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EXHIBIT 4.2
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Supplemental Indenture
No. 3
to
Indenture dated as of March 18, 1997
Re:
Up to $200,000,000 12 1/2% Senior Notes due 2007
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This SUPPLEMENTAL INDENTURE NO. 3 to INDENTURE (the
"Supplemental Indenture") is entered into among Booth Creek Ski Holdings, Inc.,
a Delaware corporation (the "Company"), LMRC Holding Corp., a Delaware
corporation ("LMRC"), Loon Mountain Recreation Corporation, a New Hampshire
corporation ("Loon Mountain") and Loon Realty Corp., a New Hampshire corporation
("Loon Realty"), and Marine Midland Bank, a New York banking corporation and
trust company (the "Trustee").
RECITALS
WHEREAS, the Company, the Guarantors and the Trustee have
entered into that certain Indenture dated as of March 18, 1997, as amended by
Supplemental Indenture No. 1 dated as of April 25, 1997 and Supplemental
Indenture No. 2 dated as of February 20, 1998 (the "Original Indenture")
providing for the issuance and delivery by the Company of its 12 1/2% Senior
Notes due 2007;
WHEREAS, the Company has entered into certain financing and
related transactions (the "Transactions") which will benefit the Company and its
Subsidiaries; and
WHEREAS, it is a requirement of the Transactions that the
Restricted Subsidiaries of the Company guarantee the obligations of the Company
under the Indenture; and
WHEREAS, LMRC, Loon Mountain and Loon Realty have become
Restricted Subsidiaries of the Company as of the date hereof; and
WHEREAS, the Boards of Directors of the Company, LMRC, Loon
Mountain and Loon Realty have determined that it is in the best interests of the
Company to make LMRC, Loon Mountain and Loon Realty guarantors of the
obligations of the Company under the Indenture; and
WHEREAS, Article 10 of the Indenture provides for the terms
and conditions of the guarantee of the obligations of the Company under the
Indenture by the Restricted Subsidiaries of the Company.
NOW THEREFORE, in consideration of the mutual agreements
contained herein and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as follows
for the benefit of
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each other party and for the equal and ratable benefit of the Holders of the
Company's 12% Senior Notes due 2007:
Section 1. GUARANTEE.
For value received, each of LMRC, Loon Mountain and Loon
Realty hereby agrees to become a party to the Indenture as a Guarantor under and
pursuant to Article 10 of the Indenture and to jointly and severally
unconditionally guarantee to each Holder and the Trustee (a) the due and
punctual payment of the principal of, and premium, if any, and interest on each
Note, when and as the same shall become due and payable, whether at maturity, by
acceleration or otherwise, the due and punctual payment of interest (including
Additional Interest) on the overdue principal of, and premium, if any, and
interest, and the due and punctual performance of all other obligations of the
Company to the Holders or the Trustee, all in accordance with the terms set
forth in such Note and Article 10 of the Indenture, and (b) in case of any
extension of time of payment or renewal of any Notes or any of such other
Obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. Each of LMRC, Loon Mountain and Loon
Realty further agrees that its obligations under Article 10 of the Indenture
shall be absolute and unconditional, irrespective of, and shall be unaffected
by, any invalidity, irregularity or unenforceability of any such Note or the
Indenture, any failure to enforce the provisions of any such Note or the
Indenture, any waiver, modification or indulgence granted to the Company with
respect thereto by the Holder of such Note or the Trustee, or any other
circumstances which may otherwise constitute a legal or equitable discharge of a
surety or such Guarantor.
Section 2. MISCELLANEOUS.
2.1. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO
SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE.
2.2. Confirmation of the Original Indenture. Except as amended
hereby, the Original Indenture shall remain in full
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force and effect and is hereby ratified and confirmed in all respects.
2.3. Multiple Counterparts. The parties may sign multiple
counterparts of this Supplemental Indenture. Each signed counterpart shall be
deemed an original, but all of them together represent one and the same
agreement.
2.4. Separability. Each provision of this Supplemental
Indenture shall be considered separable and if for any reason any provision
which is not essential to the effectuation of the basic purpose of this
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
2.5. Headings. The captions of the various section headings
of this Supplemental Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof, and shall in no way modify or
restrict any of the terms or provisions hereof.
2.6. The Trustee. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Company and the Guarantors.
2.7. Definitions. All terms defined in the Indenture shall
have the same meaning in this Supplemental Indenture unless otherwise defined
herein.
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IN WITNESS WHEREOF, the parties hereto caused this
Supplemental Indenture to be duly executed as of this 26th day of February,
1998.
BOOTH CREEK SKI HOLDINGS, INC.
LMRC HOLDING CORP.
LOON MOUNTAIN RECREATION CORPORATION
LOON REALTY CORP.
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Executive
Vice President, Finance
MARINE MIDLAND BANK, as Trustee
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President