the extent of such
Lender's Revolving Credit Commitment Percentage, to reimburse the Issuing Bank
on demand for the amount of each draft paid by the Issuing Bank under each
Letter of Credit to the extent that such amount is not reimbursed by the
Borrowers pursuant to paragraph (c) above (such agreement for a Revolving Credit
Lender being called herein the "Letter of Credit Participation" of such
Revolving Credit Lender).
(j) If any draft shall be presented or other demand for payment shall
be made under any Letter of Credit, the Issuing Bank shall notify the Borrowers
of the date and amount of the draft presented or demand for payment and of the
date and time when it expects to pay such draft or honor such demand for
payment. If the Borrowers fail to reimburse the Issuing Bank as provided in
paragraph (c) above on or before the date that such draft is paid or other
payment is made by the Issuing Bank, the Issuing Bank may at any time thereafter
notify the Revolving Credit Lenders of the amount of any such unpaid
Reimbursement Obligation. No later than 3:00 p.m. (Boston time) on the Business
Day next following the receipt of such notice, each Revolving Credit Lender
shall make available to the Issuing Bank, at its head office located in Boston,
Massachusetts, in immediately available funds, such Lender's Revolving Credit
Commitment Percentage of such unpaid Reimbursement Obligation, together with an
amount equal to the product of (i) the average, computed for the period referred
to in clause (iii) below, of the weighted average interest rate paid by the
Issuing Bank for federal funds acquired by the Issuing Bank during each day
included in such period, TIMES (ii) the amount equal to such Lender's Revolving
Credit Commitment Percentage of such unpaid Reimbursement Obligation, TIMES
(iii) a fraction, the numerator of which is the number of days that elapse from
and including the date the Issuing Bank paid the draft presented for honor or
otherwise made payment to the date on which such Lender's Revolving Credit
Commitment Percentage of such unpaid Reimbursement Obligation shall become
immediately available to the Issuing Bank, and the denominator of which is 360.
40
(k) Neither the Issuing Bank nor any Revolving Credit Lender nor any
of their officers, directors or employees shall be liable or responsible for:
(i) the use which may be made of any Letter of Credit or any acts or omissions
of any beneficiary or transferee in connection therewith; (ii) the validity,
sufficiency or genuineness of documents, or of any endorsement thereon, even if
such documents should prove to be in any or all respects invalid, insufficient,
fraudulent or forged; (iii) payment by the Issuing Bank against presentation of
documents which do not comply with the terms of a Letter of Credit, including
failure of any documents to bear any reference or adequate reference to a Letter
of Credit; or (iv) any other circumstances whatsoever in making or failure to
make payment under a Letter of Credit; PROVIDED, that, notwithstanding anything
in this Section 2.16 to the contrary, the Borrowers shall have a claim against
the Revolving Credit Lenders, and the Revolving Credit Lenders shall be liable
to the Borrowers, to the extent, but only to the extent, of any direct, as
opposed to consequential, damages suffered by the Borrowers which were caused by
the Issuing Bank's failure to conform to the standards of the Uniform Customs
and Practice. In furtherance and not in limitation of the foregoing, the
Issuing Bank may accept documents that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice or
information to the contrary.
Section 2.17 COLLECTION OF ACCOUNTS.
(a) American Ski and the Borrowers shall establish and maintain, at
their expense, deposit account arrangements with the Agent and the other banks
set forth on SCHEDULE 2.17 hereto and after prior written notice to the Agent,
such other banks as any Borrower may hereafter select that are acceptable to the
Agent. The banks set forth on SCHEDULE 2.17 constitute all of the banks with
whom American Ski, any Borrower and any Restricted Subsidiary has deposit
account arrangements as of the date hereof and identifies each of the deposit
accounts at such banks to an operating location of such Borrower or otherwise
describes the nature of the use of such deposit account by such Borrower.
(b) Each Borrower shall deposit all proceeds (other than amounts of
cash, not to exceed $100,000 for any location operated by such Borrower, for
opening cash at such location consistent with past practices so long as no
Default exists or has occurred) from sales of goods or services in every form,
including, without limitation, cash, checks, credit or debit card sales drafts,
credit or debit card sales or charge slips or receipts and other forms of daily
receipts, from each location of each Borrower on each Business Day into the
concentration accounts of the Borrowers identified to each Borrower location as
set forth on SCHEDULE 2.17.
(c) For purposes of calculating interest on the Lender Obligations,
the payments or other funds received pursuant to paragraph (b) above after 2:00
p.m. (Boston time) on any day will be applied (conditional upon final
collection) to the Lender Obligations one (1) Business Day following the date of
receipt of immediately available funds by the Agent from the concentration
accounts identified on SCHEDULE 2.17. For purposes of calculating the amount of
the Revolving Credit Advances or Swing Line Loans available to the Borrowers,
41
such payments will be applied (conditional upon final collection) to the Lender
Obligations on the Business Day of receipt by the Agent in the concentration
accounts identified on SCHEDULE 2.17, if such payments are received within
sufficient time (in accordance with the Agent's usual and customary practices as
in effect from time to time) to credit Borrowers' loan account on such day, and
if not, then on the next Business Day. All such payments shall be applied by
the Agent FIRST to any outstanding Swing Line Loans and SECOND, at the Agent's
election and in accordance with the provisions of Section 4.2(a), to any
outstanding Revolving Credit Advances which are Base Rate Loans, and any amounts
not so applied shall be retained in the concentration accounts until they can be
so applied.
Section 2.18 SWING LINE COMMITMENT. Subject to the terms and conditions
hereof, BankBoston, N.A. (in such capacity, the "Swing Line Lender") agrees to
make a portion of the credit otherwise available to the Borrowers hereunder,
from time to time prior to the Revolving Credit Termination Date, by making
swing line loans ("Swing Line Loans") to the Borrowers, jointly and severally,
in an aggregate principal amount not to exceed at any one time outstanding the
Swing Line Commitment; PROVIDED that (a) the aggregate principal amount of Swing
Line Loans outstanding at any time shall not exceed the Swing Line Commitment
then in effect (notwithstanding that the Swing Line Loans outstanding at any
time, when aggregated with the Swing Line Lender's other outstanding Loans
hereunder, may exceed the Swing Line Commitment then in effect) and (b) the
Borrowers shall not request, and the Swing Line Lender shall not make, any Swing
Line Loan if, after giving effect to the making of such Swing Line Loan, the
aggregate amount of the Available Revolving Credit Amount would be less than $0.
Prior to the Revolving Credit Termination Date, the Borrowers may use the Swing
Line Commitment by borrowing, repaying and reborrowing, all in accordance with
the terms and conditions hereof. Swing Line Loans shall be Base Rate Loans or
Money Market Loans only. The Borrowers may use the proceeds of Revolving Credit
Advances from time to time to repay any outstanding Swing Line Loans. The
Borrowers, jointly and severally, shall repay all outstanding Swing Line Loans
on the Revolving Credit Termination Date. On the Closing Date, the Borrowers
shall deliver to the Swing Line Lender a Swing Line Note to evidence the Swing
Line Loans from time to time made by the Swing Line Lender to the Borrowers
hereunder.
Section 2.19 PROCEDURE FOR SWING LINE BORROWING; INTEREST ON SWING LINE
LOANS. Whenever the Borrowers desire that the Swing Line Lender make Swing Line
Loans under Section 2.18, ASC East shall give the Swing Line Lender irrevocable
telephonic notice confirmed promptly in writing by delivery of a Notice of
Revolving Credit or Swing Line Borrowing (which telephonic notice must be
received by the Swing Line Lender not later than 1:00 P.M., Boston time, on the
proposed borrowing date), specifying (a) the amount to be borrowed, (b) whether
such Swing Line Loan is requested to be a Money Market Loan or a Base Rate Loan
and (c) the requested borrowing date (which shall be a Business Day prior to the
Revolving Credit Termination Date); and not later than 3:00 P.M., Boston time,
on the borrowing date specified in the notice in respect of Swing Line Loans,
the Swing Line Lender shall make the proceeds of such Swing Line Loan available
to ASC East, as agent for the
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Borrowers on such borrowing date in accordance with the instructions of ASC
East; PROVIDED, HOWEVER, that the provisions of the cash management arrangements
between the Borrowers and the Swing Line Lender, including any provisions
relating to automatic Swing Line Loans to fund daily disbursements under a
Borrower's controlled disbursement account shall supersede the foregoing
requirements. The Borrowers, jointly and severally, shall pay interest on the
unpaid balance of the Swing Line Loans from time to time outstanding at a per
annum rate equal to the Applicable Base Rate or the Money Market Rate as agreed
to by the Swing Line Lender and the Borrower at the time of making the Swing
Line Loan. Interest on the Swing Line Loans shall be payable quarterly in
arrears on the last day of each fiscal quarter, commencing January 31, 1998 and
continuing until all of the Indebtedness of the Borrowers to the Swing Line
Lender hereunder shall have been paid in full.
Section 2.20 REFUNDED SWING LINE LOANS; SWING LINE LOAN PARTICIPATIONS.
(a) The Swing Line Lender, at any time and from time to time in its
sole and absolute discretion may, and in any event not less than once each week
shall, on behalf of the Borrowers (which hereby irrevocably direct the Swing
Line Lender to act on their behalf) on one Business Day's notice given by the
Swing Line Lender no later than 12:00 noon, Boston time, request each Revolving
Credit Lender to make, and each Revolving Credit Lender hereby agrees to make, a
Revolving Credit Advance in an amount equal to such Lender's Revolving Credit
Commitment Percentage of the aggregate amount of the Swing Line Loans (the
"Refunded Swing Line Loans") outstanding on the date of such notice, to repay
the Swing Line Lender. Unless any of the events described in Section 10(f)
shall have occurred and be continuing (in which case the procedures of
Section 2.20(c) shall apply), each Revolving Credit Lender shall make the amount
of such Revolving Credit Advance available to the Agent at its office set forth
in Section 14.1 in immediately available funds, not later than 10:00 A.M.,
Boston time, one Business Day after the date of such notice. The proceeds of
such Revolving Credit Advances shall be immediately applied by the Swing Line
Lender to repay the Refunded Swing Line Loans. Effective on the day such
Revolving Credit Advances are made, the portion of the Swing Line Loans so paid
shall no longer be outstanding as Swing Line Loans and shall be outstanding as
Revolving Credit Advances and owed to the Revolving Credit Lenders in accordance
with their respective Revolving Credit Commitment Percentages. The Borrowers
irrevocably authorize the Swing Line Lender to charge the Borrowers' accounts
with the Agent (up to the amount available in each such account) to immediately
pay the amount of such Refunded Swing Line Loans to the extent amounts received
from the Revolving Credit Lenders are not sufficient to repay in full such
Refunded Swing Line Loans.
(b) The making of any Swing Line Loan hereunder shall be subject to
the satisfaction of the applicable conditions precedent thereto set forth in
Section 3.1, in the case of any Swing Line Loan to be made on the Closing Date,
and Section 3.2, in the case of all other Swing Line Loans (unless otherwise
waived in accordance with Section 11.1). The Swing Line Lender shall notify ASC
East of its election not to make Swing Line Loans
43
hereunder as a result of the failure to satisfy such conditions precedent,
unless an Event of Default of the type specified in Section 10.1(f) shall have
occurred and be continuing.
(c) If prior to the time a Revolving Credit Advance would have
otherwise been made pursuant to Section 2.20(a) one of the events described in
Section 10(f) shall have occurred and be continuing, each Revolving Credit
Lender shall, on the date such Revolving Credit Advance was to have been made
pursuant to the notice referred to in Section 2.20(a) (the "Refunding Date"),
purchase an undivided participating interest in an amount equal to (i) its
Commitment Percentage times (ii) the aggregate principal amount of Swing Line
Loans then outstanding which were to have been repaid with such Revolving Credit
Advances (the "Swing Line Participation Amount"). On the Refunding Date, each
Revolving Credit Lender shall transfer to the Swing Line Lender, in immediately
available funds, such Revolving Credit Lender's Swing Line Participation Amount
and upon receipt thereof the Swing Line Lender shall deliver to such Revolving
Credit Lender a Swing Line Loan Participation Certificate dated the date of the
Swing Line Lender's receipt of such funds and in such Swing Line Participation
Amount.
(d) Whenever, at any time after the Swing Line Lender has received
from any Revolving Credit Lender such Revolving Credit Lender's Swing Line
Participation Amount, the Swing Line Lender receives any payment on account of
the Swing Line Loans, the Swing Line Lender will distribute to such Revolving
Credit Lender its Swing Line Participation Amount (appropriately adjusted, in
the case of interest payments, to reflect the period of time during which such
Revolving Credit Lender's participating interest was outstanding and funded and,
in the case of principal and interest payments, to reflect such Revolving Credit
Lender's PRO RATA portion of such payment if such payment is not sufficient to
pay the principal of and interest on all Swing Line Loans then due); PROVIDED,
HOWEVER, that in the event that such payment received by the Swing Line Lender
is required to be returned, such Revolving Credit Lender will return to the
Swing Line Lender any portion thereof previously distributed to it by the Swing
Line Lender.
(e) Each Revolving Credit Lender's obligation to make the Loans
referred to in Section 2.20(a) and to a purchase participating interest pursuant
to Section 2.20(c) shall be absolute and unconditional and shall not be affected
by any circumstance, including, without limitation, (i) any set-off,
counterclaim, recoupment, defense or other right which such Revolving Credit
Lender or the Borrowers may have against the Swing Line Lender, the Borrowers or
any other Person for any reason whatsoever; (ii) the occurrence or continuance
of a Default or an Event of Default or the failure to satisfy any of the other
conditions specified in Section 5; (iii) any adverse change in the condition
(financial or otherwise) of the Borrowers; (iv) any breach of this Agreement or
any other Lender Agreement by the Borrowers or any other Lender; or (v) any
other circumstances, happening or event whatsoever, whether or not similar to
any of the foregoing.
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Section 2.21 RELEASE OF CERTAIN LIENS. Notwithstanding anything herein
to the contrary, the parties hereto acknowledge that the Borrowers shall have
the right to transfer to any Unrestricted Subsidiary parcels of Excess Real
Property, in each case so long as there is no Default. Upon the transfer of any
such Excess Real Property on request of ASC East, at any time so long as there
is no Default, the Agent shall release any parcel of Excess Real Property from
the Lien of the Mortgage and Security Agreements to which such parcel of Excess
Real Property is subject, provided that such release shall only be granted if
the following conditions have been met or satisfied:
(i) The Borrowers shall reimburse the Agent for any costs and
expenses it incurs arising from the transfer of the parcel of Excess Real
Property and any release of such parcel of Excess Real Property from the
Lien of the Mortgage (including, without limitation, reasonable attorneys'
fees and expenses);
(ii) No Default exists hereunder;
(iii) Each applicable municipal authority exercising
jurisdiction over the parcel of Excess Real Property has approved a lot
split ordinance or other applicable action under local law dividing the
parcel of Excess Real Property from the remainder of the Mortgaged Property
and assigning separate tax identification numbers to each;
(iv) No part of the remaining Mortgaged Property shall be part
of a tax lot affecting any portion of the parcel of Excess Real Property;
(v) All requirements under all laws, statutes, rules and
regulations (including, without limitation, all zoning and subdivision
laws, setback requirements, sideline requirements, parking ratio
requirements, use requirements and building and fire code requirements)
applicable to the Mortgaged Property necessary to accomplish the lot split
shall have been fulfilled;
(vi) As a result of the lot split, the remaining Mortgaged
Property will not be in violation of any applicable law, statute, rule or
regulation (including, without limitation, all zoning and subdivision laws,
setback requirements, sideline requirements, parking ratio requirements,
use requirements and building and fire code requirements) and all necessary
variances, if any, shall have been obtained;
(vii) Appropriate reciprocal easement agreements for the benefit
and burden of the remaining Mortgaged Property and the parcel of Excess
Real Property regarding the use of common facilities of such parcels,
including, but not limited to, open areas, ski lifts, ski trails, roadways,
parking areas, utilities, snowmaking facilities and community facilities by
the occupants of the remaining Mortgaged Property and the
45
parcel of Excess Real Property, in a form and substance acceptable to
Agent. shall be declared and recorded;
(viii) ASC East shall have delivered to Agent one or more
endorsements to the title insurance policies insuring the Lien of the
applicable Mortgage or such other evidence reasonably acceptable to the
Lender insuring that, after giving effect to such release, the title
insurance policies insuring the Lien of the applicable Mortgage are in full
force and effect and unaffected by such release; and
(ix) Borrower shall execute such documents and instruments as
Agent shall reasonably require in connection with the foregoing.
Section 2.22 GUARANTY OF AMERICAN SKI. American Ski hereby
unconditionally guaranties to the Agent and the Lenders the full and punctual
payment when due (whether at maturity, by acceleration or otherwise), and the
performance of (a) all liabilities, agreements, obligations and Indebtedness,
direct or indirect, matured or unmatured, primary or secondary, certain or
contingent, secured or unsecured of the Borrowers and their Restricted
Subsidiaries (including without limitation, costs and expenses incurred by the
Agent and the Lenders in attempting to collect or enforce any of the foregoing),
including without limitation the Lender Obligations, accrued in each case to the
date of payment and (b) the performance of all other agreements, covenants and
conditions of the Borrowers and the Restricted Subsidiaries with respect thereto
set forth in this Agreement and all other Lender Agreements. The
responsibilities and obligations of the Borrowers and the Restricted
Subsidiaries to the Agent and the Lenders described in the preceding sentence
are hereinafter referred to collectively as the "Guaranteed Obligations." The
guaranty pursuant to this Section 2.22 is an absolute, unconditional and
continuing guaranty of the full and punctual payment and performance by the
Borrowers and the Restricted Subsidiaries of the Guaranteed Obligations and not
of collectability of the Guaranteed Obligations, and is in no way conditioned
upon any requirement that the Agent or the Lenders first attempt to collect any
of the Guaranteed Obligations from the Borrowers and the Restricted Subsidiaries
or resort to any security or other means of obtaining payment of any of the
Guaranteed Obligations which the Agent or the Lenders now has or may acquire
after the date hereof, or upon any other contingency whatsoever. Upon any
default by the Borrowers or the Restricted Subsidiaries in the full and punctual
payment and performance of the Guaranteed Obligations, the liabilities and
obligations of American Ski hereunder shall, at the option of the Agent, become
forthwith due and payable to the Agent and the Lenders without demand or notice
of any nature, all of which are expressly waived by American Ski. Payments by
American Ski under this Section 2.22 may be required by the Agent or the Lenders
on any number of occasions. American Ski waives presentment, demand, protest,
notice of acceptance, notice of Guaranteed Obligations incurred and all other
notices of any kind, all defenses which may be available by virtue of any
valuation, stay, moratorium law or other similar law now or hereafter in effect,
any right to require the marshaling of assets of the Borrowers and the
Restricted Subsidiaries, and all suretyship defenses generally. Without
limiting the generality of the foregoing, American Ski
46
agrees to the provisions of any instrument evidencing, securing or otherwise
executed in connection with any Guaranteed Obligations and agrees that the
obligations of American Ski hereunder shall not be released or discharged, in
whole or in part, or otherwise affected by any rescissions, waivers, amendments
or modifications of any of the terms or provisions of any agreement evidencing
securing or otherwise executed in connection with any Guaranteed Obligation.
Until the payment and performance in full of all Guaranteed Obligations and any
and all obligations of the Borrowers and the Restricted Subsidiaries to any
affiliate of the Agent or the Lenders, American Ski shall not exercise any
rights against the Borrowers and the Restricted Subsidiaries arising as a result
of payment by American Ski hereunder, by way of subrogation or otherwise. The
payment of any amounts due with respect to any indebtedness of the Borrowers and
the Restricted Subsidiaries now or hereafter held by American Ski is hereby
subordinated to the prior payment in full of the Guaranteed Obligations.
ARTICLE 3. CONDITIONS TO LOANS AND ADVANCES
Section 3.1 CONDITIONS TO THE TERM LOANS AND THE INITIAL REVOLVING
CREDIT ADVANCE. The Lenders' obligations to make the Term Loans and the initial
Revolving Credit Advance shall be subject to compliance by the Borrowers with
their agreements contained in this Agreement, and to the condition precedent
that the Lenders shall have received each of the following, in form and
substance satisfactory to the Agent and its counsel or in the form attached
hereto as an Exhibit, as the case may be:
(a) NOTES. The Term Loan Notes and the Revolving Credit Notes duly
executed by the Borrowers.
(b) GUARANTIES. The Guaranty Agreements duly executed by AJT, Inc.,
WVSAL, Inc., ASC Utah, ASC West, Inc., the Heavenly Subsidiaries and the
Steamboat Subsidiaries.
(c) RESOLUTIONS. Copies of the resolutions of the Board of Directors
of American Ski and its Subsidiaries authorizing the execution, delivery and
performance of this Agreement, the Term Loan Notes, the Revolving Credit Notes,
the Swing Line Note, the Guaranty Agreements, the Security Agreements and the
other Lender Agreements to which the American Ski or any Restricted Subsidiary
is a party, certified by the Secretary or an Assistant Secretary (or Clerk or
Assistant Clerk) of American Ski and each of its Subsidiaries (which certificate
shall state that such resolutions are in full force and effect).
