SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): October 6, 1999
AMERICAN SKIING COMPANY
(Exact name of Registrant as specified in its charter)
Delaware 1-13507 04-3373730
(State or other (Commission (I.R.S. Employer
jurisdiction of File Number) Identification No.)
incorporation)
P.O. Box 450, Bethel, Maine 04217
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (207) 824-8100
Former name or former address, if changed since last report: Not Applicable
<PAGE>
Item 5. Other Events.
(a) Merger with ASC East, Inc., and ASC West, Inc.
On October 6, 1999, American Skiing Company (NYSE:SKI) merged with two of
its wholly-owned subsidiaries, ASC East, Inc. and ASC West, Inc. (the "East/West
Merger"). American Skiing Company was the surviving corporation in the East/West
merger. In conjunction with the East/West Merger, American Skiing Company
entered into a Fourth Supplemental Indenture dated as of October 6, 1999, with
respect to ASC East, Inc.'s $120 million 12% Senior Subordinated Notes (the "12%
Notes"). Under the terms of the Fourth Supplemental Indenture, American Skiing
Company, as successor by merger to ASC East, Inc., became the primary obligor
under the 12% Notes. Certain subsidiaries of American Skiing Company also joined
as guarantors of the 12% Notes.
(b) Reincorporation in Delaware.
On October 7, 1999, the shareholders of American Skiing Company approved
the reincorporation of American Skiing Company in Delaware. Following that
approval, on October 12, 1999, American Skiing Company was merged with and into
its wholly-owned subsidiary, ASC Delaware, Inc. (the "Delaware
Reincorporation"). The surviving entity, also named American Skiing Company, is
a Delaware corporation with a Board of Directors, shareholders and capital
structure identical to that of the former American Skiing Company, which was a
Maine corporation. Certain changes resulting from the reincorporation are
described more fully in the Company's Proxy Statement to Shareholders dated
September 8, 1999, on file with the Securities and Exchange Commission.
Following the Delaware Reincorporation, the Common Stock, par value $.01
per share of American Skiing Company, a Delaware corporation, is deemed to be
registered under Section 12(b) of the Securities Exchange Act of 1934 by virtue
of the operation of Rule 12g-3 of the Securities and Exchange Commission.
Item 7. Exhibits.
(c) Exhibits.
2.1. Articles of Merger for American Skiing Company, ASC
East, Inc., and ASC West, Inc., as filed with the
Maine Secretary of State on October 5, 1999 with Plan
of Merger attached thereto.
2.2. Articles of Merger for American Skiing Company and
ASC Delaware, Inc., as filed with each of the Maine
Secretary of State and the Delaware Secretary of
State on October 12, 1999 with Plan of Merger
attached thereto.
4.1 Indenture dated as of June 28, 1996 among ASC East,
Inc., certain of its subsidiaries and United States
Trust Company of New York, relating to Series A and
Series B 12% Senior Subordinated Notes Due 2006
(incorporated by reference to Exhibit 4.1 to ASC
East's Registration Statement on Form S-4,
Registration No. 333-9763).
4.2 First Supplemental Indenture dated as of November 12,
1997 among ASC East, Inc., its subsidiaries party
thereto, and United States Trust Company of New York
as Trustee (incorporated by reference to Exhibit 10.3
to the Company's quarterly report on Form 10-Q for
the quarter ended October 25, 1998).
4.3 Second Supplemental Indenture dated as of September
4, 1998 among ASC East, Inc., its subsidiaries party
thereto, and United States Trust Company of New York
as Trustee.
4.4 Subsidiary Guaranty dated as of September 4, 1998
from certain subsidiaries of the Company and ASC
East, Inc., guaranteeing the obligations of ASC East,
Inc. under the Indenture dated as of June 28,
1996, as supplemented.
