Exhibit 10.67
FIRST SUPPLEMENTAL INDENTURE (the "Supplemental Indenture"), dated as
of November 12, 1997, between ASC East, Inc. (formerly American Skiing
Company), a Maine corporation (the "Company"), the Guarantors listed on the
signature pages hereof (the "Guarantors") and United States Trust Company
of New York, a New York banking corporation, as trustee under the Indenture
referred to below (the "Trustee").
W I T N E S S E T H:
WHEREAS, pursuant to the Indenture (the "Original Indenture"), dated
as of June 28, 1996 among the Company, the Guarantors listed therein and the
Trustee, the Company duly issued its 12% Senior Subordinated Notes Due 2006
(the "Securities"), in the aggregate principal amount of $120 million;
WHEREAS, in accordance with the Indenture, the Company has obtained
the written consent of the Holders of at least a majority in principal amount
of the then outstanding Securities to certain amendments to the Indenture as
set forth in this Supplemental Indenture.
WHEREAS, pursuant to Section 9.02 of the Indenture, the Company and
the Guarantors, when authorized by resolution of their respective Boards of
Directors, and the Trustee together, with the written consent of the Holders
of at least a majority in aggregate principal amount of the Securities then
outstanding, are authorized to amend or supplement the Indenture as set forth
in this Supplemental Indenture.
WHEREAS, all conditions and requirements necessary to make this
Supplemental Indenture a valid, binding and legal instrument in accordance
with its terms have been performed and fulfilled and the execution and
delivery hereof have been in all respects duly authorized by all necessary
parties; and
WHEREAS, in accordance with Section 9.02 of the Indenture, the
Company, each of the Guarantors and the Trustee desire and have agreed to
execute and deliver this Supplemental Indenture in order to amend the
Indenture as herein provided.
NOW, THEREFORE, for and in consideration of the premises, it is
mutually covenanted and agreed for the benefit of all Holders of the Securities
as follows:
SECTION 1. (a) (i) The definition of "Permitted Holders" in Section
1.01 is hereby amended by deleting the definition in its entirety and
substituting the following therefor:
"Permitted Holders" means (a) Xxxxxx X. Xxxxx (or, in the event of his
incompetence or death, his estate and his estate's heirs, executor,
administrator, committee or other representative (collectively, "Heirs")), (b)
any Person in which Xxxxxx X. Xxxxx and his Heirs, directly or indirectly, have
an 80% controlling interest, or (c) American Skiing Company
a Maine corporation ("Holdings"), provided that, unless Holdings satisfies
the provisions of clause (b) of this definition, then (i) Holdings shall have
consummated an initial public offering of its common stock, par value $0.01
per share ("Holdings Common Stock"), generating gross proceeds of at least
$200 million on or prior to December 31, 1997 and (ii) no Person, other than
Xxxxxx X. Xxxxx and his Heirs, shall have acquired, directly or indirectly,
more than 35% of the voting power of all outstanding Holdings Common stock
and Holdings Class A Common Stock, $0.1 par value per share, voting together
as a single class.
SECTION 2. The Trustee accepts this Supplemental Indenture and agrees
to execute the trust created by the Indenture as hereby supplemented, but
only upon the terms and conditions set forth in the Indenture, including the
terms and provisions defining and limiting the liabilities and
responsibilities of the Trustee, which terms and provisions shall in like
manner define and limit its liabilities and responsibilities in the
performance of the trust created by the Indenture as hereby supplemented.
SECTION 3. The Indenture, supplemented as hereinabove set forth, is
in all respects ratified and confirmed, and the terms and conditions thereof,
supplemented as hereinabove set forth, shall be and remain in full force and
effect.
SECTION 4. The recitals contained in this Supplemental Indenture
shall be taken as the statements made solely by the Company and the
Guarantors, and the Trustee shall have no liability or responsibility for
their correctness, and without limiting the generality of the foregoing, the
Trustee shall not be responsible in any manner whatsoever for or with respect
to (i) the validity or sufficiency of this Supplemental Indenture or any of
the terms or provisions hereof, (ii) the proper authorization hereof by the
Company and the Guarantors by corporate action or otherwise, (iii) the due
execution hereof by the Comapny and the Guarantors or (iv) the consequences
(direct or indirect and whether deliberate or inadvertent) of any amendment
herein provided for, and the Trustee makes no representation with respect to
any such matters.
SECTION 5. This Supplemental Indenture shall become effective upon
the execution and delivery hereof by the Company and the Trustee.
SECTION 6. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 7. This Supplemental Indenture may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
SECTION 8. Capitalized terms not otherwise defined herein are defined
as set forth in the Indenture.
2
IN WITNESS WHEREOF. the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
ASC EAST, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President and
Chief Administrative Officer
SUNDAY RIVER SKIWAY CORPORATION
By: /s/ Xxxxxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President and
Chief Administrative Officer
SUNDAY RIVER LTD.
By: /s/ Xxxxxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President and
Chief Administrative Officer
PERFECT TURN, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President and
Chief Administrative Officer
3
LBO HOLDINGS, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President and
Chief Administrative Officer
SUNDAY RIVER TRANSPORTATION. INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President and
Chief Administrative Officer
SUGARBUSH RESORT HOLDINGS, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President and
Chief Administrative Officer
SUGARBUSH LEASING COMPANY
By: /s/ Xxxxxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President and
Chief Administrative Officer
4
SUGARBUSH RESTAURANTS, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President and
Chief Administrative Officer
CRANMORE, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President and
Chief Administrative Officer
MOUNTAIN WASTEWATER TREATMENT, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President and
Chief Administrative Officer
LBO HOTEL CO.
By: /s/ Xxxxxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President and
Chief Administrative Officer
5
S-K-I LIMITED
By: /s/ Xxxxxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President and
Chief Administrative Officer
KILLINGTON LTD.
By: /s/ Xxxxxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President and
Chief Administrative Officer
MOUNT SNOW LTD.
By: /s/ Xxxxxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President and
Chief Administrative Officer
WATERVILLE VALLEY SKI AREA, LTD.
By: /s/ Xxxxxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President and
Chief Administrative Officer
6
SUGARLOAF MOUNTAIN CORPORATION
By: /s/ Xxxxxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President and
Chief Administrative Officer
KILLINGTON RESTAURANTS, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President and
Chief Administrative Officer
DOVER RESTAURANTS, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President and
Chief Administrative Officer
RESORTS TECHNOLOGIES, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President and
Chief Administrative Officer
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RESORT SOFTWARE SERVICES, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President and
Chief Administrative Officer
MOUNTAINSIDE
By: /s/ Xxxxxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President and
Chief Administrative Officer
SUGARTECH
By: /s/ Xxxxxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President and
Chief Administrative Officer
DEERFIELD OPERATING COMPANY
By: /s/ Xxxxxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President and
Chief Administrative Officer
8
PICO SKI AREA MANAGEMENT COMPANY
By: /s/ Xxxxxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President and
Chief Administrative Officer
UNITED STATES TRUST COMPANY OF NEW
YORK, Trustee
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President