(d) INCUMBENCY. A certificate of the Secretary or an Assistant
Secretary (or Clerk or Assistant Clerk) of American Ski and each of its
Subsidiaries certifying the name and signatures of the officers of American Ski
and each of its Subsidiaries authorized to sign this Agreement, the Term Loan
Notes, the Revolving Credit Notes, the Swing Line Note, the Guaranty Agreements,
the Security Agreements, the other Lender Agreements to which
47
American Ski, any Borrower or any Subsidiary is a party and the other documents
to be delivered by American Ski and the Borrowers hereunder.
(e) CERTIFICATES OF EXISTENCE. Certificates of legal existence,
corporate or partnership good standing and foreign qualification for American
Ski, each Borrower and each other Restricted Subsidiary of American Ski of
recent date issued by the appropriate California, Colorado, Xxxxxxxx, Xxxxxxx,
Xxxxx, Xxxxxx, Xxx Xxxxxxxxx, Xxxx and Vermont Governmental Authorities.
(f) CERTIFICATES OF TAX GOOD STANDING. Certificate of tax good
standing for American Ski, each Borrower and each other Restricted Subsidiary of
American Ski of recent date issued by the appropriate California, Colorado,
Delaware, Maine, Nevada, Utah and Vermont Governmental Authorities.
(g) LEGAL OPINIONS. The opinions of Xxxxxx Xxxxxx, LeBoeuf, Lamb,
Xxxxxx & XxxXxx L.L.P. (Connecticut, California, Colorado), Wadleigh, Starr,
Xxxxxx, Xxxx & Chiesa, Reiber, Kenlan, Schwiebert, Hall & Xxxxx, Xxxxxxx Xxxxx &
Xxxxxxx and Xxxxxxxxx & Xxxxxx, counsel to American Ski, the Borrowers and their
Restricted Subsidiaries, dated the date of execution of this Agreement, in
substantially the form of EXHIBIT O attached hereto.
(h) SATISFACTION OF CONDITIONS. A certificate of the chief executive
officer or chief financial officer of American Ski and each Borrower, dated the
Closing Date, to the effect that all conditions precedent on the part of
American Ski and the Borrowers to the execution and delivery hereof and the
making of the Term Loans and the initial Revolving Credit Advance have been
satisfied.
(i) GOVERNMENTAL APPROVALS. Evidence of the receipt of all necessary
governmental authorizations, consents and approvals for the execution, delivery
and performance by American Ski and its Restricted Subsidiaries and their
Subsidiaries party thereto of this Agreement, the Term Loan Notes, the Revolving
Credit Notes, the Swing Line Note, the Guaranty Agreements, the Security
Agreements and the other Lender Agreements.
(j) CONSUMMATION OF PUBLIC OFFERING. Successful completion of
American Ski's initial public offering on terms satisfactory to the Agent and
evidence of IPO Gross Proceeds equal to or exceeding the Minimum IPO Gross
Proceeds.
(k) CONSUMMATION OF KAMORI ACQUISITION. The Kamori Acquisition shall
be consummated in accordance with the terms of the Kamori Stock Purchase
Agreement which terms have not been amended or waived since the date thereof.
(l) CLOSING FEE. Receipt by the Agent for the account of the Lenders
of the closing fees due to it pursuant to the Fee Letter.
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(m) AGENT'S FEE. Receipt by the Agent for its own account of the
fees due to it pursuant to the Fee Letter.
(n) XXXXX LIFE INSURANCE POLICIES. Assignment of the Xxxxx Life
Insurance Policies in an amount of $14,000,000 to the Agent and acknowledgment
of the assignment by the issuer of the policy.
(o) SOLVENCY CERTIFICATES. Receipt of a certificate of the chief
financial officer of American Ski and each Restricted Subsidiary, demonstrating
the solvency of American Ski and each Restricted Subsidiary.
(p) FINANCIAL CONDITION. Receipt of (i) a pro forma consolidated
balance sheet of American Ski and the Borrowers after giving effect to the
making of the Term Loans and the initial Revolving Credit Advance and receipt of
the IPO Gross Proceeds and consummation of the Kamori Acquisition, demonstrating
that at Closing, the ratio of Consolidated Funded Debt to Consolidated EBITDA
for the period ending July 31, 1997 does not exceed 6.0-to-1 and (ii)
satisfactory evidence that the sum of (A) the Unused Revolving Credit
Commitments, PLUS (B) the Unused Revolving Credit Commitments (as defined in the
American Ski - West Credit Agreement), PLUS (C) available cash and cash
equivalents of American Ski, after giving effect to the making of the Term Loans
and the initial Revolving Credit Advance at closing and receipt of the IPO Gross
Proceeds and consummation of the Kamori Acquisition, are at least $30,000,000.
(q) SECURITY AGREEMENTS. Each of the Security Agreements shall have
been duly and properly authorized, executed and delivered by the parties thereto
and shall be in full force and effect, and pursuant to the Security Agreements
the Borrowers shall have granted to the Agent first perfected, valid and binding
security interests, liens and encumbrances on all of the assets of the Borrowers
in favor of the Agent (subject only to Liens permitted under Section 9.2)
including without limitation:
(i) all fee simple and leasehold interests in and to all real
property owned or leased by the Borrowers and their Restricted Subsidiaries
other than those leases set forth on SCHEDULE 3.1(Q), and all buildings and
improvements now located or to be constructed thereon, whether now owned or
hereafter acquired;
(ii) all tangible and intangible assets of the Borrowers, whether
now owned or hereafter acquired, including without limitation all
machinery, equipment, furniture, furnishings, inventory, appliances,
contract rights, deposit accounts, cash collateral, hotel and motel
revenues, instruments, general intangibles, etc., whether now owned or
hereafter acquired, but excluding leasehold personal property interests
which the Borrowers are prohibited by the lessor from assigning and any
interest in any personal property lease agreement which the Borrowers are
prohibited from assigning;
49
(iii) all leases, tenancies, purchase and sale agreements for
the sale of condominium units or other property, operating agreements,
contract and rental agreements for the lease, sale (as permitted
hereunder), rental, occupancy, hire or use of any of Borrowers' assets,
including without limitation the Mortgaged Properties, or any portion
thereof together with all income, profits, revenues, cash collateral and
other proceeds thereof; and
(iv) all licenses, permits, trade names, patents, trademarks,
approvals and contracts.
(r) RECORDING OF MORTGAGES, FINANCING STATEMENTS, ETC. All actions
necessary or appropriate to perfect the Agent's liens and security interests in
the assets of the Borrowers and their Restricted Subsidiaries shall have been
fully performed including without limitation:
(i) the due and proper recording and filing of all of the
Mortgages, Collateral Assignments of Leases, Collateral Assignments of
Income, Assignments in Trust and Assignments of Licenses;
(ii) the filing of Uniform Commercial Code financing statements
necessary to perfect the security interests of the Agent in the assets of
the Borrowers; and
(iii) the receipt by the Agent of commitments from Lawyer's
Title Insurance Corporation to issue ALTA standard form mortgage loan
policies insuring the first priority of the Mortgages, subject only to
Permitted Liens, covering all real property of the Borrowers both as owned
in fee or held as a leasehold estate under the Leases or otherwise and
covering the real property described in the Mortgages in an aggregate
amount of not less than $75,000,000, such policies to be in form and
substance satisfactory to the Agent, including without limitation, such
endorsements and affirmative insurance as the Agent shall require with the
standard tenant's and mechanic's liens exceptions deleted and with such
portions of the survey coverage deleted as the Agent may require, and the
Agent shall also have received proof of full payment of all fees and
premiums for said policies and copies of all documents listed as exceptions
on Schedule B to each such policy.
(s) INSURANCE. The Agent shall have received (i) certificates of
insurance as to the liability hazard and other insurance maintained by the
Borrowers and their Restricted Subsidiaries on the Collateral in conformity with
the insurance requirements contained in the Security Agreements (including flood
insurance if necessary) from the insurer or an independent insurance broker
dated as of the Closing Date, identifying insurers, types of insurance,
insurance limits, and policy terms all in accordance with the provisions of the
Security Agreements; (ii) certified copies of all policies evidencing such
insurance (or
50
certificates therefor signed by the insurer or an agent authorized to bind the
insurer); and (iii) such further information and certificates from the
Borrowers, their insurers and insurance brokers as the Agent may request.
(t) LEASES. The Agent shall be satisfied with the current form of
the leases to be mortgaged to it pursuant to the Leasehold Mortgages.
(u) SURVEYS. Prior to the Closing Date, the Borrowers shall provide
the Agent with site plans or other maps acceptable to the Agent showing the
Mortgaged Properties, the dimensions and the area thereof, together with a
licensed surveyor's or civil engineer's certificate in a form acceptable to the
Agent, certifying that all existing improvements necessary for the operation of
each Mortgaged Property as presently operated in all material respects (the
"Material Improvements"), including without limitation all utilities, sewer and
water systems, snowmaking equipment (including necessary water delivery
systems), lodges, ski-lifts, parking areas, driveways and any other material
improvements are located within the boundaries of such Mortgaged Property, or if
applicable, within the boundaries of property that the Borrowers have the right
to use pursuant to its rights under United States Forest Service special use
permits. The Borrowers shall provide the Agent with a list of Material
Improvements acceptable to the Agent at least five (5) Business Days prior to
the Closing Date, together with a certificate of the Borrowers in form
acceptable to the Agent certifying that the Material Improvements constitute all
of the improvements necessary to fully operate the Mortgaged Properties as
currently operated and as contemplated to be operated. The certificate shall
also indicate those portions of the Mortgaged Properties, if any, falling within
a federally designated flood hazard area; if any portion falls within such area,
flood hazard insurance will be required by federal regulations.
(v) COMPLIANCE WITH ZONING AND OTHER LAWS. At least five (5)
Business Days prior to the Closing Date, the Borrowers shall provide opinions of
counsel or other evidence in form and substance satisfactory to the Agent's
counsel that the Mortgaged Properties, all existing and proposed improvements
thereon and the use or proposed use thereof, are in compliance in all material
respects with all zoning laws, building codes, environmental laws and other laws
and regulations applicable to the Mortgaged Properties and the use and proposed
use thereof, and that all licenses, permits and certificates of occupancy or
building permits have been issued to permit the lawful use or improvement of the
Mortgaged Properties as contemplated by the Borrowers.
(w) APPRAISALS. At least five (5) Business Days prior to the Closing
Date, the Agent shall have received, at the expense of American Ski, appraisals
in form and substance satisfactory to the Agent showing an aggregate fair market
value of the fee and leasehold interests in all real property owned or leased by
American Ski and its Restricted Subsidiaries and subject to first, perfected
mortgage liens in favor of the Agent of at least Three Hundred Fifty Million
Dollars ($350,000,000.00); PROVIDED, HOWEVER, that the appraisal
51
of The Canyons ski resort in form and substance satisfactory to the Agent shall
be received by the Agent from American Ski within twenty (20) Business Days of
the Closing Date.
(x) ENVIRONMENTAL ASSESSMENTS. The Agent shall have received site
assessment reports concerning the Mortgaged Properties, dated as of a recent
date, from environmental engineers acceptable to the Agent, such reports to be
in form and substance satisfactory to the Agent.
(y) PERMIT ASSURANCES. The Agent shall have received evidence
satisfactory to the Agent that all activities being conducted on the Mortgaged
Properties which require federal, state or local licenses or permits have been
duly licensed except where the absence of any such license would not have a
Material Adverse Effect and that such licenses or permits are in full force and
effect and have been assigned to the Agent pursuant to the Security Agreements.
(z) LEASES/SERVICE CONTRACTS The Agent shall have received copies of
all material service contracts and leases affecting any portion of the Mortgaged
Properties.
(aa) UNRESTRICTED SUBSIDIARY ACKNOWLEDGMENT. An Acknowledgment from
each Unrestricted Subsidiary in the form attached hereto as EXHIBIT R.
(bb) EXECUTION OF THE AMERICAN SKI - WEST CREDIT AGREEMENT. Execution
of the American Ski-West Credit Agreement simultaneously herewith and the
compliance by the American Ski-West Borrowers with all their agreements
contained in the American Ski-West Credit Agreement, including satisfaction of
all conditions precedent to the Lenders' obligations to extend credit
thereunder.
(cc) CERBERUS AMENDMENT AND WAIVER LETTER AGREEMENT. The Agent shall
have received a counterpart original of the Cerberus Amendment and Waiver Letter
Agreement duly executed by all parties thereto and evidence that the
transactions contemplated thereby, including, without limitation, the exchange
of the Series A Exchangeable Preferred Stock and the Senior Exchangeable Notes
into the 101/2% Repriced Convertible Exchangeable Preferred Stock has occurred
on terms satisfactory to the Agent.
(dd) MISCELLANEOUS. The Agent shall have received such other
documents, certificates and opinions as the Agent or the Lenders may reasonably
request.
Section 3.2 CONDITIONS TO ALL LOANS. The Lenders' obligations to make
any Loans pursuant to this Agreement shall be subject to compliance by the
Borrowers and the Guarantors with their agreements contained in this Agreement
and each other Lender Agreement, and to the satisfaction, at or before the
making of each Loan, of all of the following conditions precedent:
52
(a) The representations and warranties herein and those made by or on
behalf of the Borrowers in any other Lender Agreement shall be correct as of the
date on which any Loan is made, with the same effect as if made at and as of
such time (except as to representations and warranties made as of a certain
date, which shall be true and correct in all material respects as of such date,
except as to transactions permitted hereunder, and except that the references in
Article 5 to the 1997 Financial Statements shall be deemed to refer to the most
recent annual audited consolidated financial statements of American Ski and its
Subsidiaries furnished to the Agent.)
(b) On the date of any Loan hereunder, there shall exist no Default.
(c) The making of the requested Loan shall not be prohibited by any
law or governmental order or regulation applicable to the Lenders or to the
Borrowers, and all necessary consents, approvals and authorizations of any
Person for any such Loan shall have been obtained.
ARTICLE 4. PAYMENT AND REPAYMENT
Section 4.1 MANDATORY REPAYMENTS AND PREPAYMENTS.
(a) If at any time the sum of the aggregate outstanding principal
balance of all Revolving Credit Advances and all Swing Line Loans made hereunder
exceeds the Available Revolving Credit Amount, the Borrowers, jointly and
severally, shall immediately repay to the Agent for the ratable accounts of the
Revolving Credit Lenders an amount equal to such excess to be applied FIRST to
the Swing Line Loans and SECOND to the Revolving Credit Advances.
(b) The Borrowers will repay the Term Loans in eight annual
installments, with the first six installments in the amount of $300,000 each,
payable on May 31 of each year, commencing May 31, 1999, a seventh installment
of $14,000,000 due May 31, 2005 and the final installment due on the Term Loan
Maturity Date equal to the outstanding principal balance of the Term Loans,
together with accrued interest and all other amounts due hereunder in connection
therewith. The amount of the principal installments of the Term Loans are
subject to adjustment as provided in paragraph (c) below.
(c) The Borrowers shall also make prepayments of the following
amounts:
(i) Ten days following the delivery of the Mandatory Prepayment
Notice (as defined below) by the Agent following each Excess Cash Payment
Date and in connection with the relevant Excess Cash Payment Period, if the
Excess Cash Flow Leverage Ratio for such period exceeded 3.50-to-1, an
amount equal to 50% of the Consolidated Excess Cash Flow shall be applied
as a mandatory repayment of principal
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of outstanding Consolidated Term Loans and a mandatory reduction of the
Consolidated Maximum Revolving Credit Amount in accordance with clause (v)
below; PROVIDED, HOWEVER, that if ASC East is prohibited from having such
payments applied as a mandatory repayment of principal of outstanding
Consolidated Term Loans and a mandatory reduction of the Consolidated
Maximum Revolving Credit Amount because of the terms and conditions of the
Senior Subordinated Notes Indenture, such payments shall be applied as a
mandatory repayment of principal of outstanding Term Loans and a mandatory
reduction of the Maximum Revolving Credit Amount.
(ii) At any time on and after the Closing Date, if American Ski
or ASC East or any of ASC East's Restricted Subsidiaries receives Cash
Proceeds from any Permitted Disposition or receives Cash Insurance
Proceeds, an amount equal to 100% of the Net Cash Proceeds therefrom shall
be applied as a mandatory repayment of principal of outstanding Term Loans
and a mandatory reduction of the Maximum Revolving Credit Amount in
accordance with clause (v) below; PROVIDED, HOWEVER that with respect to no
more than $250,000 in the aggregate of such Net Cash Proceeds in any fiscal
year of ASC East, such Net Cash Proceeds shall not be required to be
so-applied if no Default then exists and American Ski or ASC East delivers
a certificate to the Agent together with the notice referred to in clause
(vii) below stating that such Net Cash Proceeds shall be used for Permitted
Capital Expenditures and Permitted Acquisitions by ASC East and its
Restricted Subsidiaries in compliance with this Agreement within 365 days
following the date of such Permitted Disposition or the date of receipt of
such Cash Insurance Proceeds (which certificate shall set forth the
estimates of the proceeds to be so expended); and PROVIDED FURTHER, that if
all or any portion of such Net Cash Proceeds not so-applied to the
repayment of Term Loans and a mandatory reduction of the Maximum Revolving
Credit Amount are not so used within such 365 day period, such remaining
portion shall be applied on the last day of such period as a mandatory
repayment of principal of outstanding Term Loans and a mandatory reduction
of the Maximum Revolving Credit Amount as provided in clause (v) below.
(iii)(A) At any time on and after the Closing Date upon which
American Ski or any of its Restricted Subsidiaries receives any proceeds
from any issuance of any equity interests, excluding proceeds received from
the sale or issuance of equity interests which are used to effect Permitted
Acquisitions on the date of sale or issuance of such equity interests and
the IPO Gross Proceeds, an amount equal to 100% of the cash proceeds
therefrom (net of underwriting discounts or placement discounts and
commissions and all reasonable and customary fees, costs and expenses
associated with the marketing, sale and issuance of such equity interests
paid to Persons other than Affiliates) shall be applied as a mandatory
repayment of principal of outstanding Consolidated Term Loans and a
mandatory reduction of the Consolidated Maximum Revolving Credit Amount in
accordance with clause (v) below; PROVIDED, HOWEVER that the requirement of
this clause (iii)(A) shall not apply until the proceeds received by
54
American Ski or any of its Restricted Subsidiaries from the sale or
issuance of equity interests to which this clause (iii)(A) would otherwise
apply PLUS the proceeds received by ASC East or any of its Restricted
Subsidiaries from the sale or issuance of equity interests pursuant to
clause (iii)(B) PLUS any proceeds from the incurrence of debt referred to
in clause (iv) below exceed $10,000,000 in the aggregate.
(B) At any time on and after the Closing Date upon which ASC
East or any of its Restricted Subsidiaries receives any proceeds from any
issuance of any equity interests, excluding proceeds received from the sale
or issuance of equity interests which are used to effect Permitted
Acquisitions on the date of sale or issuance of such equity interests and
the IPO Gross Proceeds, an amount equal to 100% of the cash proceeds
therefrom (net of underwriting discounts or placement discounts and
commissions paid to Persons other than Affiliates) shall be applied as a
mandatory repayment of principal of outstanding Term Loans and a mandatory
reduction of the Maximum Revolving Credit Amount in accordance with clause
(v) below; PROVIDED, HOWEVER that the requirement of this clause (iii)(B)
shall not apply until the proceeds received by ASC East or any of its
Restricted Subsidiaries from the sale or issuance of equity interests to
which this clause (iii)(B) would otherwise apply PLUS the proceeds received
by American Ski or any of its Restricted Subsidiaries from the sale or
issuance of equity interests to clause (iii)(A) PLUS any proceeds from the
incurrence of debt referred to in clause (iv) below exceed $10,000,000 in
the aggregate.
(iv)(A) At any time after the Closing Date upon which American
Ski or any of its Restricted Subsidiaries receives any proceeds from any
incurrence by American Ski or its Restricted Subsidiaries of Indebtedness,
an amount equal to 100% of the cash proceeds therefrom (net of underwriting
discounts or placement discounts and commissions paid to Persons other than
Affiliates) shall be applied as a mandatory repayment of principal of
outstanding Consolidated Term Loans and a mandatory reduction of the
Consolidated Maximum Revolving Credit Amount in accordance with clause (v)
below; PROVIDED, HOWEVER that the requirement of this clause (iv)(A) shall
not apply until the proceeds received by American Ski or any of its
Restricted Subsidiaries from any incurrence of Indebtedness to which this
clause (iv)(A) would otherwise apply PLUS the proceeds received by ASC East
or any of its Restricted Subsidiaries from any incurrence of Indebtedness
pursuant to clause (iv)(B) PLUS any proceeds from the issuance of equity
interests referred to in clause (iii) above exceed $10,000,000 in the
aggregate.
(B) At any time after the Closing Date upon which ASC East
or any of its Restricted Subsidiaries receives any proceeds from any
incurrence by ASC East or its Restricted Subsidiaries of Indebtedness, an
amount equal to 100% of the cash proceeds therefrom (net of underwriting
discounts or placement discounts and commissions paid to Persons other than
Affiliates) shall be applied as a mandatory repayment of principal of
outstanding Term Loans and a mandatory reduction of the
55
Maximum Revolving Credit Amount in accordance with clause (v) below;
PROVIDED, HOWEVER that the requirement of this clause (iv)(B) shall not
apply until the proceeds received by ASC East or any of its Restricted
Subsidiaries from any incurrence of Indebtedness to which this clause
(iv)(B) would otherwise apply PLUS the proceeds received by American Ski or
any of its Restricted Subsidiaries from one or more debt issuances pursuant
to clause (iv)(A) PLUS any proceeds from the issuance of equity interests
referred to in clause (iii) above exceed $10,000,000 in the aggregate.