4.5 Third Supplemental Indenture dated as of August 6,
1999 among ASC East, Inc., its subsidiaries party
thereto, and United States Trust Company of New York
as Trustee
4.6 Fourth Supplemental Indenture dated as of October 6,
1999, among American Skiing Company, its subsidiaries
party thereto, and United States Trust Company of New
York as Trustee.
4.7 Subsidiary Guaranty dated as of October 6, 1999 from
the following subsidiaries of American Skiing
Company: ASC Utah, Blunder Bay Development Co., ASC
Leasing, Inc., Orlando Resort Corporation, ASC
Transportation, Inc., Steamboat Development
Corporation, Steamboat Ski & Resort Corporation,
Heavenly Ski & Resort Corporation, Heavenly
Corporation and Heavenly Valley Limited Partnership,
guaranteeing the obligations of American Skiing
Company under the Indenture dated as of June 28,
1996, as supplemented.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
AMERICAN SKIING COMPANY,
a Delaware Corporation
Date: October 12, 1999 /s/ Mark J. Miller
-----------------------------------------
Name: Mark J. Miller
Title: Senior Vice President
Chief Financial Officer
(Principal Financial and
Accounting Officer)
Date: October 12, 1999 /s/ Christopher E. Howard
------------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
(Duly Authorized Officer)
EXHIBIT INDEX
Exhibit
No. Description
2.1. Articles of Merger for American Skiing Company, ASC East, Inc., and ASC
West, Inc., as filed with the Maine Secretary of State on October 5, 1999
with Plan of Merger attached thereto.
2.2. Articles of Merger for American Skiing Company and ASC Delaware, Inc., as
filed with each of the Maine Secretary of State and the Delaware Secretary
of State on October 12, 1999 with Plan of Merger attached thereto.
4.1 Indenture dated as of June 28, 1996 among ASC East, Inc., certain of its
subsidiaries and United States Trust Company of New York, relating to
Series A and Series B 12% Senior Subordinated Notes Due 2006 (incorporated
by reference to Exhibit 4.1 to ASC East's Registration Statement on Form
S-4, Registration No. 333-9763).
4.2 First Supplemental Indenture dated as of November 12, 1997 among ASC East,
Inc., its subsidiaries party thereto, and United States Trust Company of
New York as Trustee (incorporated by reference to Exhibit 10.3 to the
Company's quarterly report on Form 10-Q for the quarter ended October 25,
1998).
4.3 Second Supplemental Indenture dated as of September 4, 1998 among ASC East,
Inc., its subsidiaries party thereto, and United States Trust Company of
New York as Trustee.
4.4 Subsidiary Guaranty dated as of September 4, 1998 from certain subsidiaries
of the Company and ASC East, Inc., guaranteeing the obligations of ASC
East, Inc. under the Indenture dated as of June 28, 1996, as supplemented.
4.5 Third Supplemental Indenture dated as of August 6, 1999 among ASC East,
Inc., its subsidiaries party thereto, and United States Trust Company of
New York as Trustee
4.6 Fourth Supplemental Indenture dated as of October 6, 1999, among American
Skiing Company, its subsidiaries party thereto, and United States Trust
Company of New York as Trustee.
4.7 Subsidiary Guaranty dated as of October 6, 1999 from the following
subsidiaries of American Skiing Company: ASC Utah, Blunder Bay Development
Co., ASC Leasing, Inc., Orlando Resort Corporation, ASC Transportation,
Inc., Steamboat Development Corporation, Steamboat Ski & Resort
Corporation, Heavenly Ski & Resort Corporation, Heavenly Corporation and
Heavenly Valley Limited Partnership, guaranteeing the obligations of
American Skiing Company under the Indenture dated as of June 28,
1996, as supplemented.
---------------------------------
DOMESTIC Filing Fee: $80.00
BUSINESS CORPORATION
STATE OF MAINE
ARTICLES OF MERGER _________________________________
Deputy Secretary of State
ASC East, Inc.
