FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE (the "Supplemental Indenture"), dated as
of November 24, 2004, is entered into by and between American Skiing Company, a
Delaware corporation (the "Company"), and Oak Hill Capital Partners, L.P., a
Delaware limited partnership, as trustee (the "Trustee").
WHEREAS, the Company and the Trustee are parties to that certain Indenture,
dated as of August 31, 2001 (the "Indenture"), pursuant to which the Company's
11.3025% Convertible Subordinated Notes due 2007 (the "Notes") were issued.
Capitalized terms used but not defined herein shall have the same meanings
ascribed to such terms in the Indenture;
WHEREAS, Section 11.02 of the Indenture provides that the Company and the
Trustee may make certain amendments to the Indenture with the consent of each
Holder;
WHEREAS, each Holder has given and, as of the date hereof, has not
withdrawn its consent, in a form attached hereto as Exhibit A, to the amendments
to the Indenture set forth below (the "Amendments"); and
WHEREAS, the execution of this Supplemental Indenture by the parties hereto
is in all respects authorized by the provisions of the Indenture, and all things
necessary to make this Supplemental Indenture a valid agreement of the Company
and the Trustee in accordance with its terms have been done.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the Company
and the Trustee mutually covenant and agree as follows:
1. Effect. This Supplemental Indenture shall become effective upon its
execution and delivery by the parties hereto.
2. Amendments.
The Indenture is hereby amended as follows:
(a) The Stated Maturity of the Accreted Value of the Notes is hereby
extended to May 24, 2012 (the period of such extension, the "Extension
Period"). The term "August 28, 2007" in all places in the Indenture, all
exhibits thereto and the Notes is hereby deleted and replaced by "May 24,
2012".
(b) The term "11.3025% Convertible Subordinated Notes due 2007" in all
places in the Indenture, all exhibits thereto and the Notes is hereby
deleted and replaced by "11.3025% Convertible Subordinated Notes due 2012".
(c) For purposes of Section 3.07 of the Indenture and Paragraph 5 of
the Notes, it is agreed that the Notes will be subject to redemption at the
option of the Company, in whole or in part, during the Extension Period in
accordance with terms of the Indenture and Notes and that the redemption
price shall be 100% of the Accreted Value thereof plus accrued and unpaid
interest thereon to the applicable redemption date.
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(d) For purposes of Section 4.07 of the Indenture and Paragraph 6 of
the Notes, it is agreed that if a Change of Control occurs during the
Extension Period, the Company will be obligated to offer to purchase the
Notes at a purchase price equal to 100% of the Accreted Value thereof plus
accrued and unpaid interest thereon to the Purchase Date in accordance with
Section 4.07 of the Indenture and Paragraph 6 of the Notes.
(e) In order to correct a typographical error, all references to
"Section 5.07" in Section 8.01(c) are hereby amended to read "Section
4.07."
3. Waiver. The Trustee hereby waives any requirement under the Indenture
for the Company to deliver an Officers' Certificate, certificate or opinion to
it in connection with the execution and delivery of this Supplemental Indenture.
4. Senior Debt. For the avoidance of doubt, it is understood that any
Indebtedness or other obligation of the Company that, by its terms, expressly
provides that such Indebtedness or obligation shall be pari passu or
subordinated in right of payment to the Notes shall not be deemed to be Senior
Debt under the Indenture.
5. Governing Law. THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN
THIS SUPPLEMENTAL INDENTURE, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS
THEREOF.
6. Counterparts and Facsimile Signatures. This Supplemental Indenture may
be executed by manual or facsimile signature in any number of counterparts and
by the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
7. Effect on Indenture. Upon its execution, this Supplemental Indenture
shall become effective. This Supplemental Indenture shall form a part of the
Indenture for all purposes, and every Holder of Notes heretofore or hereafter
authenticated and delivered shall be bound hereby. Except as expressly set forth
herein, the Indenture is in all respects ratified and confirmed and all the
terms, conditions and provisions thereof shall remain in full force and effect,
including with respect to this Supplemental Indenture.
8. Effect of Headings. The Article and Section headings herein are for
convenience only and shall not affect the construction hereof.
9. Successors. All agreements of the Company in this Supplemental Indenture
shall bind its successor. All agreements of the Trustee in this Supplemental
Indenture shall bind its successor.
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IN WITNESS WHEREOF, the parties have executed this
Supplemental Indenture as of the date first written above.
AMERICAN SKIING COMPANY
By: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇, ▇▇
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Name ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇, ▇▇
Title: Senior Vice President and General
Counsel
OAK HILL CAPITAL PARTNERS, L.P., as Trustee
By: OHCP GenPar, L.P., its general partner
By: OHCP MGP, LLC, its general partner
By: /s/ ▇▇▇▇▇ ▇ ▇▇▇▇
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Name: ▇▇▇▇▇ ▇ ▇▇▇▇
Title: Vice President