(v) All mandatory prepayments pursuant to this Section 4.1(c)
will (A) be applied PRO RATA to the outstanding principal amounts of the
Term Loans or the Consolidated Term Loans and the Maximum Revolving Credit
Amount or the Consolidated Maximum Revolving Credit Amount, as applicable,
(B) reduce the remaining scheduled principal payments of the Term Loans or
the Consolidated Term Loans and the scheduled reductions of the Maximum
Revolving Credit Amount or the Consolidated Maximum Revolving Credit
Amount, as applicable, on a PRO RATA basis and (C) be made ten days
following notice from the Agent that such payment is required and
specifying the payment date (the "Mandatory Prepayment Notice."). Nothing
in this Section 4.1(c), however, shall require that the Maximum Revolving
Credit Amount or the American Ski - West Maximum Revolving Credit Amount be
reduced to an amount less than $35,000,000 and to the extent that any
reductions hereunder would have otherwise reduced the Maximum Revolving
Credit Amount or the American Ski - West Maximum Revolving Credit Amount
below $35,000,000, such excess amount shall be applied as a mandatory
prepayment of the Term Loans or the Consolidated Term Loans, as applicable,
unless waived by the Term Loan Lenders as provided in clause (vi) below.
(vi) Notwithstanding anything to the contrary contained in this
Section 4.1(c) or elsewhere in this Agreement, the Term Loan Lenders shall
have the option to waive all or any portion of a mandatory repayment of the
Consolidated Term Loans pursuant to this Section 4.1(c) (each such
repayment, a "Mandatory Repayment") upon the terms and provisions set forth
in this Section 4.1(c)(vi) ratably on the basis of their outstanding
Consolidated Term Loans. In the event any Term Loan Lender desires to
waive its right to receive all or any portion of any such Mandatory
Repayment in whole or in part, such Term Loan Lender shall so advise the
Agent no later than the close of business two Business Days after the date
of the Mandatory Prepayment Notice, which notice shall also include the
amount such Term Loan Lender desires to receive in respect of such
Mandatory Repayment. If any Term Loan Lender does not reply to the Agent
within the two Business Days, it will be deemed not to have waived any part
of such Mandatory Repayment. If any Term Loan Lender does not specify an
amount it wishes to receive, it will be deemed to have accepted 100% of the
total payment. In the event that any such Term Loan Lender waives all or
part of such right to receive all or any portion of any such Mandatory
Repayment, the Agent shall apply 100% of the amount so waived by such Term
Loan
56
Lender to a mandatory reduction of the Maximum Revolving Credit Amount or
the Consolidated Maximum Revolving Credit Amount as provided herein.
(vii) American Ski shall, within three (3) Business Days of the
Excess Cash Payment Date and the occurrence of any event described in
clauses (ii), (iii) or (iv) of this Section 4.1(c), provide the Agent with
written notice of the Consolidated Excess Cash Flow for the relevant Excess
Cash Payment Period and/or the proceeds received or to be received in
connection with the occurrence of any event described in clauses (ii),
(iii) or (iv) of this Section 4.1(c).
Section 4.2 VOLUNTARY PREPAYMENTS.
(a) The Borrowers may make prepayments to the Agent for the ratable
accounts of the Term Loan Lenders, the Swing Line Lender and the Revolving
Credit Lenders, respectively, of any outstanding principal amount of the Term
Loans, Swing Line Loans or the Revolving Credit Advances equal to $100,000 or an
integral multiple thereof which are Base Rate Loans in accordance with Section
4.3 at any time prior to 12:00 noon (Boston time) on any Business Day without
premium or penalty; PROVIDED, HOWEVER, that repayment of Revolving Credit
Advances which are Base Rate Loans may be made in other amounts as provided in
Section 2.17(c).
(b) The Borrowers may make prepayments to the Agent for the ratable
accounts of the Term Loan Lenders or the Revolving Credit Lenders, respectively,
of any outstanding principal amount of the Term Loans or any Revolving Credit
Advances equal to $5,000,000 or an integral multiple of $1,000,000 in excess
thereof which are LIBOR Rate Loans in accordance with Section 4.3 at any time
prior to 12:00 noon (Boston time) on any Business Day subject, however, to the
premiums and penalties set forth in Section 4.6.
(c) Any voluntary prepayments of the Term Loans pursuant to this
Section 4.2 will reduce the remaining scheduled principal payments on the Term
Loans PRO RATA.
Section 4.3 PAYMENT AND INTEREST CUTOFF. Notice of each prepayment
pursuant to Section 4.2 shall be given to the Agent (a) in the case of
prepayment of Base Rate Loans, not later than 12:00 noon (Boston time) one (1)
Business Day prior to the proposed date of payment and (b) in the case of
prepayment of LIBOR Rate Loans on any day other than the last day of the
Interest Period applicable thereto, not later than 12:00 noon (Boston time),
three (3) Business Days, prior to the proposed date of payment, and, in each
case, shall specify the total principal amount of the Term Loans or the
Revolving Credit Advances to be paid on such date. Notice of prepayment having
been given in compliance with this Section 4.3, the amount specified to be
prepaid shall become due and payable on the date specified for prepayment and
from and after said date (unless the Borrowers shall default in the payment
thereof) interest thereon shall cease to accrue. Unpaid interest on the
principal amount of the
57
Term Loans or any Revolving Credit Advances so prepaid accrued to the date of
prepayment shall be due on the date of prepayment.
Section 4.4 PAYMENT OR OTHER ACTIONS ON NON-BUSINESS DAYS. Whenever any
payment to be made hereunder shall be stated to be due on a day other than a
Business Day, such payment shall be made on the next succeeding Business Day,
and such extension of time shall in such case be included in the computation of
payment of interest or fees, as the case may be. In the case of any other
action the last day for performance of which shall be a day other than a
Business Day, the date for performance shall be extended to the next succeeding
Business Day.
Section 4.5 METHOD AND TIMING OF PAYMENTS.
(a) All payments required to be made pursuant to the provisions of
this Agreement and any other Lender Agreement, and all prepayments pursuant to
Section 4.1, may be charged by the Agent against any Borrower's accounts with
the Agent. Each Borrower hereby authorizes the Agent and the Lenders, without
prior notice to the Borrower but with confirming notice to such Borrower
promptly thereafter, to charge against any account of such Borrower with the
Agent or such Lender an amount equal to the accrued interest, principal and
other amounts from time to time due and payable to the Agent and the Lenders
hereunder and under all other Lender Agreements.
(b) The Borrowers shall make each payment to be made by them
hereunder not later than 12:00 noon (Boston time) on the day when due in lawful
money of the United States to the Agent at its address set forth in Section 14.1
in immediately available funds. The Agent will, after its receipt thereof,
distribute like funds relating to the payment of principal, interest or any
other amounts payable hereunder ratably to the Lenders in accordance with their
respective Commitment Percentages. Any payment made by the Borrowers to the
Agent under this Agreement or under the Notes in the manner provided in this
Agreement shall be deemed to be a payment to each of the respective Lenders,
unless the provisions of this Agreement expressly provide that any such payment
shall be solely for the account of the Agent or any specific Lender.
Section 4.6 PAYMENTS NOT AT END OF INTEREST PERIOD. If the Borrowers
for any reason make any payment of principal with respect to any LIBOR Rate Loan
on any day other than the last day of the Interest Period applicable to such
LIBOR Rate Loan, including without limitation by reason of acceleration, or fail
to borrow a LIBOR Rate Loan after electing a LIBOR Pricing Option with respect
thereto pursuant to Section 2.6, the Borrowers shall pay to the Agent, jointly
and severally, for the ratable account of the Lenders, any amounts required to
compensate the Lenders for any additional losses, costs or expenses which they
may reasonably incur as a result of such payment or failure to borrow, including
without limitation, any loss, including lost profits, costs or expenses incurred
by reason of the liquidation, reutilization or reemployment of deposits or other
funds acquired by the Lenders to fund or
58
maintain such LIBOR Rate Loan. Such compensation may include, without
limitation, an amount equal to (a) the amount of interest which would have
accrued on the amount so paid or not borrowed, for the period from the date of
such payment or failure to borrow, to the last day of the then current Interest
Period for such LIBOR Rate Loan (or, in the case of a failure to borrow, to the
last day of the Interest Period for the LIBOR Rate Loan which would have
commenced on the date of such failure to borrow), at the applicable rate of
interest for such LIBOR Rate Loan provided for herein MINUS (b) the amount of
interest (as reasonably determined by the Agent), which would accrue and become
payable to the Lenders during such period on the principal repaid or not
borrowed if the Lenders, following such repayment or failure to borrow, were to
reinvest such principal in U.S. Treasury securities selected by the Agent in an
amount equal (as nearly as may be) to the principal so repaid or not borrowed
and having a term equal (as near as may be) to such period. The Borrowers,
jointly and severally, shall pay such amount upon presentation by the Agent of
a statement setting forth the amount and the Agent's calculation thereof
pursuant hereto, which statement shall be deemed true and correct absent
manifest error.
Section 4.7 CURRENCY. All payments and prepayments provided for under
this Agreement shall be made in lawful currency of the United States of America
in immediately available funds.
Section 4.8 FOREIGN LENDERS. Each Lender (including any Successor
Lender) that is not a citizen or resident of the United States of America, a
corporation, partnership or other entity created or organized in or under the
laws of the United States of America (or any jurisdiction thereof), or any
estate or trust that is subject to federal income taxation regardless of the
source of its income (a "Non-U.S. Lender") shall deliver to the Borrowers and
the Agent (or, in the case of a Credit Participant, to the Lender from which the
related participation shall have been purchased) two copies of either U.S.
Internal Revenue Service Form 1001 or Form 4224, or, in the case of a Non-U.S.
Lender claiming exemption from U.S. federal withholding tax under Section 871(h)
or 881(c) of the Code with respect to payments of "portfolio interest," a Form
W-8, or any subsequent versions thereof or successors thereto (and, if such
Non-U.S. Lender delivers a Form W-8, an annual certificate representing that
such Non-U.S. Lender is not a "bank" for purposes of Section 881(c) of the Code,
is not a 10% shareholder (within the meaning of Section 871(h)(3)(B) of the
Code) of any of the Borrowers and is not a controlled foreign corporation
related to any of the Borrowers (within the meaning of Section 864(d)(4) of the
Code)), properly completed and duly executed by such Non-U.S. Lender claiming
complete exemption from, or a reduced rate of, U.S. federal withholding tax on
all payments by the Borrowers under this Agreement and the other Lender
Agreements. Such forms shall be delivered by each Non-U.S. Lender on or before
the date it becomes a party to this Agreement (or, in the case of any Credit
Participant, on or before the date such Credit Participant purchases the related
participation). In addition, each Non-U.S. Lender shall deliver such forms
promptly upon the obsolescence or invalidity of any form previously delivered by
such Non-U.S. Lender. Each Non-U.S. Lender shall
59
promptly notify the Borrowers at any time it determines that it is no longer in
a position to provide any previously delivered certificate to the Borrowers (or
any other form of certification adopted by the U.S. taxing authorities for such
purpose). Notwithstanding any other provision of this Section 4.8, a Non-U.S.
Lender shall not be required to deliver any form pursuant to this Section 4.8
that such Non-U.S. Lender is not legally able to deliver.
ARTICLE 5. REPRESENTATIONS AND WARRANTIES
In order to induce the Agent and the Lenders to enter into this Agreement
and to induce the Lenders to make the Loans as contemplated hereby, American Ski
and the Borrowers, jointly and severally, hereby make the following
representations and warranties:
Section 5.1 EXISTENCE, CHARTER AND FORMATION DOCUMENTS, ETC. American
Ski and each Restricted Subsidiary other than Heavenly Valley, Limited
Partnership is a corporation, and Heavenly Valley, Limited Partnership is a
limited partnership, and each of them is validly organized, legally existing and
in good standing under the laws of the jurisdiction in which it is organized and
has corporate or partnership power to own its properties and conduct its
business as now conducted and as proposed to be conducted by it. Certified
copies of the charter documents and By-Laws of American Ski and each Restricted
Subsidiary have been delivered to the Lenders and are true, accurate and
complete as of the date hereof.
Section 5.2 PRINCIPAL PLACE OF BUSINESS; LOCATION OF RECORDS. American
Ski's and each Restricted Subsidiary's principal place of business is as
described on SCHEDULE 5.2, and neither American Ski nor any Restricted
Subsidiary has had any other principal place of business during the last six
months. All of the books and records or true and complete copies thereof
relating to the accounts and contracts of American Ski and each Restricted
Subsidiary are and will be kept at such location and at the other locations
designated on SCHEDULE 5.2.
Section 5.3 QUALIFICATION. American Ski and each Restricted Subsidiary
is duly qualified, licensed and authorized to do business and is in good
standing as a foreign corporation or partnership in each jurisdiction where its
ownership or leasing of properties or the conduct of its business requires it to
be so qualified except to the extent that any failure to be so qualified would
not have a Material Adverse Effect.
Section 5.4 SUBSIDIARIES.
(a) American Ski has no Subsidiaries except for those listed on
SCHEDULE 5.4(A). All of the issued and outstanding capital stock of each
Subsidiary listed on SCHEDULE 5.4(A) is owned of record and beneficially as
described therein.
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(b) There are no transactions or relationships between American Ski
or any of its Restricted Subsidiaries, on the one hand, and any Unrestricted
Subsidiary, on the other, except as disclosed on SCHEDULE 5.4(B).
Section 5.5 POWER. The execution, delivery and performance of this
Agreement, the Term Notes, the Revolving Credit Notes, the Guaranty Agreements,
the Security Agreements and all other Lender Agreements and other documents
delivered or to be delivered by American Ski, each Borrower or any Subsidiary to
the Agent or the Lenders, and the incurrence of Indebtedness to the Lenders
hereunder or thereunder, now or hereafter owing:
(a) are within the powers of American Ski, each Borrower and each
Subsidiary party thereto, as the case may be, having been duly authorized by its
Board of Directors or other similar governing body, and, if required by law, by
its charter documents or by its By-Laws, by its stockholders or partners;
(b) do not require any approval or consent of, or filing with, any
governmental agency or other Person (except for such approvals and consents that
have been obtained and delivered to the Lenders) and are not in contravention of
law or the terms of the charter documents or By-Laws of American Ski, each
Borrower and each Subsidiary or any amendment thereof;
(c) do not and will not
(i) result in a breach of or constitute a default under any
indenture or loan or credit agreement or any other agreement, lease or
instrument to which American Ski, any Borrower or any Subsidiary is a party
or by which American Ski, any Borrower, any Subsidiary or any of their
respective properties are bound or affected, except for those breaches or
defaults which have been waived or consented to in writing or which will
not in the aggregate result in a Material Adverse Effect,
(ii) result in, or require, the creation or imposition of any
mortgage, deed of trust, pledge, lien, security interest or other charge or
encumbrance of any nature on any property now owned or hereafter acquired
by American Ski, any Borrower or any Subsidiary, except as provided in the
Lender Agreements, or
(iii) result in a violation of or default under any law, rule,
regulation, order, writ, judgment, injunction, decree, determination or
award having applicability to American Ski, any Borrower or any Subsidiary,
or to any of their respective properties.
Section 5.6 VALID AND BINDING OBLIGATIONS. This Agreement, the Term
Loan Notes, the Revolving Credit Notes, the Guaranty Agreements, the Security
Agreements and all the other Lender Agreements executed in connection herewith
and therewith constitute, or will
61
constitute when delivered, the valid and binding obligations of American Ski,
the Borrowers and their Subsidiaries parties thereto, as the case may be,
enforceable in accordance with their respective terms, except as the
enforceability thereof may be subject to bankruptcy, insolvency, moratorium and
other laws affecting the rights and remedies of creditors and secured parties
and to the exercise of judicial discretion in accordance with general equitable
principles.
Section 5.7 OTHER AGREEMENTS. Neither American Ski nor any Restricted
Subsidiary is a party to any indenture, loan or credit agreement, or any lease
or other agreement or instrument, or subject to any charter or corporate
restriction or any judgment, decree, order, rule or regulation, which is likely
to have a Material Adverse Effect, or which restricts the ability of American
Ski, any Borrower or any Subsidiary to carry out any of the provisions of this
Agreement, the Term Loan Notes, the Revolving Credit Notes, the Guaranty
Agreements, the Security Agreements or any of the Lender Agreements executed in
connection herewith and therewith.
Section 5.8 PAYMENT OF TAXES. American Ski and its Subsidiaries have
filed all tax returns which are required to be filed by them and have paid, or
made adequate provision for the payment of, all taxes which have or may become
due pursuant to said returns or to assessments received, except such as are
being contested in good faith by appropriate proceedings. All federal tax
returns of American Ski and its Subsidiaries through their fiscal year ended in
1991 have been audited by the Internal Revenue Service or are not subject to
such audit by virtue of the expiration of the applicable statute of limitation,
and the results of such audits are fully reflected in the balance sheet
contained in the 1997 Financial Statements. American Ski knows of no material
additional assessments since such date for which adequate reserves appearing in
the balance sheet contained in the 1997 Financial Statements have not been
established. American Ski and its Subsidiaries have made adequate provision for
all current taxes, and except as described on SCHEDULE 5.8, to the best of the
American Ski's knowledge there will not be any additional assessments for any
fiscal periods prior to and including that which ended on the date of said
balance sheet in excess of the amounts reserved therefor.
Section 5.9 FINANCIAL STATEMENTS.
(a) All balance sheets, statements and other financial information
furnished to the Agent and the Lenders in connection with this Agreement and the
transactions contemplated hereby (certain of which information is listed on
SCHEDULE 5.9), including, without limitation, the 1997 Financial Statements,
have been prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved (except for normal year-end
adjustments and for the absence of footnotes with interim statements) and
present fairly the consolidated financial condition of American Ski and its
Subsidiaries reported therein and all such information so furnished was true,
correct and complete as of the date thereof, in all material respects.
62
(b) To the best knowledge of American Ski and each Borrower, no facts
exist that (individually or in the aggregate) would result in any material
change in any of such projections. The Management Projections are based upon
estimates and assumptions which the senior executive and financial officers of
American Ski and the Borrowers consider reasonable, have been prepared on the
basis of the assumptions stated therein and reflect the reasonable estimates of
American Ski and the Borrowers of the results of operations and other
information projected therein.
Section 5.10 OTHER MATERIALS FURNISHED. The written information,
exhibits, memoranda or reports furnished to the Agent or the Lenders by or on
behalf of American Ski or any of its Subsidiaries in connection with the
negotiation of this Agreement, taken as a whole, does not contain any material
misstatement of fact or omit to state a material fact necessary to make the
statements contained therein not misleading.
Section 5.11 STOCK. As of the date hereof, the issued and outstanding
capital stock of American Ski is as set forth on SCHEDULE 5.4(A) hereto. There
are presently issued by American Ski's Restricted Subsidiaries and outstanding
the shares of capital stock indicated on SCHEDULE 5.4(A). American Ski and its
Subsidiaries have received the consideration for which such stock was authorized
to be issued and have otherwise complied with all legal requirements relating to
the authorization and issuance of shares of stock and all such shares are
validly issued, fully paid and non-assessable. The Borrowers and their
Restricted Subsidiaries have no other capital stock of any class outstanding.
Section 5.12 CHANGES IN CONDITION. Since the date of the balance sheets
contained in the 1997 Financial Statements, except as described in the
Registration Statement, there has been no material adverse change in the
business or assets or in the condition, financial or otherwise, of American Ski
and its Restricted Subsidiaries taken as a whole, and neither American Ski nor
any Restricted Subsidiary has entered into any transaction outside of the
ordinary course of business which is material to American Ski and its Restricted
Subsidiaries taken as a whole except for the initial public offering of American
Ski. Neither American Ski nor any Restricted Subsidiary had, as of the date
thereof, any contingent liabilities of any material amount which are not
referred to in the 1997 Financial Statements.
Section 5.13 ASSETS, LICENSES, PATENTS, TRADEMARKS, ETC.
(a) American Ski and its Restricted Subsidiaries have good and
marketable title to, or valid leasehold interests in, all of their assets, real
and personal, including the assets carried on their books and reflected in the
1997 Financial Statements, subject to no liens, charges or encumbrances, except
for (i) liens, charges and encumbrances described in SCHEDULE 5.16 and permitted
by Section 9.2 hereof, and (ii) assets sold, abandoned or otherwise disposed of
in the ordinary course of business.
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(b) American Ski and its Restricted Subsidiaries own all material
licenses, patents, patent applications, copyrights, service marks, trademarks,
trademark applications, and trade names necessary to continue to conduct their
business as heretofore conducted by them, now conducted by them and proposed to
be conducted by them, each of which is listed, together with Patent and
Trademark Office application or registration numbers, where applicable, on
SCHEDULE 5.13 hereto. American Ski and its Restricted Subsidiaries conduct
their respective businesses without infringement or claim of infringement of any
material license, patent, copyright, service xxxx, trademark, trade name, trade
secret or other intellectual property right of others. To the best knowledge of
American Ski and the Borrowers, there is no infringement or claim of
infringement by others of any material license, patent, copyright, service xxxx,
trademark, trade name, trade secret or other intellectual property right of
American Ski and its Restricted Subsidiaries.