---------------------------------
- -------------------------------------- ---------------------------------
(Subsidiary, A Maine Corporation)
and True Copy When Attested by Signature
ASC West, Inc., (Subsidiary, a Maine
Corporation)
INTO
American Skiing Company ______________________________
Deputy Secretary of State
- ---------------------------------------
(Parent, A Maine Corporation)
---------------------------------
Pursuant to 13-A MRSA ss.904, the undersigned corporation adopts the following
Articles of Merger:
FIRST: American Skiing Company herein referred to as the parent
corporation, is a corporation organized under the laws of the
State of Maine and owning at least 90% of the outstanding
shares of each class of ASC East, Inc. and ASC West, Inc.,
each a corporation organized under the laws of the State of
Maine and herein referred to as the subsidiary corporation.
SECOND: The plan of merger set forth in Exhibit A attached hereto was
approved by the Board of Directors of the undersigned parent
corporation as the surviving corporation in the manner
prescribed by the Maine Business Corporation Act.
THIRD: The number of outstanding shares of each class of the
participating subsidiary corporation and the number of
shares of each class owned by the parent, surviving
corporation are as follows: Name of Subsidiary Number of
Shares Designation Number and Per Cent of Shares Owned
Corporation Outstanding of Class by Surviving Parent
Name of Number of Shares Designation Number and Per Cent
Subsidiary Outstanding of Class of Shares Owned by
Corporation Surviving Parent
- -------------- ---------------- ------------ --------------------
ASC East, Inc. 939,168 Common 939,168 Shares, 100%
ASC West, Inc. 100 Common 100 Shares, 100%
FOURTH The date of the mailing to each shareholder of the
subsidiary corporation of a copy of the plan of merger is
October 5, 1999.
FIFTH Effective date of the merger (if other than date of filing
of Articles) is October 6, 1999 at 12:01 a.m.
(Not to exceed 60 days from date of filing of the Articles)
SIXTH: The address of the registered office of the surviving
corporation in the State of Maine is Sunday River Access
Road, Newry, Maine 04261.
The address of the registered office of the subsidiary
corporation in the State of Maine is Sunday River Access Road,
Newry, Maine 04261.
DATED: October 5, 1999 American Skiing Company
------------------------------------
(surviving corporation)
*By /s/ Christopher E. Howard
---------------------------------
(signature)
Christopher E. Howard, Clerk
-----------------------------
(type or print name and capacity)
*By
---------------------------------
(signature)
---------------------------------
(type or print name and capacity)
Note: 13-A MRSA ss.904 does not allow amendments to the Articles of
Incorporation.
- --------------------------------------------------------------------------------
*This documents MUST be signed by (1) the Clerk OR (2) the President or a
vice-president and the Secretary or an assistant secretary, or such other
officer as the bylaws may designate as a 2nd certifying officer OR (3) if there
are no such officers, then a majority of Directors or such directors as may be
designated by a majority of directors then in office OR (4) if there are not
such directors, then the Holders, or such of them as may be designated by the
holders, of record of a majority of all outstanding shares entitled to vote
thereon OR (5) the Holders of all of the outstanding shares of the corporation.
SUBMIT COMPLETED FORMS TO: CORPORATE EXAMINING SECTION, SECRETARY OF STATE, 101
STATE HOUSE STATION, AUGUSTA, ME 04333-0101 TEL: (207) 287-4195
<PAGE>
EXHIBIT A
PLAN OF MERGER
This Plan of Merger is adopted this 5th day of October, 1999, by
AMERICAN SKIING COMPANY, a Maine corporation (hereinafter sometimes referred to
as the "Parent Corporation" or "Surviving Corporation"), and relates to the
merger of ASC East, Inc., a Maine corporation (hereinafter sometimes referred to
as "ASC East") and ASC West, Inc., a Maine corporation (hereinafter sometimes
referred to as "ASC West") into Parent Corporation.
W I T N E S S E T H :
WHEREAS, Parent Corporation owns all of the outstanding stock of ASC
East and ASC West (hereinafter together sometimes referred to as "Subsidiary
Corporations"); and
WHEREAS, it is desired that Subsidiary Corporations be merged into Parent
Corporation;
NOW, THEREFORE, Parent Corporation does hereby merge Subsidiary
Corporations into itself, as of the effective time hereinafter provided, in
accordance with Sections 904 and 905 of the Maine Business Corporation Act, as
amended (the "Act"), 13-A M.R.S.A. ss.ss. 904 and 905, with the effect provided
in the Act, including without limitation Section 905, of the Act, 13-A M.R.S.A.
ss. 905, upon the following terms and conditions:
1. Parent Corporation shall be the surviving corporation in the merger.
2. The merger shall become effective at 12:01 a.m. on October 6, 1999
(such time being hereinafter called the "Effective Time of the Merger"). This
Plan of Merger shall be submitted to the Board of Directors of the Parent
Corporation for its approval in accordance with Section 904 of the Act.
3. Each share of (i) Common Stock, par value $.01 per share, (ii) Class
A Common Stock, par value $.01 per share, (iii) 10.5% Repriced Convertible
Exchangeable Preferred Stock, par value $.01 per share, and (iv) 8.50% Series B
Convertible Participating Preferred Stock, par value $.01 per share, of the
Parent Corporation outstanding immediately prior to the Effective Time of the
Merger shall continue to be outstanding thereafter and shall not be affected by
the merger. Neither the Articles of Incorporation, as amended, the Bylaws, as
amended, the terms of office of the officers and directors, nor any other matter
pertaining to the affairs of the Parent Corporation shall be affected by the
merger. The Parent Corporation, as the holder of all outstanding shares of the
Subsidiary Corporations, hereby waives notice of the merger and the right to
receive a copy of this Plan of Merger so as to permit the immediate
effectiveness of the merger as contemplated by Section 904(1)(C) of the Act.
4. At the Effective Time of the Merger, each share of stock of the
Subsidiary Corporations issued and outstanding immediately prior to the
Effective Time of the Merger shall be cancelled and of no further force or
effect, and the share certificates therefor held by Parent Corporation shall be
surrendered for cancellation.
5. From and after the Effective Time of the Merger, the Subsidiary
Corporations shall cease their separate existence; all of the properties (real,
personal and mixed), rights, immunities, privileges, franchises, choses in
action and all other assets of the Subsidiary Corporations shall vest in the
Surviving Corporation without further act or deed; and the Surviving Corporation
shall assume all the liabilities, duties and obligations of the Subsidiary
Corporations.
6. Parent Corporation expressly reserves the right to abandon the
merger, at any time prior to the Effective Time of the Merger, in the absolute
discretion of its directors.
IN WITNESS WHEREOF, Parent Corporation has caused this Plan of Merger
to be signed by its duly authorized officer.
AMERICAN SKIING COMPANY
By:/s/ Christopher E. Howard
-----------------------------
Christopher E. Howard
Executive Vice President
---------------------------------
Filing Fee: $80.00
BUSINESS CORPORATION (See Sec.1401 sub-Sec.19)
STATE OF MAINE
(Merger of Domestic and Foreign Corporation)
ARTICLES OF MERGER _________________________________
Deputy Secretary of State
American Skiing Company
---------------------------------
- -------------------------------------- ---------------------------------
A corportion organized under the laws of
Maine
-------
INTO True Copy When Attested by Signature
ASC Delaware, Inc.
- --------------------------------------
A corporation organized under the laws of
Delaware
---------- ______________________________
Deputy Secretary of State
Pursuant to 13-A MRSA Sec. 906, the preceding
corporations adopt these Articles of Merger:
---------------------------------
First: The laws of the State(s) of Delaware, under which the
foreign corporation(s) is (are) organized, permit such merger.
Second: The name of the surviving corporation is ASC Delaware, Inc.
(the name of which is to be changed to American Skiing Company);
and it is to be governed by the laws of the the State of
Delaware.