(c) Except as set forth on SCHEDULE 5.13(C) hereto, no leasehold
personal property interest which any Borrower is prohibited by the lessor from
assigning and no interest in any personal property lease agreement which any
Borrower is prohibited from assigning is material, or taken as a whole are
material, to the operations of any such Borrower.
Section 5.14 LITIGATION. Except as described on SCHEDULE 5.14 or the
most recent Compliance Certificate, there is no litigation, at law or in equity,
or any proceeding before any federal, state, provincial or municipal board or
other governmental or administrative agency pending or, to the knowledge of
American Ski and the Borrowers, threatened, or any basis therefor, which
involves a material risk of any judgment or liability which could have a
Material Adverse Effect, and no judgment, decree, or order of any federal,
state, provincial or municipal court, board or other governmental or
administrative agency has been issued against American Ski or any of its
Restricted Subsidiaries which has or may have a Material Adverse Effect.
Section 5.15 PENSION PLANS. No employee benefit plan established or
maintained by American Ski or any of its Subsidiaries or any other Person a
member of the same "control group," as American Ski or any of its Subsidiaries
(a "Pension Affiliate"), within the meaning of Section 302(f)(6)(b) of ERISA,
(including any multi-employer plan to which American Ski or any of its
Subsidiaries contributes) which is subject to Part 3 of Subtitle B of Title I of
the ERISA, had a material accumulated funding deficiency (as such term is
defined in Section 302 of ERISA) as of the last day of the most recent fiscal
year of such plan ended prior to the date hereof, or would have had an
accumulated funding deficiency (as so defined) on such day if such year were the
first year of such plan to which Part 3 of Subtitle B of Title I of ERISA
applied, and no material liability under Title IV of ERISA has been, or is
expected by American Ski or any of its Subsidiaries to be, incurred with respect
to any such plan by American Ski or any of its Subsidiaries or any Pension
Affiliate. The execution, delivery and performance by American Ski and the
Borrowers of this Agreement and the other Lender Agreements executed on the date
hereof will not involve any prohibited transaction within the
64
meaning of ERISA or Section 4975 of the Code. American Ski and its Subsidiaries
have no Pension Plan other than those described on SCHEDULE 5.15.
Section 5.16 OUTSTANDING INDEBTEDNESS. After application of the proceeds
of the Term Loans and the initial Revolving Credit Advance, the outstanding
amount of Consolidated Funded Debt and Guaranties of borrowed money of American
Ski and its Restricted Subsidiaries as of the date hereof is correctly set forth
on SCHEDULE 5.16 hereto, and said Schedule correctly describes the credit
agreements, guaranties, leases and other instruments pursuant to which such
Indebtedness has been incurred and all liens, charges and encumbrances securing
such Indebtedness. Said schedule also describes all agreements and other
arrangements pursuant to which American Ski or any of its Restricted Subsidiary
may borrow any money.
Section 5.17 ENVIRONMENTAL MATTERS. Except as set forth on SCHEDULE
5.17:
(a) Neither American Ski, any Restricted Subsidiary nor any operator
of any of their respective properties is in violation, or to American Ski's or
any Borrower's knowledge is in alleged violation, of any Environmental Law,
which violation would have a Material Adverse Effect.
(b) Neither American Ski, any Restricted Subsidiary nor any operator
of any of their respective properties has received notice from any third party,
including without limitation any federal, state, county, or local governmental
authority, (i) that it has been identified as a potentially responsible party
under the Comprehensive Environmental Response, Compensation and Liability Act
of 1980 as amended ("CERCLA") or any equivalent state law, with respect to any
site or location; (ii) that any Hazardous Materials which it has generated,
transported or disposed of, has been found at any site at which a federal,
state, county, or local agency or other third party has conducted or has ordered
American Ski, any Restricted Subsidiary or another third party or parties (E.G.
a committee of potentially responsible parties) to conduct a remedial
investigation, removal or other response action pursuant to any Environmental
Law; or (iii) that it is or shall be a named party to any claim, action, cause
of action, complaint (contingent or otherwise) or legal or administrative
proceeding arising out of any actual or alleged release or threatened release of
Hazardous Materials. For purposes of this Agreement, "release" means any past
or present releasing, spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, disposing or dumping of any
Hazardous Material into the Environment, or the uncontained presence of any
Hazardous Material in the Environment.
(c) (i) American Ski, each Restricted Subsidiary and each operator of
any real property owned or operated by any Borrower is in compliance, in all
material respects, with all provisions of the Environmental Laws relating to the
handling, manufacturing, processing, generation, storage or disposal of any
Hazardous Materials; (ii) to the best of American Ski's and each Borrower's
knowledge, no portion of property owned, operated or
65
controlled by American Ski or any of its Restricted Subsidiaries has been used
for the handling, manufacturing, processing, generation, storage or disposal of
Hazardous Materials except in accordance with applicable Environmental Laws;
(iii) to the best of American Ski's and each Borrower's knowledge, there have
been no releases or threatened releases of Hazardous Materials on, upon, into or
from any property owned, operated or controlled by American Ski or any
Restricted Subsidiary, which releases could have a Material Adverse Effect; (iv)
to the best of American Ski's and each Borrower's knowledge, there have been no
releases of Hazardous Materials on, upon, from or into any real property in the
vicinity of the real properties owned, operated or controlled by American Ski or
any Restricted Subsidiary which, through soil or groundwater contamination, may
have come to be located on the properties of American Ski or any Restricted
Subsidiary; (v) to the best of American Ski's and each Borrower's knowledge,
there have been no releases of Hazardous Materials on, upon, from or into any
real property formerly but no longer owned, operated or controlled by American
Ski or any Restricted Subsidiary.
(d) None of the properties of American Ski or any Restricted
Subsidiary is or shall be subject to any applicable environmental cleanup
responsibility law or environmental restrictive transfer law or regulation by
virtue of the transactions set forth herein and contemplated hereby.
Section 5.18 FOREIGN TRADE REGULATIONS. Neither American Ski nor any
Restricted Subsidiary is (a) a person included within the definition of
"designated foreign country" or "national" of a "designated foreign country" in
Executive Order No. 8389, as amended, in Executive Order No. 9193, as amended,
in the Foreign Assets Control Regulations (31 C.F.R., Chapter V, Part 500, as
amended), in the Cuban Assets Control Regulations of the United States Treasury
Department (31 C.F.R., Chapter V, Part 515, as amended) or in the Regulations of
the Office of Alien Property, Department of Justice (8 C.F.R., Chapter II, Part
507, as amended) or within the meanings of any of the said Orders or
Regulations, or of any regulations, interpretations, or rulings issued
thereunder, or in violation of said Orders or Regulations or of any regulations,
interpretations or rulings issued thereunder; or (b) an entity listed in Section
520.101 of the Foreign Funds Control Regulations (31 C.F.R., Chapter V, Part
520, as amended).
Section 5.19 GOVERNMENTAL REGULATIONS. Neither American Ski nor any
Restricted Subsidiary or any Affiliate of American Ski is subject to regulation
under the Public Utility Holding Company Act of 1935, the Federal Power Act, the
Investment Company Act of 1940, or is a common carrier under the Interstate
Commerce Act, or is engaged in a business or activity subject to any statute or
regulation which regulates the incurring by any Borrower of Indebtedness for
borrowed money, including statutes or regulations relating to common or contract
carriers or to the sale of electricity, gas, steam, water, telephone or
telegraph or other public utility services, except for Uplands Water, Alpine
Pipeline, Community Water Company and Mountain Water Company.
66
Section 5.20 MARGIN STOCK. Neither American Ski nor any Restricted
Subsidiary owns any "margin stock" within the meaning of Regulation U of the
Board of Governors of the Federal Reserve System, or any regulations,
interpretations or rulings thereunder, nor is American Ski or any Restricted
Subsidiary engaged principally or as one of its important activities in
extending credit which is used for the purpose of purchasing or carrying margin
stock.
Section 5.21 SOLVENCY. American Ski and each Restricted Subsidiary,
before and after giving effect to the transactions contemplated by this
Agreement and the other Lender Agreements, including consummation of American
Ski's initial public offering and the Kamori Acquisition, is Solvent.
Section 5.22 COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC.
(a) Neither American Ski nor any Restricted Subsidiary is in
violation of any provision of its charter documents, bylaws, or any agreement or
instrument to which it may be subject or by which it or any of its properties
may be bound or any decree, order, judgment, statute, license, rule or
regulation, in any of the foregoing cases in a manner that could result in a
Material Adverse Effect.
(b) American Ski and its Restricted Subsidiaries have complied in all
respects with the requirements of the Xxxx-Xxxxx-Xxxxxx Anti-Trust Improvement
Act of 1976, as amended (the "HSR Act"), and have made all filings with all
Governmental Authorities required to be made thereunder in connection with the
Kamori Acquisition. All waiting periods required under the H-S-R Act have
expired in connection with the Kamori Acquisition. Neither American Ski nor any
of its Restricted Subsidiaries has any obligation or duty to take any further
action (or to refrain from taking any action) in order to be in compliance with
the H-S-R Act in connection with the Kamori Acquisition.
Section 5.23 ABSENCE OF FINANCING STATEMENTS, ETC. To the best knowledge
of American Ski and except with respect to Permitted Liens, there is no
financing statement, security agreement, chattel mortgage, real estate mortgage
or other document filed or recorded with any filing records, registry or other
public office, that purports to cover, effect or give notice of any present or
possible future lien on, or security interest in, any assets or property of
American Ski or any Restricted Subsidiary or any rights relating thereto.
Section 5.24 PERFECTION OF SECURITY INTERESTS. All filings, assignments,
pledges and deposits of documents or instruments have been made and all other
actions have been taken that are required under applicable law to establish and
perfect the Agent's security interest in the Collateral. The Collateral and the
Agent's rights with respect to the Collateral are not subject to any set-off,
claims, withholdings or other defenses. American Ski or its Restricted
Subsidiaries as specified in the Security Agreements, own the Collateral free
from any lien, security interest, encumbrance and any other claim or demand
except for Permitted Liens.
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Section 5.25 BANK ACCOUNTS. SCHEDULE 2.17 sets forth the account
numbers, location and description of all bank accounts of American Ski and each
Restricted Subsidiary.
Section 5.26 FISCAL YEAR. American Ski and each Restricted Subsidiary
other than the Heavenly Subsidiaries and the Steamboat Subsidiaries has a fiscal
year which is the twelve-months ending on the last Sunday of July of each year;
the Heavenly Subsidiaries and the Steamboat Subsidiaries had a fiscal year which
was the twelve-months ending on May 31 of each year and effective with the
current fiscal year will have a fiscal year which is the twelve-months ending on
the last Sunday of July of each year.
Section 5.27 TAX STATUS. Each Borrower is a "C" corporation for all
purposes under the Code.
Section 5.28 CONSUMMATION OF PUBLIC OFFERING. American Ski has
successfully completed its initial public offering, the gross proceeds of which
are equal to or greater than the Minimum IPO Gross Proceeds.
Section 5.29 CONSUMMATION OF KAMORI ACQUISITION. The Kamori Acquisition
has been consummated in accordance with the terms of the Kamori Acquisition
Documents. American Ski hereby confirms and restates to the Agent and the
Lenders as if set forth herein in full the representations and warranties set
forth in Sections 4 and 5 of the Kamori Stock Purchase Agreement.
Section 5.30 CERBERUS PURCHASE AGREEMENT; CERBERUS AMENDMENT AND WAIVER
LETTER AGREEMENT; CERTIFICATE OF DESIGNATION. A true and complete copy of the
Cerberus Purchase Agreement, the Cerberus Amendment and Waiver Letter Agreement
and the Certificate of Designation has been delivered to the Agent. The
Cerberus Purchase Agreement, Series A Exchangeable Preferred Shares, the Senior
Exchangeable Notes, the Cerberus Amendment and Waiver Letter Agreement and the
101/2% Repriced Convertible Exchangeable Preferred Stock constitute the entire
agreement between Cerberus, Xxxxxxxxx LLC and their affiliates, on the one hand,
and American Ski and its Restricted Subsidiaries and other Affiliates, on the
other hand, and there are no other agreements, instruments or understandings by
or between them. The Cerberus Purchase Agreement has not been modified, amended
or supplemented and no consents or waivers have been granted thereunder except
for the Cerberus Amendment and Waiver Letter Agreement. The Cerberus Amendment
and Waiver Letter Agreement has been duly executed and delivered by Xxxxxxxxx
LLC and is enforceable against Xxxxxxxxx LLC in accordance with its terms. The
Certificate of Designation has been duly authorized and filed by American Ski
and is enforceable against American Ski in accordance with its terms.
Section 5.31 WOLF ACQUISITION AGREEMENT. A true and complete copy of the
Wolf Acquisition Agreement has been delivered to the Agent. The Wolf
Acquisition Agreement has not been modified, amended or supplemented and no
consents or waivers have been granted thereunder.
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ARTICLE 6. REPORTS AND INFORMATION
Section 6.1 INTERIM FINANCIAL STATEMENTS AND REPORTS.
(a) As soon as available, and in any event within forty-five (45)
days after the end of each quarter of each fiscal year of American Ski, American
Ski shall furnish to the Agent and each Lender: (i) consolidated and
consolidating balance sheets of (A) American Ski and its Restricted
Subsidiaries, (B) ASC East and its Restricted Subsidiaries and (C) ASC West,
Inc. and its Restricted Subsidiaries, as of the end of such quarter and
consolidated and consolidating statements of operations, shareholders' equity
and cash flow of American Ski and its Restricted Subsidiaries for such quarter
and for the period commencing at the end of the previous fiscal year and ending
with the end of such quarter, setting forth in each case in comparative form the
corresponding figures for the corresponding period of the preceding fiscal year,
all in reasonable detail; (ii) a Compliance Certificate; and (iii)
unconsolidated financial statements of the Unrestricted Subsidiaries similar to
the financial statements described in clause (i) above.
(b) As soon as available, but in any event not more than thirty (30)
days after the end of each month, American Ski shall furnish to the Agent and
each Lender (i) consolidated and consolidating profit and loss statements of
American Ski and each of its Restricted Subsidiaries for the period then ended
all in reasonable detail and (ii) unconsolidated profit and loss statements of
the Unrestricted Subsidiaries similar to the profit and loss statements
described in clause (i) above.
(c) Not more than seven (7) days after the end of each month, the
Borrowers shall furnish to the Agent and each Lender its then current
year-to-date internally prepared, unaudited profit plan report in the form
currently prepared by the Borrowers.
Section 6.2 ANNUAL FINANCIAL STATEMENTS. As soon as available, but in
any event within ninety (90) days after the end of each fiscal year of the
Borrowers, American Ski shall furnish to the Agent and each Lender: (a) audited
consolidated and consolidating balance sheets of (i) American Ski and its
Restricted Subsidiaries, (ii) ASC East and its Restricted Subsidiaries, (iii)
ASC West, Inc. and its Restricted Subsidiaries and (iv) American Ski and its
Subsidiaries, as of the end of such fiscal year, and consolidated and
consolidating statements of operations, shareholders' equity and cash flow of
(A) American Ski and its Restricted Subsidiaries and (B) American Ski and its
Subsidiaries, for such fiscal year, in each case (other than the consolidating
statements) reported on by Price Waterhouse LLP, or other independent certified
public accountants of recognized national standing acceptable to the Agent,
which report shall express, without reliance upon others, a positive opinion
regarding the fairness of the presentation of such financial statements in
accordance with generally accepted accounting principles consistently applied,
said report to be without qualification, except in cases of unresolved
litigation and accounting changes with which such accountants concur, together
69
with the statement of such accountants that they have caused the provisions of
this Agreement and the other Lender Agreements to be reviewed and that nothing
has come to their attention to lead them to believe that any Default exists
hereunder or specifying any Default and the nature thereof; (b) a Compliance
Certificate; and (c) unconsolidated audited financial statements of the
Unrestricted Subsidiaries similar to the financial statements described in
clause (a) above. At the time of delivery of the annual audited financial
statements, American Ski shall furnish to the Agent and each Lender copies of
the written recommendations concerning the management, finances, financial
controls, or operations of any Borrower or any Restricted Subsidiary received
from American Ski's independent public accountants.
Section 6.3 ANNUAL BUDGET. On or before June 1 of each year, American
Ski shall furnish to the Agent and each Lender (a) consolidated and
consolidating projections of American Ski and its Restricted Subsidiaries and
(b) consolidated and consolidating projections of the proposed Capital
Expenditures (which proposed expenditures shall be consistent with the
limitations set forth in Section 9.7 hereof) of American Ski and its Restricted
Subsidiaries, in each case, for the immediately following fiscal year, prepared
on a month-by-month and quarter-by-quarter basis in accordance with generally
accepted accounting principles consistently applied to the extent applicable to
such projections and in such detail as the Agent may reasonably request.
Section 6.4 REPORTS OF SKIER VISITS. At the time of each delivery by
American Ski of (a) interim financial statements and reports under Section 6.1
hereof and (b) annual financial statements under Section 6.2 hereof shall
furnish to the Agent and the Lenders information setting forth (i) the number of
paid skier visits and unpaid skier visits to each ski resort or skiing facility
owned or operated by American Ski or any Restricted Subsidiary during each month
of the applicable fiscal period and for the fiscal year-to-date and (ii) in
comparative form the corresponding figures for the corresponding fiscal period
of the previous fiscal and for the corresponding year-to-date of such previous
fiscal year.
Section 6.5 NOTICE OF DEFAULTS. As soon as possible, and in any event
within five (5) days after the occurrence of each Default, American Ski shall
furnish to the Agent and each Lender the statement of their chief executive
officers or chief financial officers setting forth details of such Default and
the action which American Ski has taken or propose to take with respect thereto.
Section 6.6 NOTICE OF LITIGATION. Promptly after the commencement
thereof, American Ski shall furnish to the Agent and each Lender written notice
of all actions, suits and proceedings before any court or governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, affecting American Ski or any Restricted Subsidiary, which, if
adversely determined, would have a Material Adverse Effect.
Section 6.7 COMMUNICATIONS WITH OTHERS. If and when any debt or equity
security of American Ski or any Restricted Subsidiary is or is proposed to be
traded publicly, promptly
70
after filing the same, American Ski shall furnish to the Agent and each Lender
copies of all regular, periodic and special reports and all registration
statements which American Ski or such Borrower files with the Commission or any
Governmental Authority which may be substituted therefor, or with any national
or regional securities exchange.
Section 6.8 REPORTABLE EVENTS. At any time that American Ski or any
Pension Affiliate has a Pension Plan, American Ski shall furnish to the Agent
and each Lender, as soon as possible, but in any event within thirty (30) days
after American Ski knows or has reason to know that any Reportable Event with
respect to any Pension Plan has occurred, the statement of the chief executive
officers or chief financial officers of American Ski setting forth the details
of such Reportable Event and the action which American Ski or any Pension
Affiliate has taken or proposes to take with respect thereto, together with a
copy of the notice of such Reportable Event to the Pension Benefit Guaranty
Corporation.
Section 6.9 REPORTS TO OTHER CREDITORS. Promptly after filing the same,
American Ski shall furnish to the Agent and each Lender copies of any compliance
certificate and other information furnished to any other holder of the
securities (including the Senior Subordinated Notes, the Series A Exchangeable
Preferred Stock and the Senior Exchangeable Notes and any other debt
obligations) of American Ski or any Restricted Subsidiary pursuant to the terms
of any indenture, loan or credit or similar agreement and not otherwise required
to be furnished to the Agent or the Lenders pursuant to any other provision of
this Agreement.
Section 6.10 COMMUNICATIONS WITH INDEPENDENT PUBLIC ACCOUNTANTS. At any
reasonable time and from time to time upon reasonable request, American Ski
shall provide the Agent and the Lenders and any agents or representatives of the
Agent and the Lenders access to the independent public accountants of American
Ski and its Restricted Subsidiaries to discuss their financial condition,
including, without limitation any recommendations of such independent public
accountants concerning the management, finances, financial controls or
operations of American Ski and its Restricted Subsidiaries.
Section 6.11 ENVIRONMENTAL REPORTS. In the event that and to the extent
that any of the following provides notice of circumstances, occurrences or
events that have or could reasonably be expected to have a material impact on
the operations of any Borrower, American Ski or the Borrowers shall furnish to
the Agent and each Lender: (a) not later than seven (7) days after notice
thereof, notice of any enforcement actions, or, to the knowledge of American Ski
or any Borrower, threatened enforcement actions affecting American Ski or any
Restricted Subsidiary by any Governmental Authority related to Environmental
Laws; (b) copies, promptly after they are received, of all orders, notices of
responsibility, notices of violation, notices of enforcement actions, and
assessments, and other written communications pertaining to any such orders,
notices, claims and assessments received by American Ski or any Restricted
Subsidiary from any Governmental Authority; (c) not later than seven (7) days
after notice thereof, notice of any civil claims or threatened civil claims
affecting American Ski or any Restricted Subsidiary by any third party alleging
any violation of Environmental Laws or
71
harm to human health, safety or the environment; (d) copies of all cleanup
plans, site assessment reports, response plans, remedial proposals, or other
submissions of American Ski or any Restricted Subsidiary, other third party
(e.g., committee of potentially responsible parties at a Superfund site), or any
combination of same, submitted to a Governmental Authority in response to any
communication referenced in subsections (a) and (b) herein simultaneously with
their submission to such Governmental Authority; and (e) from time to time, on
reasonable request of the Agent, evidence satisfactory to the Agent of American
Ski's and its Restricted Subsidiaries' insurance coverage, if any, for any
environmental liabilities.
Section 6.12. NOTICES UNDER CERTAIN AGREEMENTS. American Ski and its
Restricted Subsidiaries will provide the Agent with copies of all notices and
other written communications given or received by them under the Cerberus
Purchase Agreement, the Cerberus Amendment and Waiver Letter Agreement, the
Kamori Stock Purchase Agreement and the Wolf Acquisition Agreement to the extent
such notices relate to (a) defaults of American Ski or any Restricted Subsidiary
or any other party under such agreements, (b) events which with the giving of
notice or passage of time or both would constitute a default of American Ski or
any Restricted Subsidiary or any other party under such agreements, (c)
indemnification claims of American Ski or any Restricted Subsidiary under such
agreements or (d) other material transactions under such agreements. Without
limiting the generality of the foregoing, American Ski shall provide the Agent
with copies of the Preliminary September 30 Balance Sheets, the Cash Flow Notice
and the Capital Expenditure Notice (as such terms are defined in the Kamori
Stock Purchase Agreement) and written notice of any indemnification claims
pursuant to Section 10(b) of the Kamori Stock Purchase Agreement.
Section 6.13 MISCELLANEOUS. American Ski shall provide the Agent and the
Lenders with such other information as the Agent or the Lenders may from time to
time reasonably request respecting the business, properties, prospects,
condition or operations, financial or otherwise, of American Ski and its
Restricted Subsidiaries.
ARTICLE 7. FINANCIAL COVENANTS
On and after the date hereof, until all of the Lender Obligations shall
have been paid in full and the Lenders shall have no commitment to make any
loans or advances hereunder, American Ski and its Restricted Subsidiaries shall
observe the following covenants:
Section 7.1 RATIO OF CONSOLIDATED TOTAL DEBT TO CONSOLIDATED EBITDA.
(a) American Ski and its Restricted Subsidiaries shall maintain as of
the end of each fiscal quarter a ratio of (i) Consolidated Total Debt as of such
date to (ii) Consolidated EBITDA for the four-quarter period ending on such date
of not more than the following levels as of the fiscal quarters indicated:
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FISCAL QUARTER RATIO FISCAL QUARTER RATIO
-------------- ----- -------------- -----
1998 Quarter 1 6.00-to-1.00 2000 Quarter 3 4.00-to-1.00
1998 Quarter 2 6.00-to-1.00 2000 Quarter 4 4.50-to-1.00
1998 Quarter 3 5.50-to-1.00 2001 Quarter 1 4.50-to-1.00
1998 Quarter 4 5.50-to-1.00 2001 Quarter 2 4.50-to-1.00
1999 Quarter 1 5.50-to-1.00 2001 Quarter 3 4.00-to-1.00
1999 Quarter 2 5.50-to-1.00 2001 Quarter 4 4.00-to-1.00
1999 Quarter 3 4.50-to-1.00 Thereafter 4.00-to-1.00
1999 Quarter 4 5.00-to-1.00
2000 Quarter 1 5.00-to-1.00
2000 Quarter 2 5.00-to-1.00
(b) Until the Subordinated Notes Release Date, ASC East and its
Restricted Subsidiaries shall maintain as of the end of each fiscal quarter a
ratio of (i) ASC East Consolidated Total Debt as of such date to (ii) ASC East
Consolidated EBITDA for the four-quarter period ending on such date of not more
than the following levels as of the fiscal quarters indicated:
FISCAL QUARTER RATIO FISCAL QUARTER RATIO
-------------- ----- -------------- -----
1998 Quarter 1 6.00-to-1.00 2000 Quarter 3 4.00-to-1.00
1998 Quarter 2 6.00-to-1.00 2000 Quarter 4 4.50-to-1.00
1998 Quarter 3 5.50-to-1.00 2001 Quarter 1 4.50-to-1.00
1998 Quarter 4 5.50-to-1.00 2001 Quarter 2 4.50-to-1.00
1999 Quarter 1 5.50-to-1.00 2001 Quarter 3 4.00-to-1.00
1999 Quarter 2 5.50-to-1.00 2001 Quarter 4 4.00-to-1.00
1999 Quarter 3 4.50-to-1.00 Thereafter 4.00-to-1.00
1999 Quarter 4 5.00-to-1.00
2000 Quarter 1 5.00-to-1.00
2000 Quarter 2 5.00-to-1.00
Section 7.2 RATIO OF CONSOLIDATED ADJUSTED CASH FLOW TO CONSOLIDATED DEBT
SERVICE. American Ski and its Restricted Subsidiaries shall maintain as of the
end of each fiscal quarter for the four-quarter period ending on such date a
ratio of (a) Consolidated Adjusted Cash Flow to (b) Consolidated Debt Service of
not less than the following levels as of the end of any fiscal quarter during
the year indicated:
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Fiscal Year
Ending July Ratio
----------- -----
1998 1.05-to-1.00
1999 1.10-to-1.00
2000 1.20-to-1.00
2001 and Thereafter 1.25-to-1.00
Section 7.3 RATIO OF CONSOLIDATED EBITDA TO CONSOLIDATED INTEREST
EXPENSE. American Ski and its Restricted Subsidiaries shall maintain as of the
end of each fiscal quarter for the four-quarter period ending on such date a
ratio of (i) Consolidated EBITDA to (ii) Consolidated Interest Expense of not
less than the following levels as of the end of any fiscal quarter during the
year indicated:
Fiscal Year
Ending July Ratio
----------- -----
1998 1.75-to-1.00
1999 2.25-to-1.00
2000 and Thereafter 2.50-to-1.00
Section 7.4 MINIMUM CONSOLIDATED NET WORTH.
(a) American Ski and its Restricted Subsidiaries shall maintain
minimum Consolidated Net Worth at all times of not less than the sum of
(a) $240,000,000 PLUS (b) 75% of cumulative Consolidated Net Income of American
Ski and its Restricted Subsidiaries for the period after July 31, 1997 PLUS
(c) all amounts received by American Ski or the Borrowers after the Closing Date
from the issuance of equity interests.
(b) ASC East and its Restricted Subsidiaries shall maintain at all
times minimum consolidated net worth (excluding from assets investments in
Unrestricted Subsidiaries) determined in accordance with generally accepted
accounting principles, of not less than $50,000,000.
ARTICLE 8. AFFIRMATIVE COVENANTS
On and after the date hereof, until all of the Lender Obligations shall
have been paid in full and the Lenders shall have no commitment to make any
loans or advances hereunder, American Ski and its Restricted Subsidiaries will,
comply with the following covenants and provisions:
Section 8.1 EXISTENCE AND BUSINESS. American Ski and each Restricted
Subsidiary will (a) preserve and maintain its corporate or partnership existence
and qualify and remain
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qualified as a foreign corporation or partnership in each jurisdiction in which
such qualification is required except to the extent that any failure to remain
qualified as a foreign corporation or partnership would not have a Material
Adverse Effect, (b) preserve and maintain in full force and effect all material
rights, licenses, patents and franchises, (c) comply in all material respects
with all valid and applicable statutes, rules and regulations necessary for the
conduct of business and (d) engage only in the businesses which they are
conducting on the date of this Agreement (operation of all-season resort
properties, including related restaurant and retail operations, but excluding
the real estate development prohibited by Section 9.13 hereof); PROVIDED,
HOWEVER that a Restricted Subsidiary may merge into another Restricted
Subsidiary.
Section 8.2 TAXES AND OTHER OBLIGATIONS. American Ski and each
Restricted Subsidiary (a) will duly pay and discharge, or cause to be paid and
discharged, before the same shall become in arrears, all material taxes,
assessments and other governmental charges, imposed upon each of them and its
properties, sales and activities, or upon the income or profits therefrom, as
well as the claims for labor, materials, or supplies which if unpaid might by
law result in a lien or charge upon any of its properties; PROVIDED, HOWEVER,
that American Ski and any Restricted Subsidiary may contest any such charges or
claims in good faith so long as (i) an adequate reserve therefor has been
established and is maintained if and as required by generally accepted
accounting principles and (ii) no action to foreclose any such lien has been
commenced and (b) will promptly pay or cause to be paid when due, or in
conformance with customary trade terms (but not later than 60 days from the due
date in the case of trade debt), all material lease obligations, trade debt and
all other Indebtedness incident to its operations. American Ski and each
Restricted Subsidiary shall cause all applicable tax returns and all amounts due
thereunder to be filed and paid, as the case may be, in order to maintain its
good standing with the Internal Revenue Service and state, local and foreign tax
authorities.
Section 8.3 MAINTENANCE OF PROPERTIES AND LEASES. American Ski and each
Restricted Subsidiary shall maintain, keep and preserve all of its material
properties (tangible and intangible) in good repair and working order, ordinary
wear and tear excepted. American Ski and each Restricted Subsidiary shall
replace and improve its material properties as necessary for the conduct of its
business. American Ski and each Restricted Subsidiary shall comply in all
material respects with all leases naming it as lessee.
Section 8.4 INSURANCE. American Ski and each Restricted Subsidiary (a)
will keep its principal assets which are of an insurable character insured by
financially sound and reputable insurers against loss or damage by fire,
explosion or hazards, by extended coverage in an amount sufficient to avoid
co-insurance liability and (b) will maintain with financially sound and
reputable insurers insurance against other hazards and risks and liability to
persons and property to the extent and in a manner satisfactory to the Lenders,
and in any event as customary for companies in similar businesses similarly
situated; PROVIDED, HOWEVER, that on prior notice to the Agent and the Lenders
it may effect workmen's compensation and general liability insurance through an
insurance fund operated by such state or jurisdiction and may also be a
self-insurer with respect to workmen's compensation and with respect to group
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medical benefits under any medical benefit plan. The provisions of the Security
Agreements relating to insurance shall not be limited by the provisions of this
Section 8.4. On request of the Agent from time to time, American Ski will
render to the Agent and the Lenders a statement in reasonable detail as to all
insurance coverage required by this Section 8.4. A description of the material
elements of insurance coverage of American Ski and its Restricted Subsidiaries
as of the date hereof is set forth on SCHEDULE 8.4.
Section 8.5 RECORDS, ACCOUNTS AND PLACES OF BUSINESS. American Ski and
each Restricted Subsidiary shall maintain comprehensive and accurate records and
accounts in accordance with generally accepted accounting principles
consistently applied. American Ski and each Restricted Subsidiary shall
maintain adequate and proper reserves. American Ski and each Restricted
Subsidiary shall promptly notify the Agent of (a) any changes in the places of
business of American Ski and any Restricted Subsidiary and (b) any additional
places of business which may arise hereafter.
Section 8.6 INSPECTION. At any reasonable time and from time to time,
American Ski and the Borrowers shall permit the Agent and the Lenders and any of
the Agent's and the Lenders' agents or representatives to examine and make
copies of and abstracts from the records and books of account of, and visit the
properties of, American Ski and its Subsidiaries and to discuss the affairs,
finances and accounts of American Ski and any Subsidiary with any of their
officers or directors and with American Ski's and its Subsidiaries' independent
accountants. In addition, the Agent shall be entitled, and American Ski shall
permit the Agent, to conduct field examinations of American Ski and its
Restricted Subsidiaries, at the Borrowers' sole expense and at any time or times
in the Agent's sole discretion.
Section 8.7 MAINTENANCE OF ACCOUNTS. American Ski and its Restricted
Subsidiaries shall maintain their principal concentration and disbursement
accounts with the Agent.
Section 8.8 MAINTENANCE AND ASSIGNMENT OF LIFE INSURANCE. The
Restricted Subsidiaries shall maintain in full force and effect one or more life
insurance policies issued by insurers acceptable to the Agent (the "Xxxxx Life
Insurance Policies") on the life of Xxxxxx X. Xxxxx in a minimum amount of
$14,000,000 and on other terms and conditions approved by the Agent, and such
policies shall be assigned to the Agent as security for the Lender Obligations.
Section 8.9 OWNERSHIP OF RESTRICTED SUBSIDIARIES. American Ski will
maintain legal and beneficial ownership, directly or indirectly, of 100% of the
equity interests of each of the Restricted Subsidiaries as described on SCHEDULE
8.9 hereto and with such exceptions as described on SCHEDULE 8.9 hereto.
Section 8.10 SURVEY AND SURVEYOR'S CERTIFICATE. Upon request of the
Agent upon a Default not cured within any applicable cure period, or in the
event that the Agent determines in its reasonable judgment that a survey is
required to assure the location of future
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improvements constructed by American Ski or a Restricted Subsidiary on the
Mortgaged Properties, American Ski shall provide the Agent with an instrument
survey of the affected Mortgaged Property, such survey to be satisfactory to the
Agent in form and substance and with respect to each survey, a certificate
executed by the surveyor who prepares such survey dated as of a recent date and
containing such information relating to the affected Mortgaged Property as the
Agent or the title insurance company may require, such certificate to be
satisfactory to the Agent in form and substance and sufficient to obtain the
deletion of the survey exception in the title insurance policy furnished to the
Agent with respect to the affected Mortgage Property.
Section 8.11 APPRAISALS.
(a) The sum of (i) the Term Loans, (ii) the Maximum Revolving Credit
Amount, (iii) the Letter of Credit Exposure and (iv) the outstanding amount of
all other Indebtedness secured by any assets of the Borrowers (including secured
Subordinated Indebtedness) shall not at any time exceed seventy-five percent
(75%) of the Appraised Value of the Collateral (the "Loan to Value Ratio"). If
at any time the Loan to Value Ratio exceeds 75%, then the Borrowers, jointly and
severally, shall promptly (but no later than sixty (60) days thereafter, either
(i) reduce the sum of such outstanding commitments or Indebtedness to a point
where the Loan to Value Ratio is less than 75% or (ii) provide the Agent with
additional Collateral satisfactory to the Agent in its discretion, and at the
expense of American Ski, such that the 75% Loan to Value Ratio is satisfied.
(b) Upon the occurrence of and during any continuance of an Event of
Default, the Agent shall have the right to obtain, at the cost and expense of
the Borrowers and American Ski, updated appraisals of the Collateral, PROVIDED
that the Borrowers and American Ski shall not be obligated to pay for the costs
and expenses associated with more than one such appraisal during any twelve (12)
month period. The costs and expenses incurred by the Agent in obtaining such
appraisals shall be paid by the Borrowers and American Ski, jointly and
severally, forthwith upon billing or request by the Agent for reimbursement
therefor.
Section 8.12 LEASE RENEWAL. The Borrowers will renew all leases set
forth on SCHEDULE 8.12 in accordance with their terms.
Section 8.13 USE OF IPO PROCEEDS. American Ski will use all net proceeds
of the Minimum IPO Gross Proceeds and will use all Restricted Excess IPO
Proceeds (a) to make Investments in its Restricted Subsidiaries for use by them
in their ski and lodging operations including, without limitation, the
consummation of the Kamori Acquisition and (b) to redeem the 133/4% Subordinated
Notes in full on or before December 30, 1997. American Ski may use Unrestricted
Excess IPO Proceeds for any lawful purpose not expressly prohibited hereunder
with respect to use of Unrestricted Excess IPO Proceeds.
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Section 8.14 ENVIRONMENTAL AND LAND USE COMPLIANCE. American Ski and the
Borrowers, jointly and severally, will undertake and diligently pursue to
completion the environmental and land use cleanup, compliance and permit
requirements described on SCHEDULE 8.14 attached hereto and incorporated herein
by reference and will provide the Agent with documentation confirming the
completion of the specified tasks by the dates specified for each task
referenced on said SCHEDULE 8.14. In addition, with each Compliance
Certificate, American Ski shall provide the Agent with a report as to the status
of their compliance and their efforts to comply with the obligations specified
on SCHEDULE 8.14, and any information relevant to their ability or inability to
obtain compliance with a particular obligation by the requisite scheduled date,
any other environmental or land use cleanup, compliance or permit related matter
which arises subsequent to the date hereof and which remains unresolved to the
satisfaction of the Agent as of the date of the applicable Compliance
Certificate.
Section 8.15 INTEREST RATE PROTECTION. No later than 90 days after the
Closing Date, American Ski will enter into Interest Rate Protection Agreements
on notional amounts for not less than $52,500,000 at a rate and on terms
satisfactory to the Agent.
Section 8.16 INDEPENDENCE OF UNRESTRICTED SUBSIDIARIES. American Ski and
its Restricted Subsidiaries will conduct their business and operations
separately from that of the Unrestricted Subsidiaries and will cause the
Unrestricted Subsidiaries to conduct their business and operations separately
from that of American Ski and its Restricted Subsidiaries, by (a) not
commingling funds or other assets, (b) maintaining separate corporate and
financial records and observing all corporate formalities, (c) paying their
respective liabilities from their respective assets, except pursuant to any
guarantees extended by the Restricted Subsidiaries of obligations of
Unrestricted Subsidiaries and permitted hereunder, (d) maintaining
capitalization adequate to meet their respective business needs and (e)
conducting contractual dealings with third parties in their respective names and
as separate and independent entities.
Section 8.17 REDEMPTION OR EXCHANGE OF SENIOR SUBORDINATED NOTES. In the
event that the Senior Subordinated Notes are redeemed or exchanged on terms
reasonably acceptable to the Majority Lenders, the Security Agreements will be
amended to provide that they secure all Lender Obligations and all American
Ski - West Lender Obligations and the Borrowers will execute security agreements
in substantially the form of EXHIBIT E-2 hereto securing all American Ski - West
Lender Obligations and all other necessary and related documents.
Section 8.18 FOREST SERVICE PERMITS. The Borrowers hold certain rights
under and by virtue of the Term Special Use Permits issued to the applicable
Borrower by the Forest Service of the United States Department of Agriculture
listed on SCHEDULE 8.18 hereto (individually a "Forest Service Permit" and
collectively the "Forest Service Permits"). The Borrowers will make no changes,
alterations or amendments to any Forest Service Permit without the prior written
consent of the Agent and except as would not have or reasonably be expected to
have a material impact on the operations of any Borrower; PROVIDED, HOWEVER,
that changes or alterations in any master plan provided under or incorporated by
reference in any Forest
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Service Permit will not constitute changes, alterations or amendments under this
Section 8.18. Each Borrower will well and truly perform, or cause to be
performed, all of its material obligations and agreements under the Forest
Service Permits and under any renewals or extensions thereof and will not do or
suffer anything which will impair any Forest Service Permit or which would be a
Default hereunder.
Section 8.19 FURTHER ASSURANCES. American Ski and each Restricted
Subsidiary will cooperate with the Agent and the Lenders and execute such
further instruments and documents as the Agent or the Lenders shall reasonably
request to carry out to their satisfaction the transactions contemplated by this
Agreement and the other Lender Agreements.
ARTICLE 9. NEGATIVE COVENANTS
On and after the date hereof, until all of the Lender Obligations shall
have been paid in full and the Lenders shall have no commitment to make any
loans or advances hereunder, American Ski and the Borrowers, jointly and
severally, covenant that neither American Ski nor any Restricted Subsidiary
will:
Section 9.1 RESTRICTIONS ON INDEBTEDNESS. Create, incur, suffer or
permit to exist, or assume or guarantee, either directly or indirectly, or
otherwise become or remain liable with respect to, any Indebtedness, except the
following:
(a) Indebtedness to the Lenders and the Agent under this Agreement,
the Term Loan Notes, the Revolving Credit Notes, the other Lender Agreements and
the American Ski - West Credit Agreement, the notes issued thereunder and the
American Ski - West Security Documents.
(b) Indebtedness (i) described on SCHEDULE 5.16 hereto and (ii) any
renewals, extensions and refundings thereof which do not increase the amount
thereof, extend the weighted average maturity of any thereof by more than 25%,
provide any collateral in excess of collateral currently securing such
Indebtedness or grant, modify or amend any rights, remedies or interests of the
holders thereof in a manner materially adverse to the interests of the Agent or
the Lenders.
(c) The Senior Subordinated Notes and the subordinated guaranties of
the Borrowers with respect thereto.
(d) The Series A Exchangeable Preferred Stock, the Senior
Exchangeable Notes and the 101/2% Repriced Convertible Exchangeable Preferred
Stock.
(e) Subordinated Indebtedness incurred to the sellers of assets or
stock in connection with Permitted Acquisitions, PROVIDED that such Indebtedness
is unsecured, has a
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cash interest rate of not greater than 12% per annum, has no scheduled
amortization until after payment in full of all Lender Obligations and is
subordinated to the prior payment in full in cash of all Lender Obligations on
terms and conditions approved in writing by the Agent.