Third: The plan of merger is set forth in Exhibit A attached
hereto and made a part hereof.
Fourth: As to each participating domestic corporation, the
shareholders of which voted on such plan of merger, the number of
shares outstanding and the number of shares entitled to vote on
such plan, and the number of such shares voted for and against
the plan, are as follows:
Name of Number of Number of NUMBER NUMBER
Corporation Shares Shares Entitled Voted For Voted Against
Outstanding to Vote
- -------------- ------------- ---------------- ---------- -------------
American Skiing 30,473,399 30,323,399 22,376,725 3,216,624
Company
ASD Delaware, Inc. 100 100 100 0
FIFTH: If the shares of any class were entitled to vote as a class,
the designation and number of the outstanding shares of each such
class, and the number of shares of each such class voted for and
against the plan, are as follows:
Name of Designation Number of Shares NUMBER NUMBER
Corporation of Class Outstanding Voted For Voted Against
- ----------- ----------- ---------------- --------- -------------
(Include the following paragraph if the merger was authorized without the vote
of the shareholders of the surviving corporation. Omit if not applicable
SIXTH: The plan of merger was adopted by the participating
corporation which is to become the surviving corporation in the
merger without any vote of its shareholders, pursuant to section
902, subsection 5. The number of shares of each class outstanding
immediately prior to the effective date of the merger, and the
number of shares of each class to be issued or delivered pursuant
to the plan of merger of the surviving corporation are set forth
as follows:
Desingation Number of Shares Outstanding Number of Shares to Be Issued
of Class Immediately Prior to Effective Or Delivered Pursuant to the
Date of Merger Merger
- ----------- ------------------------------ -----------------------------
SEVENTH: The address of the registed office of the surviving
corporation in the State of Maine is*
Sunday River Access Road, Newry, Maine 04261
-----------------------------------------------------------------
(street, city, state and zip code)
The address of the registered office of hte merged
corporation in the State of Maine is*
Sunday River Access Road, Newry, Maine 04261
-----------------------------------------------------------------
(street, city, state and zip code)
EIGHTH: Effective date of the merger (if other than date of filing of
Articles) is
-----------------------------------------------------------------
(Not to exceed 60 days from date of filing of the Articles)
DATED: October 12, 1999
American Skiing Company
---------------------------------------
(participating domestic corporation)
MUST BE COMPLETED FOR VOTE *By /s/ Christopher E. Howard
OF SHAREHOLDERS ---------------------------------
I certify that I have custody of the (signature)
minutes showing the above action Christopher E. Howard, Clerk
the shareholders. -----------------------------
(type or print name and capacity)
American Skiing Company
- ---------------------------------- *By
(name of corporation) ---------------------------------
(signature)
/s/ Christopher E. Howard
- ---------------------------------- ---------------------------------
(signature of clerk, secretary or (type or print name and capacity)
asst. secretary)
DATED October 12, 1999
-----------------------------
MUST BE COMPLETED FOR VOTE *By
OF SHAREHOLDERS ---------------------------------
I certify that I have custody of the (signature)
minutes showing the above action by
the shareholders. -----------------------------
(type or print name and capacity)
- ---------------------------------- *By
(name of corporation) ---------------------------------
(signature)
- ---------------------------------- ---------------------------------
(signature of clerk, secretary or (type or print name and capacity)
asst. secretary)
NOTE: If a foreign corporation is the survivor of this merger, see Sec. 906.4
and Sec. 908.3 as to whether Form MBCA-10Ma is required.
*Give address of registered office in Maine. If the corporation does not have a
registered office in Maine, the address given should be the principal or
registered office wherever located.