(f) (i) Real Estate Guaranties; provided that the sum of Real Estate
Guaranties and Direct Unrestricted Subsidiary Investments shall not exceed
$25,000,000 at any time;
(ii) (A) Capitalized Lease Obligations and (B) Indebtedness of
the Borrowers to purchase tangible assets to be used in the Borrower's
operations in an amount not to exceed 100% of the purchase price of such
assets, which Indebtedness may be secured by the assets so purchased but by
no other assets; PROVIDED, HOWEVER, that the aggregate amount under clauses
(A) and (B) of this Section 9.1(f)(ii) shall not exceed $50,000,000;
(iii) Indebtedness of Persons that become Restricted
Subsidiaries in connection with Permitted Acquisitions and not incurred in
anticipation of such Permitted Acquisitions in an aggregate amount not to
exceed $50,000,000; and
(iv) Other unsecured Indebtedness in an amount not to exceed
$25,000,000;
PROVIDED, HOWEVER, that the total amount of all Indebtedness outstanding at any
time under this clause (f) shall not exceed $100,000,000.
(g) Indebtedness consisting of indemnification and price adjustment
obligations incurred in connection with Permitted Acquisitions.
(h) Indebtedness on account of consolidated current liabilities
(other than for money borrowed) incurred in the normal and ordinary course of
business.
(i) Indebtedness in respect of (i) taxes, assessments, governmental
charges or levies and claims for labor, materials and supplies to the extent
that payment thereof shall not at the time be required to be made in accordance
with the provisions of Section 8.2 hereof, (ii) judgments or awards which have
been in force for less than the applicable appeal period so long as execution is
not levied thereunder or in respect of which American Ski or the Restricted
Subsidiary subject to such judgment or award shall at the time in good faith be
prosecuting an appeal or proceedings for review in a manner satisfactory to the
Agent and in respect of which a stay of execution shall have been obtained
pending such appeal or review and for which adequate reserves have been
established in accordance with generally accepted accounting principles and
(iii) endorsements made in connection with the deposit of items for credit or
collection in the ordinary course of business.
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(j) Indebtedness consisting of intercompany loans among (i) ASC East
and its Restricted Subsidiaries and (ii) ASC West, Inc. and any Restricted
Subsidiaries of American Ski, provided that the aggregate outstanding principal
amount of all such loans shall not exceed $5,000,000 and no such loan shall be
evidenced by a promissory note or other instrument unless such note has been
pledged and delivered to the Agent as security for the Lender Obligations on
terms and conditions acceptable to the Agent.
(k) Indebtedness of American Ski and its Restricted Subsidiaries
under Interest Rate Protection Agreements entered into to protect American Ski
and its Restricted Subsidiaries against fluctuations in interest rates so long
as management of American Ski and its Restricted Subsidiaries has determined
that the entering into of such Interest Rate Protection Agreements are bona fide
hedging activities and the notional amount thereof does not exceed the principal
amount of the Consolidated Term Loans.
(l) Payment and performance bonds entered into in the ordinary course
of business in support of the activities of ASC East, ASC Utah, ASC West, Inc.
and their Restricted Subsidiaries.
Section 9.2 RESTRICTION ON LIENS. Create or incur or suffer to be
created or incurred or permit to exist any encumbrance, mortgage, pledge, lien,
charge or other security interest of any kind upon any of its property or assets
of any character, whether now owned or hereafter acquired, or transfer any of
such property or assets for the purposes of subjecting the same to the payment
of Indebtedness or performance of any other obligation in priority to payment of
its general creditors, or acquire or agree or have an option to acquire any
property or assets upon conditional sale or other title retention agreement,
device or arrangement (including Capitalized Leases) or suffer to exist for a
period of more than 30 days after the same shall have been incurred any
Indebtedness against it which if unpaid might by law or upon bankruptcy or
insolvency, or otherwise, be given any priority whatsoever over the claims of
its general creditors, or sell, assign, pledge or otherwise transfer for
security any of its accounts, contract rights, general intangibles, or chattel
paper (as those terms are defined in the UCC) with or without recourse (each of
the foregoing, a "Lien"); PROVIDED, HOWEVER, that any Borrower or any Restricted
Subsidiary may create or incur or suffer to be created or incurred or permit to
exist the following (the "Permitted Liens"):
(a) Liens described on SCHEDULE 5.16 securing certain existing
Indebtedness and any renewals, extensions and refundings thereof which do not
increase the amount thereof, extend such lien to any other property or assets of
American Ski or the Borrowers or grant, modify or amend any rights, remedies or
interests of the holders thereof in a manner materially adverse to the interests
of the Agent or the Lenders.
(b) Purchase money security interests (which term shall include
mortgages, conditional sale contracts, Capitalized Leases and all other title
retention or deferred purchase devices) to secure the purchase price of property
acquired hereafter by any Borrower or any
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Restricted Subsidiary, or to secure Indebtedness incurred solely for the purpose
of financing such acquisitions; PROVIDED, HOWEVER, that no such purchase money
security interests shall extend to or cover any property other than the property
the purchase price of which is secured by it, and that the principal amount of
Indebtedness (whether or not assumed) with respect to each item of property
subject to such a security interest shall not exceed the fair value of such item
on the date of its acquisition; and liens securing Indebtedness permitted under
Section 9.1(f)(iii) on assets acquired in connection with Permitted Acquisitions
and subject to such liens from the incurrence of such Indebtedness.
(c) Deposits or pledges made in connection with, or to secure payment
of, workmen's compensation, unemployment insurance, old age pensions or other
social security; liens in respect of judgments or awards to the extent such
judgments or awards are permitted as Indebtedness by the provisions of Section
9.1(i); and liens for taxes, assessments or governmental charges or levies and
liens to secure claims for labor, material or supplies and liens securing
obligations to carriers, warehousemen and mechanics to the extent that payment
thereof shall not at the time be required to be made in accordance with Section
8.2.
(d) Encumbrances in the nature of zoning restrictions, easements, and
rights or restrictions of record on the use of real property which do not
materially detract from the value of such property or impair its use in the
business of the owner or lessee.
(e) Liens (other than judgments and awards) created by or resulting
from any litigation or legal proceeding which has not yet resulted in an Event
of Default, PROVIDED that the execution or other enforcement thereof is
effectively stayed and the claims secured thereby are being actively contested
in good faith by appropriate proceedings satisfactory to the Agent.
(f) Liens arising by operation of law to secure landlords, lessors or
renters under leases or rental agreements made in the ordinary course of
business and confined to the premises or property rented.
(g) Liens in favor of the Agent for the benefit of the Lenders
securing the Lender Obligations and the obligations of the American Ski West
Loan Parties to the Lenders and the Agent, as and when such Liens are
established.
(h) Other Liens not otherwise permitted hereunder securing
Indebtedness in an amount not to exceed $5,000,000.
Nothing contained in this Section 9.2 shall permit American Ski, the Borrowers
or any Restricted Subsidiary to incur any Indebtedness or take any other action
or permit to exist any other condition which would be in contravention of any
other provision of this Agreement.
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Section 9.3 INVESTMENTS. Have outstanding or hold or acquire or make or
commit itself to acquire or make any Investment except the following:
(a) Existing Investments in Subsidiaries described on SCHEDULE 5.4
and other existing Investments described on SCHEDULE 9.3.
(b) Investments having a maturity of less than one year from the date
thereof by the Borrower or any Restricted Subsidiary in: (i) obligations of the
Agent or any of the Lenders; (ii) obligations of the United States of America or
any agency or instrumentality thereof; (iii) repurchase agreements involving
securities described in clauses (i) and (ii) with the Agent or any of the
Lenders; and (iv) commercial paper which is rated not less than prime-one or A-1
or their equivalents by Xxxxx'x Investor Service, Inc. or Standard & Poor's
Corporation, respectively, or their successors.
(c) Investments of Unrestricted Excess IPO Proceeds in accordance
with the investment policy attached hereto as SCHEDULE 9.3 on or before May 12,
1998 and any reinvestments thereof.
(d) Investments in Restricted Subsidiaries or other assets as a
result of Permitted Acquisitions.
(e) Investments received as consideration from the sale of assets
otherwise permitted hereunder, which Investments are pledged to the Agent on
terms and conditions acceptable to the Agent.
(f) Investments consisting of advances to employees in the ordinary
course of business in an amount not to exceed $2,000,000 in the aggregate at any
time outstanding.
(g) Investments consisting of Interest Rate Protection Agreements to
the extent permitted under Section 9.1(k).
(h) Guaranties to the extent permitted under Section 9.1(f)(i) and
(iv) and Section 9.5.
(i) Investments of American Ski in Unrestricted Subsidiaries, as
follows:
(i) Direct Unrestricted Subsidiary Investments; PROVIDED that
the sum of Direct Unrestricted Subsidiary Investments and Real Estate
Guaranties shall not exceed $25,000,000 at any time;
(ii) Indirect Unrestricted Subsidiary Investments in an amount
not to exceed $25,000,000; PROVIDED that the aggregate amount of the
Investments under clauses (i) above and this clause (ii) shall not exceed
$40,000,000, except that if
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American Ski has Consolidated EBITDA in any immediately preceding fiscal
year of $75,000,000, this restriction shall not apply to Investments made
in the then current fiscal year; and
(iii) Investments in Unrestricted Subsidiaries, on or before May
12, 1998, made from Unrestricted Excess IPO Proceeds in accordance with the
investment policy attached hereto as SCHEDULE 9.3.
(j) Investments acquired in connection with the bankruptcy or workout
of account debtors.
(k) Investments consisting of (i) Pico's ownership of (A) 2001 shares
of the capital stock of Uplands Water, constituting approximately 95% of the
issued and outstanding capital stock thereof and (B) 61 shares of the capital
stock of Alpine Pipeline and all related wastewater disposal units, (ii)
Sugarloaf Mountain Corporation's ownership of a 10% interest in Sugarloaf Land
Partners I and a 10% interest in Sugarloaf Land Partners II, (iii) Steamboat
Ski & Resort Corporation's ownership of a 50% interest in Country Club Highlands
Partnership and (iv) ASC Utah's rights to acquire stock in Community Water
Company.
(l) Investments of American Ski in its Restricted Subsidiaries.
(m) Other Investments in an aggregate amount not to exceed
$5,000,000.
Section 9.4 MERGERS, ACQUISITIONS, ETC. Enter into any merger or
consolidation with or acquire all or substantially all of the assets of any
Person, or sell, assign, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially all of its
assets (whether now owned or hereafter acquired) to any Person, except for (a)
the merger of a Restricted Subsidiary into another Restricted Subsidiary, (b)
acquisitions approved in writing by the Majority Lenders and (c) Permitted
Acquisitions.
Section 9.5 TRANSACTIONS WITH AFFILIATES. Enter into any transaction,
including, without limitation, the purchase, sale or exchange of property or the
rendering of any service, with any Affiliate, except that American Ski and its
Restricted Subsidiaries (a) may pay reasonable salaries, fees and bonuses to
their directors, officers and employees as are usual and customary in American
Ski's or its Restricted Subsidiaries' business, (b) may enter into transactions
among each other on terms that are not materially less favorable to American Ski
or any Restricted Subsidiary than those which could be obtained at the time from
Persons who are not Affiliates and which transactions (to the extent in excess
of $250,000 for each transaction or a series of related transactions) are
disclosed to the Agent in Compliance Certificates, (c) may enter into
Investments permitted under Section 9.3(i) hereof and Real Estate Guaranties
permitted under Section 9.1(h) hereof, and (d) American Ski and its Restricted
Subsidiaries may enter into and perform their obligations under the Lender
Agreements and the American Ski - West Lender Agreements.
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Section 9.6 DISTRIBUTIONS. Make any Distribution or make any other
payment on account of the purchase, acquisition, redemption, or other retirement
of any shares of stock, whether now or hereafter outstanding, except that (a)
American Ski may make Distributions not to exceed, in the aggregate, 50% of
cumulative Consolidated Net Income after July 31, 1997 PROVIDED, that after
giving pro forma effect to such Distribution, the ratio of Consolidated Total
Debt to Consolidated EBITDA does not exceed 4.0-to-1 and ASC East, ASC West,
Inc. and ASC Utah may make lawful Distributions to American Ski in an aggregate
amount equal to the Distributions which American Ski is entitled to make under
this clause (a) and PROVIDED further that no Default shall exist at the time of
or be caused by any such Distribution; (b) ASC East may pay the principal amount
of the Xxxxx Tax Note and accrued interest thereon in accordance with its terms
at the times and to the extent permitted under the Xxxxx Subordination
Agreement; and (c) Restricted Subsidiaries of American Ski may make
Distributions to other Restricted Subsidiaries of American Ski.
Section 9.7 CAPITAL EXPENDITURES. Make any Capital Expenditure except
that:
(a) For the period commencing on the Closing Date and ending on April
30, 1998, American Ski and its Restricted Subsidiaries may make or commit to
make Capital Expenditures of not more than $25,000,000, of which not more than
25% may be used for Real Estate Capital Expenditures.
(b) For the trailing four-quarter period ending on April 30, 1999 and
each April 30 thereafter, the following limits shall apply to the Capital
Expenditures of American Ski and its Restricted Subsidiaries:
(i) If the Capital Expenditure Ratio as of April 30, 1998 and
any April 30 thereafter is less than 3.0-to-1, no overall limit shall
apply, except that Real Estate Capital Expenditures shall be limited to 25%
of the Additional Capital Expenditure Amount.
(ii) If the Capital Expenditure Ratio as of April 30, 1998 and
any April 30 thereafter is equal to or greater than 3.0-to-1, the limit
shall be the sum of (A) the Base Capital Expenditure Amount PLUS (B) the
Capital Expenditure Reinvestment Amount PLUS (C) the Additional Capital
Expenditure Amount.
(c) American Ski and its Restricted Subsidiaries may use the
Unrestricted Excess IPO Proceeds to make any Capital Expenditures.
Section 9.8 DISPOSITIONS OF ASSETS. Sell, lease or otherwise dispose of
any assets except for (a) the sale, lease or other disposition of inventory,
including residential real property held for resale, in the ordinary course of
business and (b) the Permitted Dispositions.
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Section 9.9 ASSUMPTIONS, GUARANTIES, ETC. OF INDEBTEDNESS OF OTHER
PERSONS. Assume, guarantee, endorse or otherwise be or become directly or
contingently liable (including, without limitation, by way of agreement,
contingent or otherwise, to purchase, provide funds for payment, supply funds to
or otherwise invest in any Person or otherwise assure the creditors of any such
Person against loss) in connection with any Indebtedness of any other Person,
except for (a) Real Estate Guaranties and (b) Guaranties by endorsement of
negotiable instruments for deposit or collection or similar transactions in the
ordinary course of business.
Section 9.10 ERISA. At any time while American Ski or any of its
Subsidiaries has a Pension Plan, permit any accumulated funding deficiency to
occur with respect to any Pension Plan or other employee benefit plans
established or maintained by American Ski or any of its Subsidiaries or to which
contributions are made by the American Ski or any of its Subsidiaries (the
"Plans"), and which are subject to the "Pension Reform Act" and the rules and
regulations thereunder or to Section 412 of the Internal Revenue Code, and at
all times comply in all material respects with the provisions of the Act and
Code which are applicable to the Plans. American Ski will not permit the
Pension Benefit Guaranty Corporation to cause the termination of any Pension
Plan under circumstances which would cause the lien provided for in Section 4068
of the Pension Reform Act to attach to the assets of American Ski or any of its
Subsidiaries.
Section 9.11 SALE AND LEASEBACK. Sell or transfer any of its properties
with the intention of taking back a lease of the same property or leasing other
property for substantially the same use as the property being sold or
transferred.
Section 9.12 RESTRICTIVE OR INCONSISTENT AGREEMENTS. Enter into any
agreement (a) other than the Lender Agreements, the ASC - West Lender
Agreements, the Senior Subordinated Notes Indentures, the Cerberus Purchase
Agreement and the Cerberus Amendment and Waiver Letter Agreement which, directly
or indirectly, prohibits or restrains, or has the effect of prohibiting or
restraining or otherwise imposes any materially adverse or burdensome condition
upon, the declaration or payment of dividends or distributions, the incurrence
of Indebtedness, the granting of liens, the making of loans or advances to
American Ski or any of its Restricted Subsidiaries or the amendment or
modification of any of the Lender Agreements or (b) containing any provision
that would be violated or breached by any Loan or the performance by American
Ski or any of its Restricted Subsidiaries of its obligations hereunder or under
any of the Lender Agreements.
Section 9.13 LIMITATIONS ON REAL ESTATE OPERATIONS. Engage in any real
estate development activities involving acquisition of land intended for resale
(except incident to a Permitted Acquisition) or development of residential
subdivisions, condominium units, hotels or related infrastructure and utilities,
except through the Unrestricted Subsidiaries and except for the permitted Real
Estate Capital Expenditures.
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Section 9.14 FISCAL YEAR. Change their fiscal year from the twelve-month
period ending on the last Sunday of July of each year.
Section 9.15 LIMITATION ON EXCESS PROCEEDS. So long as applicable,
permit Excess Proceeds (as defined in the Senior Subordinated Notes Indentures)
at any time to exceed $7,500,000.
Section 9.16 NO AMENDMENT OF SUBORDINATED NOTES; CERBERUS PURCHASE
AGREEMENT; CERBERUS AMENDMENT AND WAIVER LETTER AGREEMENT. Enter into any
amendment, modification or waiver of any of the terms or provision of Senior
Subordinated Notes or the Senior Subordinated Notes Indentures without the prior
written consent of the Majority Lenders. American Ski will not modify, amend or
supplement, or agree to any consent or waiver of any of the provisions of, the
Cerberus Purchase Agreement, the Cerberus Amendment and Waiver Letter Agreement
and the Certificate of Designation without the prior written consent of the
Majority Lenders.
Section 9.17 EXCHANGE OF CERBERUS 101/2% REPRICED CONVERTIBLE
EXCHANGEABLE PREFERRED STOCK AND AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT PENALTIES. Exercise its rights under Section 7 of the Certificate of
Designation to convert the Cerberus 101/2% Repriced Convertible Exchangeable
Preferred Stock into 101/2% Repriced Subordinated Debentures (as defined in the
Certificate of Designation) without the prior written consent of the Majority
Lenders or incur any Registration Delay Fees (as defined in the Amended and
Restated Registration Rights Agreement) pursuant to Section 2.1(b) of the
Amended and Restated Registration Rights Agreement without the prior written
consent of the Agent.
Section 9.18 LIMITATION ON ISSUANCE OF CAPITAL STOCK. American Ski will
not, and will not permit any of its Restricted Subsidiaries to, issue (a) any
class of preferred stock (other than the Series A Exchangeable Preferred Stock
or the 101/2% Repriced Convertible Exchangeable Preferred Stock) or (b) any
class of redeemable (except at the sole option of American Ski or such
Restricted Subsidiary) common stock.
ARTICLE 10. EVENTS OF DEFAULT AND REMEDIES
Section 10.1 EVENTS OF DEFAULT. Each of the following events shall be
deemed to be Events of Default hereunder:
(a) American Ski or any Restricted Subsidiary shall fail to make any
payment in respect of (i) the principal of any of the Lender Obligations as the
same shall become due, whether at the stated payment dates, required prepayment
or by acceleration, demand or otherwise, or (ii) interest or commitment fees on
or in respect of any of the Lender Obligations as the same shall become due, and
such failure shall continue for a period of five (5) days.
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(b) American Ski or any Restricted Subsidiary shall fail to perform
or observe any of the terms, covenants, conditions or provisions of Articles 6,
7, 8 or 9 hereof; PROVIDED, HOWEVER, that with respect to the terms, covenants,
conditions and provisions of Article 6 only (except for Sections 6.5, 6.6 and
6.11), the Agent shall notify American Ski of American Ski's failure to provide
the required reports when due and the Agent shall allow American Ski five (5)
days to comply with the terms, covenants, conditions and provisions of Article
6.
(c) American Ski or any Restricted Subsidiary shall fail to perform
or observe any other term, covenant, condition or provision to be performed or
observed by American Ski or any Restricted Subsidiary under this Agreement or
any other Lender Agreement, and such failure shall not be rectified or cured to
the Agent's satisfaction within thirty (30) days after written notice thereof to
American Ski.
(d) Any representation or warranty of American Ski or any Restricted
Subsidiary herein or in any other Lender Agreement or any amendment to any
thereof shall have been materially false or misleading at the time made or
intended to be effective.
(e) American Ski or any Restricted Subsidiary (i) shall fail to make
any payment of principal of or interest on Indebtedness for money borrowed of
American Ski or any Restricted Subsidiary with an outstanding principal amount
of greater than $2,000,000 or any Guaranty of money borrowed with an outstanding
principal amount of greater than $2,000,000 when such payment is due (whether by
scheduled maturity, required prepayment, acceleration, demand or otherwise) or
shall fail to perform or observe any provision of any agreement or instrument
relating to such Indebtedness, and such failure shall permit the holder thereof
to accelerate such Indebtedness or (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.
(f) American Ski or any Restricted Subsidiary shall be involved in
financial difficulties as evidenced:
(i) by its commencement of a voluntary case under Title 11 of
the United States Code as from time to time in effect, or by its
authorizing, by appropriate proceedings of its board of directors or other
governing body, the commencement of such a voluntary case;
(ii) by its filing an answer or other pleading admitting or
failing to deny the material allegations of a petition filed against it
commencing an involuntary case under said Title 11, or seeking, consenting
to or acquiescing in the relief therein provided, or by its failing to
controvert timely the material allegations of any such petition;
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(iii) by the entry of an order for relief in any involuntary
case commenced under said Title 11;
(iv) by its seeking relief as a debtor under any applicable law,
other than said Title 11, of any jurisdiction relating to the liquidation
or reorganization of debtors or to the modification or alteration of the
rights of creditors, or by its consenting to or acquiescing in such relief;
(v) by the entry of an order by a court of competent
jurisdiction (1) finding it to be bankrupt or insolvent, (2) ordering or
approving its liquidation, reorganization or any modification or alteration
of the rights of its creditors or (3) assuming custody of, or appointing a
receiver or other custodian for all or a substantial part of its property
and such order shall not be vacated or stayed on appeal or otherwise stayed
within 30 days;
(vi) by the filing of a petition against American Ski or any
Restricted Subsidiary under said Title 11 which shall not be vacated within
30 days; or
(vii) by its making an assignment for the benefit of, or
entering into a composition with, its creditors, or appointing or
consenting to the appointment of a receiver or other custodian for all or a
substantial part of its property.
(g) There shall have occurred a judgment against American Ski or any
Restricted Subsidiary in any court (i) for an amount in excess of $2,000,000 and
from which no appeal has been taken or with respect to which all appeal periods
have expired, unless such judgment is, to the Agent's satisfaction, insured
against in full (less the applicable policy deductible) or (ii) which shall have
a Material Adverse Effect.
(h) Xxxxxx X. Xxxxx shall cease to serve actively as a director and
full-time chief executive officer of American Ski and each Borrower, whether by
reason of death, disability, resignation, action by the Board of Directors, or
otherwise, and in the case of his death or disability only, the passage of 120
days after such event.
(i) The Xxxxx Shareholders shall cease to own of record and
beneficially at least 25% of the issued and outstanding capital stock of
American Ski, on a fully diluted basis.
(j) Any person or group of persons within the meaning of Section 13
or 14 of the Securities Exchange Act of 1934, as amended, other than the Xxxxx
Shareholders, shall own of record or beneficially more than 35% of the issued
and outstanding capital stock of American Ski.
(k) The Xxxxx Shareholders shall cease to have the power to elect
two-thirds of the directors of American Ski.
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(l) American Ski shall cease to own, directly or indirectly, of
record and beneficially all of the issued and outstanding capital stock of any
Material Restricted Subsidiary, except as a result of a Permitted Disposition or
the exercise of the Sugarloaf warrants described on SCHEDULE 8.9 hereto. For
purposes of this Section 10.1(l), a "Material Restricted Subsidiary" shall mean
a Restricted Subsidiary (i) whose assets constitute greater than 5% of the
consolidated assets of American Ski and its Restricted Subsidiaries or (b) whose
revenues contributed greater than 5% of the consolidated revenues of American
Ski and its Restricted Subsidiaries for any fiscal year during the preceding
three fiscal years.
(m) Any "Event of Default" under any other Lender Agreement or any of
the American Ski - West Lender Agreements shall have occurred.
(n) Any of the Lender Agreements or the American Ski - West Lender
Agreements shall be canceled, terminated, revoked or rescinded otherwise than in
accordance with the terms thereof or with the express prior written agreement,
consent or approval of the Agent; or any Lender Agreement, or any Lien granted
thereunder, shall (except in accordance with its terms or the terms of this
Agreement), in whole or in part, terminate, cease to be effective or cease to be
the legally valid, binding and enforceable obligation of any Borrower or
Guarantor; or any Lien securing any Lender Obligation shall, in whole or in
part, cease to be a perfected first priority Lien, subject only to those
exceptions expressly permitted by a Lender Agreement or the terms of this
Agreement and except to the extent that any such Lien has ceased to be a
perfected first priority Lien solely due to an act or omission by the Agent or a
Lender; or any action at law suit or in equity or other legal proceeding to
cancel, revoke or rescind any of the Lender Agreements or the American Ski -
West Lender Agreements shall be commenced by or on behalf of American Ski or any
Restricted Subsidiary, or any court or any other governmental or regulatory
authority or agency of competent jurisdiction shall make a determination that,
or issue a judgment, order, decree or ruling to the effect that, any one or more
of the Lender Agreements or American Ski - West Lender Agreements is illegal,
invalid or unenforceable in accordance with the terms thereof.
(o) American Ski or any Restricted Subsidiary shall be indicted for a
federal crime, a punishment for which could include the forfeiture of any assets
of American Ski or such Restricted Subsidiary.
(p) American Ski or ASC West, Inc. shall make a claim for
indemnification under the Kamori Stock Purchase Agreement in an amount in excess
of $250,000.
(q) The subordination provisions relating to any Subordinated
Indebtedness shall fail to be enforceable by the Lenders (which have not
effectively waived the benefits thereof) in accordance with the terms thereof,
or the principal or interest on any Lender Obligation shall fail to constitute
Senior Indebtedness (or similar term, as defined in any such Subordinated
Indebtedness) or any Borrower, Guarantor, Restricted Subsidiary or any holder of
Subordinated Indebtedness shall, directly or indirectly, disavow or contest in
any manner (i)
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the effectiveness, validity or enforceability of any of the provisions of the
Subordinated Indebtedness, (ii) that any of such provisions of Subordinated
Indebtedness exist for the benefit of the Agent and each Lender or (iii) that
all payments of principal or interest with respect to any such Subordinated
Indebtedness made by the Borrower, any Guarantor or any Restricted Subsidiary,
or realized from the liquidation of any property of the Borrower, any Guarantor
or any Restricted Subsidiary, shall be subject to any of such provisions of
Subordinated Indebtedness.
Section 10.2 REMEDIES. Upon the occurrence of an Event of Default, in
each and every case, the Agent may, and upon the request of the Majority Lenders
shall, proceed to protect and enforce the rights of the Agent and the Lenders by
suit in equity, action at law and/or other appropriate proceeding either for
specific performance of any covenant or condition contained in this Agreement or
any other Lender Agreement or in any instrument delivered to the Agent or the
Lenders pursuant hereto or thereto, or in aid of the exercise of any power
granted in this Agreement, any Lender Agreement or any such instrument, and
(unless there shall have occurred an Event of Default under Section 10.1(f), in
which case the unpaid balance of the Lender Obligations shall automatically
become due and payable without notice or demand) by notice in writing to the
Borrowers (a) declare the obligations of the Lenders to make Revolving Credit
Advances, the obligation of the Swing Line Lender to make Swing Line Loans and
the obligations of the Issuing Bank to issue, extend or renew Letters of Credit
to be terminated, whereupon such obligations shall be terminated, (b) declare
all or any part of the unpaid balance of the Lender Obligations then outstanding
to be forthwith due and payable, whereupon such unpaid balance or part thereof
shall become so due and payable without presentation, protest or further demand
or notice of any kind, all of which are hereby expressly waived, and the Agent
may proceed to enforce payment of such balance or part thereof in such manner as
the Agent may elect, and the Agent and each Lender may offset and apply toward
the payment of such balance or part thereof any Indebtedness of the Agent or any
Lender to any Borrower or to any Subsidiary, or to any obligor of the Lender
Obligations, including any Indebtedness represented by deposits in any general
or special account maintained with the Agent or any Lender or with any other
Person controlling, controlled by or under common control with the Agent or any
Lender and (c) demand that the Borrowers provide cash collateral to the Agent as
security for the Revolving Credit Lenders in an amount equal to 105% of the
Letter of Credit Exposure which the Borrowers shall provide to the Agent
immediately upon such demand.
Section 10.3 DISTRIBUTION OF PROCEEDS. Notwithstanding anything to the
contrary contained herein, in the event that following the occurrence or during
the continuance of any Event of Default, the Agent or any Lender receives any
monies on account of the Lender Obligations from the Borrowers or otherwise,
such monies shall be distributed for application as follows:
(a) First, to the payment of or the reimbursement of, the Agent for
or in respect of all costs, expenses, disbursements and losses which shall have
been incurred or
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sustained by the Agent in connection with the collection of such monies by the
Agent, or in connection with the exercise, protection or enforcement by the
Agent of all or any of the rights, remedies, powers and privileges of the Agent
or the Lenders under this Agreement or any other Lender Agreement;
(b) Second, to the payment of all interest, including interest on
overdue amounts, and late charges, then due and payable with respect to the
Loans, allocated among the Lenders in proportion to their respective Commitment
Percentages;
(c) Third, to the payment of the outstanding principal balance of the
Loans, allocated among the Lenders in proportion to their respective Commitment
Percentages;
(d) Fourth, to any other outstanding Lender Obligations, allocated
among the Lenders in proportion to their respective Commitment Percentages; and
(e) Fifth, to the extent that the Agent receives any monies pursuant
to the American Ski - West Lender Agreements, to the payment of the American
Ski - West Lender Obligations in accordance with the provisions of Section 10.3
of the American Ski - West Credit Agreement.
(f) Sixth, the excess, if any, shall be returned to the Borrowers or
to such other Persons as are entitled thereto.
ARTICLE 11. CONSENTS; AMENDMENTS; WAIVERS; REMEDIES
Section 11.1 ACTIONS BY LENDERS. Except as otherwise expressly set forth
in any particular provision of this Agreement, any consent or approval required
or permitted by this Agreement to be given by the Lenders, including without
limitation under Section 11.2, may be given, and any term of this Agreement or
of any other instrument related hereto or mentioned herein may be amended, and
the performance or observance by American Ski or any Restricted Subsidiary of
any term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively) with, but only with, the
written consent of American Ski, the Borrowers and the Majority Lenders;
PROVIDED, HOWEVER, that (a) no amendment of Section 2.18 may be made without the
consent of the Swing Line Lender, (b) no amendment of Article 13 may be made
without the consent of the Agent and (c) without the written consent of all
Lenders:
(i) no reduction in the interest rates on or any fees or
refinancing premium relating to the Loans shall be made;
(ii) no extension or postponement shall be made of the stated
time of payment of the principal amount of, interest on, or fees payable to
the Lenders or the
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Swing Line Lender relating to the Term Loans and the Revolving Credit
Advances or the Swing Line Loans, respectively;
(iii) no change in the Maximum Revolving Credit Amount or the
principal amount of the Term Loans and extension of the Revolving Credit
Termination Date or the Term Loan Maturity Date shall be made;
(iv) no release of all or substantially all of the collateral
security for, or any guarantor of, the Lender Obligations shall be made;
(v) no change in the definition of the term "Majority Lenders"
shall be made; and
(vi) no change in the provisions of Section 12.1(a) or this
Section 11.1 shall be made.
Section 11.2 ACTIONS BY BORROWERS. No delay or omission on the Agent's
or the Lenders' part in exercising their rights and remedies against American
Ski, the Borrowers or any other interested party shall constitute a waiver. A
breach by American Ski or any Borrower of its obligations under this Agreement
may be waived only by a written waiver executed by the Agent and the Lenders in
accordance with Section 11.1. The Agent's and the Lenders' waiver of American
Ski's or a Borrower's breach in one or more instances shall not constitute or
otherwise be an implicit waiver of subsequent breaches. To the extent permitted
by applicable law, American Ski and the Borrowers, jointly and severally, hereby
agree to waive, and do hereby absolutely and irrevocably waive, (a) all
presentments, demands for performance, notices of protest and notices of
dishonor in connection with any of the Indebtedness evidenced by the Term Loan
Notes, the Revolving Credit Notes and the Swing Line Note (b) any requirement of
diligence or promptness on the Agent's or the Lenders' part in the enforcement
of their rights under the provisions of this Agreement or any Lender Agreement
and (c) any and all notices of every kind and description which may be required
to be given by any statute or rule of law with respect to its liability (i)
under this Agreement or in respect of the Indebtedness evidenced by the Term
Loan Notes, the Revolving Credit Notes and the Swing Line Note, or any other
Lender Obligation or (ii) under any other Lender Agreement. No course of
dealing between any American Ski or any Borrower or American Ski and the
Borrowers collectively and the Agent or the Lenders shall operate as a waiver of
any of the Agent's or the Lenders' rights under this Agreement or any Lender
Agreement or with respect to any of the Lender Obligations. This Agreement
shall be amended only by a written instrument executed by the Agent and the
Lenders in accordance with Section 11.1 making explicit reference to this
Agreement. The Agent's and the Lenders' rights and remedies under this
Agreement and under all subsequent agreements between the Agent, the Lenders,
American Ski and the Borrowers shall be cumulative and any rights and remedies
expressly set forth herein shall be in addition to, and not in limitation of,
any other rights and remedies which may be applicable to the Agent and the
Lenders in law or at equity.
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ARTICLE 12. SUCCESSORS AND ASSIGNS
Section 12.1 GENERAL. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors
(which shall include in the case of the Agent or any Lender any entity resulting
from a merger or consolidation) and assigns, except that (a) neither American
Ski nor any Borrower may assign its rights or obligations under this Agreement
and (b) each Lender may assign its rights in this Agreement only as set forth
below in this Article 12.
Section 12.2 ASSIGNMENTS.
(a) ASSIGNMENTS. In compliance with applicable laws with respect to
such assignment and with the consent of the Agent and, so long as no Event of
Default has occurred and except for assignments between and among the Lenders,
affiliates of the Lenders or an Approved Fund, American Ski on behalf of the
Borrowers (which consents shall not be unreasonably withheld), a Lender may
assign to one or more financial institutions (each a "Successor Lender") a
proportionate part of its rights and obligations in connection with this
Agreement, its Term Loan Note, its Revolving Credit Note and the related Lender
Agreements and its American Ski - West Term Loan Note, American Ski - West
Revolving Credit Note and the related American Ski - West Lender Agreements and
each such Successor Lender shall assume such rights and obligations pursuant to
an Assignment and Acceptance Agreement ("Assignment and Acceptance Agreement")
duly executed by such Successor Lender and such assigning Lender and
acknowledged and consented to by the Agent and, so long as no Event of Default
has occurred and except for assignments between and among the Lenders,
affiliates of the Lenders or an Approved Fund, American Ski on behalf of the
Borrowers, substantially in the form of EXHIBIT P attached hereto. Any
assignment under this Section 12.2(a) shall be of the Consolidated Maximum
Revolving Credit Amount and the Consolidated Term Loans in an aggregate minimum
amount of $5,000,000 except that there shall be no minimum assignment amount in
the case of (i) assignments between and among the Lenders, affiliates of the
Lenders or an Approved Fund and (ii) an assignment of a Lender's total remaining
interest that is in an amount less than $5,000,000. In connection with any
assignment under this Section 12.2(a) there shall be paid to the Agent by the
assigning Lender or the Successor Lender an administrative processing fee in the
amount of $2,500.
(b) ASSIGNMENT PROCEDURES. In the event of an assignment in
accordance with Section 12.2(a), upon execution and delivery of such an
assignment at least five (5) Business Days prior to the proposed assignment
date, and payment by such Successor Lender to the assigning Lender of an amount
equal to the purchase price agreed between such assigning Lender and such
Successor Lender, such Successor Lender shall become party to this Agreement as
a signatory hereto and shall have all the rights and obligations of a Lender
under this Agreement and the other Lender Agreements with an interest therein as
set forth in such assignment, and such assignor making such assignment shall be
released from its obligations
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hereunder to a corresponding extent, and no further consent or action by any
party shall be required. Upon the consummation of any such assignment, the
assigning Lender, the Successor Lender and the Borrowers shall make appropriate
arrangements so that, if required, a new Term Loan Note, American Ski - West
Term Loan Note, Revolving Credit Note and American Ski - West Revolving Credit
Note, as appropriate, is issued to the Successor Lender and a replacement Term
Loan Note and/or Revolving Credit Note is issued to the assigning Lender in
principal amounts reflecting their respective revised interests.
(c) REGISTER. The Agent shall maintain a register (the "Register")
for the recordation of (i) the names and addresses of all Successor Lenders that
enter into Assignment and Acceptance Agreements, (ii) the interests of each
Lender, (iii) the principal amount of the Term Loans owing to each Term Loan
Lender from time to time, (iv) the amounts of the Revolving Credit Advances
owing to each Revolving Credit Lender from time to time and (v) the amounts of
the Swing Line Loans owing to the Swing Line Lender from time to time. The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrowers, the Agent and the Lenders may treat each Person whose name is
registered therein for all purposes as a party to this Agreement. The Register
shall be available for inspection by the Borrowers and any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(d) FURTHER ASSURANCES. American Ski and the Borrowers shall sign
such documents and take such other actions from time to time reasonably
requested by the Agent or a Lender to enable any Successor Lender to share in
the benefits and rights created by the Lender Agreements.
(e) ASSIGNMENTS TO FEDERAL RESERVE BANK. Any Lender at any time may
assign all or any portion of its rights under this Agreement, its Term Loan Note
and/or its Revolving Credit Note to a Federal Reserve Bank. No such assignment
shall release the transferor Lender from its obligations hereunder.
(f) ASSIGNMENTS OF SECURITY AGREEMENTS/ENDORSEMENTS TO TITLE
POLICIES. In connection with the assignment by a Lender of its rights under
this Agreement, its Term Loan Note and/or its Revolving Credit Note, such Lender
shall assign all of its rights under the Security Agreements to the applicable
Successor Lender. In connection with the assignment of the Mortgages and the
Collateral Assignment of Leases from such Lender to such Successor Lender,
American Ski and the Borrowers shall provide the Agent with appropriate and
acceptable endorsements to the title policies insuring the Lien of the Mortgages
reflecting the Assignment of the Mortgages and the Assignment of Leases to such
Successor Lender in form and substance acceptable to the Agent and the Successor
Lender.
Section 12.3 PARTICIPATIONS. Any Lender may, without the consent of the
Borrowers or the Agent, at any time grant or offer to grant to one or more
financial institutions ("Credit Participants") participating interests in such
Lender's rights and obligations in this Agreement,
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its Term Loan Note, its Revolving Credit Note and the related Lender Agreements,
and each such Credit Participant shall acquire such participation subject to the
terms set forth below.
(a) PROCEDURE. Each Lender granting such participation shall comply
with all applicable laws with respect to such transfer and shall remain
responsible for the performance of its obligations hereunder and under the other
Lender Agreements and shall retain the sole right and responsibility to exercise
its rights and to enforce the obligations of American Ski and the Borrowers
hereunder and under the other Lender Agreements, including the right to consent
to any amendment, modification or waiver of any provision of any Lender
Agreement, except for those matters referred to in Section 11.1 which require
the consent of all Lenders and which may also require the consent of each Credit
Participant.
(b) DEALING WITH LENDERS. American Ski and the Borrowers shall
continue to deal solely and directly with the Lenders in connection with their
rights and obligations under this Agreement and the other Lender Agreements.
(c) RIGHTS OF CREDIT PARTICIPANTS. The Borrowers agree that each
Credit Participant shall, to the extent provided in its participation
instrument, be entitled to the benefits of Sections 2.9, 2.10, 2.11, 2.13, 2.14
and 14.5, and the set-off rights in Section 10.2 with respect to its
participating interest; PROVIDED, HOWEVER, that no Credit Participant shall be
entitled to receive any greater payment under such Sections than the Lender
granting such participation would have been entitled to receive with respect to
the interests transferred.
(d) NOTICE. At the time of granting any participation, the Lender
granting such participation shall notify the Agent and the Borrowers.
ARTICLE 13. THE AGENT
Section 13.1 AUTHORIZATION AND ACTION. Each Lender hereby appoints and
authorizes the Agent to take such action on its behalf and to exercise such
powers under this Agreement and the other Lender Agreements as are delegated to
the Agent by the terms hereof and thereof, together with such powers as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement and the other Lender Agreements (including, without limitation,
enforcement or collection of the Term Loan Notes and the Revolving Credit
Notes), the Agent shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Majority Lenders, and such instructions shall be binding upon all Lenders;
PROVIDED, HOWEVER, that the Agent shall not be required to take any action which
exposes the Agent to liability or which is contrary to this Agreement or the
other Lender Agreements or applicable law. Subject to the foregoing provisions
and to the other provisions of this Article 13, the Agent shall, on behalf of
the Lenders: (a) execute any documents on behalf of the Lenders providing
collateral for or guarantees of the Lender
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Obligations; (b) hold and apply any collateral for the Lender Obligations, and
the proceeds thereof, at any time received by it, in accordance with the
provisions of this Agreement and the other Lender Agreements; (c) exercise any
and all rights, powers and remedies of the Lenders under this Agreement or any
of the other Lender Agreements, including the giving of any consent or waiver or
the entering into of any amendment, subject to the provisions of Section 11.1;
(d) at the direction of the Lenders, execute, deliver and file UCC financing
statements, mortgages, deeds of trust, lease assignments and such other
agreements in respect of any collateral for the Lender Obligations, and possess
instruments included in the collateral on behalf of the Lenders; and (e) in the
event of acceleration of American Ski's or the Borrowers' Indebtedness
hereunder, act at the direction of the Majority Lenders to exercise the rights
of the Lenders hereunder and under the other Lender Agreements.
Section 13.2 AGENT'S RELIANCE, ETC. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable to the Lenders for any
action taken or omitted to be taken by it or them under or in connection with
this Agreement or the other Lender Agreements, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, the Agent: (a) may treat the payee of any Term Loan Note or any
Revolving Credit Note as the holder thereof until the Agent receives written
notice of the assignment or transfer thereof signed by such payee and in form
required under Article 12 hereof; (b) may consult with legal counsel,
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (c) makes no
warranty or representations to any Lender and shall not be responsible to any
Lender for any statements, warranties or representations made in or in
connection with this Agreement or the other Lender Agreements; (d) shall not
have any duty to ascertain or to inquire as to the performance or observance of
any of the terms, covenants or conditions of this Agreement or the other Lender
Agreements on the part of American Ski or the Borrowers or any other Person or
to inspect the property (including the books and records) of American Ski or the
Borrowers or any other Person; (e) shall not be responsible to any Lender for
the due execution, legality, validity, enforceability, genuineness, sufficiency
or value of this Agreement or the other Lender Agreements or any other
instrument or document furnished pursuant hereto or thereto; and (f) shall incur
no liability under or in respect of this Agreement or the other Lender
Agreements by acting upon any notice, consent, certificate or other instrument
or writing (which may be by telecopy or telegram) believed by the Agent to be
genuine and signed or sent by the proper party or parties.
Section 13.3 AGENT AS A LENDER. With respect to its interest in its
Commitment Percentage of the Loans hereunder, BankBoston, N.A. shall have the
same rights and powers under this Agreement and the other Lender Agreements as
any other Lender and may exercise the same as though it were not the Agent; and
the term "Lender" or "Lender(s)" shall, unless otherwise expressly indicated,
include BankBoston, N.A. in its individual capacity. BankBoston, N.A. and its
affiliates may lend money to, and generally engage in any kind of business with,
American Ski, any Borrower, any Affiliate of American Ski and any Person
97
who may do business with or own securities of American Ski or any such Affiliate
of American Ski, all as if BankBoston, N.A. were not the Agent and without any
duty to account therefor to the Lenders.
Section 13.4 LENDER CREDIT DECISION. Each Lender acknowledges that it
has, independently and without reliance upon the Agent or any other Lender and
based on the financial statements referred to in Section 5.9 and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
Section 13.5 INDEMNIFICATION OF AGENT. Each Lender agrees to indemnify
the Agent and its directors, officers, employees and agents (to the extent that
the Agent is not reimbursed by American Ski or the Borrowers), ratably according
to each Lender's Commitment Percentage, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against the Agent or its directors,
officers, employees or agents in any way relating to or arising out of this
Agreement or any other Lender Agreement or any action taken or omitted by the
Agent in such capacity under this Agreement; PROVIDED that no Lender shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the Agent's gross negligence or wilful misconduct. Without limitation of
the foregoing, each Lender agrees to reimburse the Agent promptly upon demand
for its ratable share of any out-of-pocket expenses (including counsel fees)
incurred by the Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement and each other Lender
Agreement, to the extent that the Agent is not reimbursed for such expenses by
American Ski the Borrowers.
Section 13.6 SUCCESSOR AGENT. Except as provided below, the Agent may
resign at any time by giving written notice thereof to the Lenders and American
Ski. Upon any such resignation, the Lenders shall have the right to appoint a
successor Agent which shall be reasonably acceptable to American Ski. If no
successor Agent shall have been so appointed by the Lenders (other than the
resigning Agent), and shall have accepted such appointment, within thirty (30)
days after the retiring Agent's giving notice of resignation, then the retiring
Agent may, on behalf of the Lenders, appoint a successor Agent, which shall be a
commercial bank or financial institution organized under the laws of the United
States of America or of any state thereof and having a combined capital and
surplus of at least $50,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
98
of the retiring Agent, and the retiring Agent shall be discharged from its
duties and obligations under this Agreement and the other Lender Agreements.
After any retiring Agent's resignation hereunder as Agent, the provisions of
this Article 13 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Agent under this Agreement and the other Lender
Agreements.
Section 13.7 AMENDMENT OF ARTICLE 13. American Ski and the Borrowers
hereby agree that the foregoing provisions of this Article 13 constitute an
agreement among the Agent and the Lenders (and the Agent and the Lenders
acknowledge that except for the provisions of Section 13.6, American Ski and the
Borrowers are not parties to or bound by such foregoing provisions) and that any
and all of the provisions of this Article 13 (excepting Section 13.6) may be
amended at any time by the Lenders and the Agent without the consent or approval
of, or notice to, American Ski and the Borrowers (other than the requirement of
notice to American Ski and the Borrowers of the resignation of the Agent and the
appointment of a successor Agent).
Section 13.8 DOCUMENTATION AGENT. Each Lender hereby designates and
appoints DLJ Capital Funding, Inc. as the documentation agent (the
"Documentation Agent") under this Agreement. The Documentation Agent shall
undertake such responsibilities with respect to the credits extended under this
Agreement as directed from time to time by the Agent. In administering its
duties hereunder, the Documentation Agent shall be entitled to the provisions of
this Article 13 governing the actions of the Agent.
ARTICLE 14. MISCELLANEOUS
Section 14.1 NOTICES. All notices and other communications made or
required to be given pursuant to this Agreement shall be in writing and shall be
mailed by United States mail, postage prepaid, or sent by hand, by telecopy or
by nationally-recognized overnight carrier service, addressed as follows:
(a) If to the Agent, at 000 Xxxxxxx Xxxxxx, Xxxxxx, XX 00000,
Telecopier No. 617/434-8102, Attention: Xx. Xxxxxxx X. Xxxxxxxx, Director, with
a copy to: Xxxxxxx, Procter & Xxxx XXX, Xxxxxxxx Xxxxx, Xxxxxx, XX 00000,
Telecopier No. 617/523-1231, Attention: Xxxxxx Xxxxxx Xxxxxx, Xx., P.C., or at
such other address(es) or to the attention of such other Person(s) as the Agent
shall from time to time designate in writing to American Ski and the Lenders.
(b) If to American Ski or the Borrowers, c/o American Skiing Company,
X.X. Xxx 000, Xxxxxx, XX 00000, or for overnight delivery service, Sunday Xxxxx
Xxxx, Xxxxxx, XX 00000, Telecopier No. 207/824-0192, Attention: Xxxxxxxxxxx X.
Xxxxxx, Esq., Senior Vice President and Chief Administrative Officer and Xxxxxx
X. Xxxxxxxxxx, Chief
99
Financial Officer, with a copy to: Xxxxx X. Xxxxxxxx, Esq., Xxxxxx Xxxxxx, Xxx
Xxxxxxxx Xxxxxx, Xxxxxxxx, XX 00000 or at such other address(es) or to the
attention of such other Person(s) as American Ski shall from time to time
designate in writing to the Agent and the Lenders.
(c) If to any Lender, at the address(es) and to the attention of the
Person(s) specified below such Lender's name on the execution page of this
Agreement (or in the case of a Successor Lender, at the address(es) and to the
attention of the Person(s) specified in the Assignment and Acceptance Agreement
executed by such Successor Lender), or at such other address(es) and to the
attention of such other Person(s) as any Lender shall from time to time
designate in writing to the Agent and American Ski.
Any notice so addressed and mailed by registered or certified mail shall be
deemed to have been given when mailed. Any notice so addressed and sent by
hand, by telecopy or by overnight carrier service shall be deemed to have been
given when received.
A notice from the Agent stating that it has been given on behalf of the
Lenders shall be relied upon by American Ski and the Borrowers as having been
given by the Lenders.
Section 14.2 MERGER. This Agreement and the other Lender Agreements and
documents contemplated hereby constitute the entire agreement of American Ski,
the Borrowers, the Agent and the Lenders and express their entire understanding
with respect to credits advanced or to be advanced by the Lenders to the
Borrowers.
Section 14.3 GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement
shall be governed by and construed and enforced under the laws of The
Commonwealth of Massachusetts. American Ski, each of its Subsidiaries and each
Lender hereby irrevocably submits itself to the non-exclusive jurisdiction of
the courts of The Commonwealth of Massachusetts and to the non-exclusive
jurisdiction of any Federal court of the United States located in the District
of Massachusetts for the purpose of any suit, action or other proceeding arising
out of this Agreement or any other Lender Agreement or any of the transactions
contemplated hereby or thereby.
Section 14.4 COUNTERPARTS. This Agreement and all amendments to this
Agreement may be executed in several counterparts, each of which shall be an
original. The several counterparts shall constitute a single Agreement.
Section 14.5 EXPENSES AND INDEMNIFICATION.
(a) American Ski and the Borrowers agree, jointly and severally, to
pay, on demand, all of the Agent's reasonable expenses in preparing, executing,
delivering and administering this Agreement, the Lender Agreements, all related
instruments and documents and any requested amendment, waiver or consent
relating hereto or thereto, including, without
100
limitation, the reasonable fees and out-of-pocket expenses of the Agent's
third-party consultants, special counsel, Xxxxxxx, Procter & Xxxx LLP, and
local counsel in each jurisdiction in which American Ski or any Restricted
Subsidiary has assets and the Agent's and Lenders' reasonable expenses in
connection with periodic audits of American Ski and its Restricted Subsidiaries.
American Ski and the Borrowers also agree, jointly and severally, to pay, on
demand, all reasonable out-of-pocket expenses incurred by the Agent and the
Lenders, including, without limitation, reasonable legal, accounting and
third-party consultant fees, in connection with the collection of amounts due
hereunder and under all other Lender Agreements upon the occurrence of a Default
hereunder, the revision, protection or enforcement of any of the Agent's or the
Lenders' rights against American Ski and the Borrowers under this Agreement, the
Notes, the Guaranty Agreements, the Security Agreements, and all other Lender
Agreements and the administration of special problems that may arise under this
Agreement or any other Lender Agreement. American Ski and the Borrowers also
agree, jointly and severally, to pay all stamp and other taxes in connection
with the execution and delivery of this Agreement and related instruments and
documents.
(b) Without limitation of any other obligation or liability of
American Ski and the Borrowers or right or remedy of the Agent or the Lenders
contained herein, American Ski and the Borrowers hereby covenant and agree,
jointly and severally, to indemnify and hold the Agent, the Lenders, and the
directors, officers, subsidiaries, shareholders, agents, affiliates and Persons
controlling the Agent and the Lenders, harmless from and against any and all
damages, losses, settlement payments, obligations, liabilities, claims,
including, without limitation, claims for finder's or broker's fees, actions or
causes of action, and reasonable costs and expenses incurred, suffered,
sustained or required to be paid by any such indemnified party in each case by
reason of or resulting from any claim, investigation, litigation or other
proceeding related to the entering into of this Agreement or any other Lender
Agreement, the use of any Letter of Credit or the proceeds of any Loans, the
consummation of the transactions contemplated herein, the exercise by the Agent
and the Lenders of their rights and remedies, or otherwise relating to the
transactions contemplated hereby, other than any such claims which are
determined by a final, non-appealable judgment or order of a court of competent
jurisdiction to be the result of the gross negligence or willful misconduct of
such indemnified party. Promptly upon receipt by any indemnified party
hereunder of notice of the commencement of any action against such indemnified
party for which a claim is to be made against American Ski and the Borrowers
hereunder, such indemnified party shall notify American Ski in writing of the
commencement thereof, although the failure to provide such notice shall not
affect the indemnification rights of any such indemnified party hereunder unless
and only to the extent American Ski demonstrates to the reasonable satisfaction
of such party that such failure to provide notice prejudiced American Ski and
the Borrowers in their defense of such claim. American Ski and the Borrowers
shall have the right, at their option upon notice to the indemnified parties, to
defend any such matter at their own expense and with their own counsel, except
as provided below, which counsel must be reasonably acceptable to the
indemnified parties. The indemnified party shall cooperate with American Ski
and the Borrowers in the defense of such matter. The
101
indemnified party shall have the right to employ separate counsel and to
participate in the defense of such matter at its own expense. In the event that
(a) the employment of separate counsel by an indemnified party has been
authorized in writing by American Ski, (b) American Ski and the Borrowers have
failed to assume the defense of such matter within fifteen (15) days of notice
thereof from the indemnified party, or (c) the named parties to any such action
(including impleaded parties) include any indemnified party who has been advised
by counsel that there may be one or more legal defenses available to it or
prospective bases for liability against it, which are different from those
available to or against American Ski and the Borrowers, then American Ski and
the Borrowers shall not have the right to assume the defense of such matter with
respect to such indemnified party. American Ski and he Borrowers shall not
compromise or settle any such matter against an indemnified party without the
written consent of the indemnified party, which consent may not be unreasonably
withheld or delayed.
Section 14.6 CONFIDENTIALITY. The Agent and the Lenders agree to use
commercially reasonable efforts to keep in confidence all financial data and
other information relative to the affairs of American Ski and its Subsidiaries
heretofore furnished or which may hereafter be furnished to them pursuant to the
provisions of this Agreement; PROVIDED, HOWEVER, that this Section 14.6 shall
not be applicable to information otherwise disseminated to the public by
American Ski or any of its Subsidiaries or any of their Affiliates; and PROVIDED
FURTHER, that such obligation of the Agent and the Lenders shall be subject to
the Agent's or the Lenders', as the case may be, (a) obligation to disclose such
information pursuant to a request or order under applicable laws and regulations
or pursuant to a subpoena or other legal process, (b) right to disclose any such
information to bank or other regulatory examiners, affiliates, auditors,
accountants and counsel or to any Person who evaluates, approves, structures or
administers the Loans on behalf of a Lender who agree to keep such information
confidential and (c) right to disclose any such information (i) in connection
with the transactions set forth herein including assignments or the sale of
participation interests pursuant to Article 12, so long as such potential
assignees or participants shall agree in writing to be bound by the terms of
this Section 14.6 or (ii) in connection with any litigation or dispute involving
the Agent or any transfer or other disposition by the Agent or the Lenders, as
the case may be, of any of the Lender Obligations; PROVIDED that information
disclosed pursuant to this provision shall be so disclosed subject to such
procedures as are reasonably calculated to maintain the confidentiality thereof.
Section 14.7 RELIANCE ON REPRESENTATIONS AND ACTIONS OF AMERICAN SKI.
The Borrowers hereby appoint American Ski as the Borrowers' agent to execute,
deliver and perform, on behalf of the Borrowers, any and all notices,
certificates, documents and actions to be executed, delivered or performed
hereunder or under any of the other Lender Agreements, and the Borrowers hereby
agree that the Agent and the Lenders may rely upon any representation, warranty,
certificate, notice, document or telephone request which purports to be executed
or made or which the Agent or the Lenders in good faith believe to have been
executed or made by American Ski or any of its executive officers, and the
Borrowers hereby
102
further, jointly and severally, agree to indemnify and hold the Agent and the
Lenders harmless for any action, including the making of the Term Loans, the
Revolving Credit Advances or the Swing Line Loans hereunder, and any loss or
expense, taken or incurred by any of them as a result of their good faith
reliance upon any such representation, warranty, certificate, notice, document
or telephone request.
Section 14.8 JOINT AND SEVERAL OBLIGATIONS. All obligations of the
Borrowers hereunder and under the Notes and all other Lender Agreements shall be
joint and several obligations. The Borrowers waive presentment, demand,
protest, notice of acceptance, notice of indebtedness incurred and all other
notices of any kind, all defenses which may be available by virtue of any
valuation, stay, moratorium law or other similar law now or hereafter in effect,
any right to require the marshaling of assets of the Borrowers and their
Restricted Subsidiaries, and all suretyship defenses generally.
Section 14.9 WAIVER OF JURY TRIAL. THE AGENT, THE LENDERS, AMERICAN SKI
AND THE BORROWERS AGREE THAT NONE OF THEM NOR ANY ASSIGNEE OR SUCCESSOR SHALL
(A) SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM OR ANY OTHER
ACTION INVOLVING THE AGENT OR ANY LENDER AS A PARTY BASED UPON OR ARISING OUT
OF, THIS AGREEMENT, THE TERM LOAN NOTES, THE REVOLVING CREDIT NOTES, THE SWING
LINE NOTE, ANY LENDER AGREEMENT, ANY RELATED INSTRUMENTS, ANY COLLATERAL OR THE
DEALINGS OR THE RELATIONSHIP BETWEEN OR AMONG ANY OF THEM, OR (B) SEEK TO
CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT
BE OR HAS NOT BEEN WAIVED. THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY
DISCUSSED BY EACH OF THE AGENT, THE LENDERS, AMERICAN SKI AND THE BORROWERS WITH
THEIR RESPECTIVE COUNSEL, AND THESE PROVISIONS SHALL BE SUBJECT TO NO
EXCEPTIONS. NONE OF THE AGENT, THE LENDERS, AMERICAN SKI OR THE BORROWERS HAVE
AGREED WITH OR REPRESENTED TO ANY OTHER PARTY THAT THE PROVISIONS OF THIS
PARAGRAPH WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.
103
IN WITNESS WHEREOF, American Ski, the Borrowers, the Agent and the Lenders
have caused this Agreement to be executed by their duly authorized officers as
of the date set forth above.
AMERICAN SKIING COMPANY
By: /s/ Xxxxxxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President
ASC EAST, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President
SUNDAY RIVER SKIWAY CORPORATION
By: /s/ Xxxxxxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President
SUNDAY RIVER, LTD.
By: /s/ Xxxxxxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President
PERFECT TURN, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President
SUNDAY RIVER TRANSPORTATION, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President
L.B.O. HOLDING, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President
SUGARBUSH RESORT HOLDINGS, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President
SUGARBUSH LEASING COMPANY
By: /s/ Xxxxxxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President
SUGARBUSH RESTAURANTS, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President
MOUNTAIN WASTEWATER TREATMENT, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President
S-K-I, LTD.
By: /s/ Xxxxxxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President
KILLINGTON, LTD.
By: /s/ Xxxxxxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President
MOUNT SNOW, LTD.
By: /s/ Xxxxxxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President
PICO SKI AREA MANAGEMENT COMPANY
By: /s/ Xxxxxxxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President
RESORTS SOFTWARE SERVICES, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President
KILLINGTON RESTAURANTS, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President
RESORTS TECHNOLOGIES, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President
DOVER RESTAURANTS, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President
SUGARLOAF MOUNTAIN CORPORATION
By: /s/ Xxxxxxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President
MOUNTAINSIDE
By: /s/ Xxxxxxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President
SUGARTECH
By: /s/ Xxxxxxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President
BANKBOSTON, N.A., as Agent
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Director
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xx. Xxxxxxx X. Xxxxxxxx,
Director
DLJ CAPITAL FUNDING, INC.,
as Documentation Agent
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Director
000 Xxxx Xxx., 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xx. Xxxxx Xxxxxx
BANKBOSTON, N.A.
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Director
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xx. Xxxxxxx X. Xxxxxxxx,
Director
DLJ CAPITAL FUNDING, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Director
000 Xxxx Xxx., 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xx. Xxxxx Xxxxxx
NORWEST BANK COLORADO, NATIONAL
ASSOCIATION
By: /s/ Xxxxxx X. Xxxxx
----------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
0000 Xxxxxxxx
Xxxxxx, XX 00000-0000
Telecopier: (000) 000-0000
Attention: Xx. Xxxxxx X. Xxxxx, Vice
President
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By: /s/ Xxx Xxxxx
----------------------------
Name: Xxx Xxxxx
Title: Vice President
000 Xxxxxxx Xxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Mr. Xxx Xxxxx, Vice President
U.S. BANK NATIONAL ASSOCIATION d/b/a
COLORADO NATIONAL BANK
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
000 00xx Xxxxxx
Xxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xx. Xxxxxxx X. Xxxxxxxx, Vice
President
FIRST SECURITY BANK, N.A.
By: /s/ Xxxx xxx Xxxxxxxx
----------------------------
Name: Xxxx xxx Xxxxxxxx
Title: Vice President
15 East 000 Xxxxx, 0xx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Telecopier: (000) 000-0000
Attention: Xx. Xxxx Xxx Xxxxxxxx, Vice
President
FLOATING RATE PORTFOLIO
By: CHANCELLOR LGT SENIOR SECURED
MANAGEMENT, INC., as Attorney in
Fact
By: /s/ Xxxxxxx Xxxxxxxxx
----------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Assistant Vice President
ADDRESS FOR ADMINISTRATIVE NOTICES:
-----------------------------------
Chancellor LGT Asset Management, Inc.
00 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000-0000
Telecopier: (000) 000-0000
Attention: Xx. Xxxxx XxXxxxxx
ADDRESS FOR NOTICES REGARDING AMENDMENT
AND WAIVERS:
---------------------------------------
GT Global Floating Rate Fund, Inc.
c/o Chancellor LGT Senior Secured
Management, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xx. Xxxxx XxXxxxx
KZH HOLDING CORPORATION III
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Authorized Agent
x/x Xxx Xxxxx Xxxxxxxxx Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xx. Xxxxxxxx Xxxxxx
XXXXXXX XXXXX SENIOR FLOATING RATE FUND,
INC.
By: Xxxxxxx Xxxxx Asset Management,
L.P., as Investment Advisor
By: /s/ Xxxxxx Xxxxxxxx
----------------------------
Name: Xxxxxx Xxxxxxxx
Title: Authorized Signatory
000 Xxxxxxxx Xxxx Xxxx, Xxxx 0X
Xxxxxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xx. Xxxx Xxxxxxxx
XXX XXXXXX AMERICAN CAPITAL PRIME RATE
INCOME TRUST
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Sr. Vice President & Director
c/o Xxx Xxxxxx American Capital
Xxx Xxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xx. Xxxxxxx X. Xxxxxxx
CONTINENTAL ASSURANCE COMPANY
SEPARATE ACCOUNT (E)
By: TCW Asset Management Company, as
Attorney in Fact
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000-0000
Telecopier: (000) 000-0000
Attention: Xx. Xxxxxx X. Xxxxxxxx, Vice
President