- --------------------------------------------------------------------------------
*This documents MUST be signed by (1) the Clerk OR (2) the President or a
vice-president and the Secretary or an assistant secretary, or such other
officer as the bylaws may designate as a 2nd certifying officer OR (3) if there
are no such officers, then a majority of Directors or such directors as may be
designated by a majority of directors then in office OR (4) if there are not
such directors, then the Holders, or such of them as may be designated by the
holders, of record of a majority of all outstanding shares entitled to vote
thereon OR (5) the Holders of all of the outstanding shares of the corporation.
SUBMIT COMPLETED FORMS TO: CORPORATE EXAMINING SECTION, SECRETARY OF STATE, 101
STATE HOUSE STATION, AUGUSTA, ME 04333-0101 TEL: (207) 287-4195
<PAGE>
CERTIFICATE OF THE SOLE INCORPORATOR AND SOLE DIRECTOR
OF
ASC DELAWARE, INC.
(a Delaware corporation)
I, FOSTER A. STEWART, JR., the Sole Incorporator and Sole Director of
ASC Delaware, Inc., hereby certify that the Agreement and Plan of Merger to
which this certificate is attached, after having been first duly signed on
behalf of the corporation by the Sole Incorporator and Sole Director under the
corporate seal of said corporation, was duly approved and adopted at a meeting
of the sole stockholder held on October 6, 1999 by the holder of all of the
outstanding stock entitled to vote thereon.
Witness my hand and seal of said ASC Delaware, Inc. this 7th day of
October, 1999.
[S E A L]
/s/ Foster A. Stewart, Jr.
---------------------------------
Sole Incorporator and Sole Director
<PAGE>
AGREEMENT AND PLAN OF MERGER, made this 7th day of October, 1999,
between AMERICAN SKIING COMPANY, a Maine corporation, hereinafter called the
First Company, and ASC DELAWARE, INC., a Delaware corporation, hereinafter
called the Second Company.
WHEREAS, the First Company has authorized capital stock consisting of
100,000,000 shares of Common Stock, par value $.01 per share, 15,000,000 shares
of Class A Common Stock, par value $.01 per share, and 500,000 shares of Serial
Preferred Stock, par value $.01 per share, of which 15,526,243 shares of Common
Stock, par value $.01 per share, 14,760,530 shares of Class A Common Stock, par
value $.01 per share, 36,626 shares of 10.5% Repriced Convertible Exchangeable
Preferred Stock, par value $.01 per share, and 150,000 shares of 8.50% Series B
Convertible Participating Preferred Stock, par value $.01 per share, have been
duly issued and are now outstanding; and
WHEREAS, the Second Company has authorized capital stock consisting of
100,000,000 shares of Common Stock, par value $.01 per share, 15,000,000 shares
of Class A Common Stock, par value $.01 per share, and 500,000 shares of Serial
Preferred Stock, par value $.01 per share, of which 100 shares of Common Stock,
par value $.01 per share, have been duly issued and are now outstanding; and
WHEREAS, the Board of Directors of the First Company and the Second
Company, respectively, deem it advisable and generally to the advantage and
welfare of the two corporate parties and their respective shareholders that the
First Company merge with the Second Company under and pursuant to the provisions
of the Maine Business Corporation Act and of the General Corporation Law of the
State of Delaware; and
WHEREAS, the approvals of the shareholders of the First Company with
respect to the merger of the First Company with and into the Second Company as
required under the Maine Business Corporation Act and the Articles of
Incorporation of the First Company have been obtained.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained and of the mutual benefits hereby provided, it is
agreed by and between the parties hereto as follows:
1. MERGER. The First Company shall be merged into the Second Company on the
Effective Date (as hereinafter defined).
2. EFFECTIVE DATE. This Agreement and Plan of Merger shall become
effective upon the filing of this Agreement and Plan of Merger in the offices of
the Secretaries of State of Maine and Delaware, the time of such effectiveness
being defined herein as the "Effective Date."
3. SURVIVING CORPORATION. The Second Company shall survive the merger
herein contemplated and shall continue to be governed by the laws of the State
of Delaware, but the separate corporate existence of the First Company shall
cease forthwith upon the Effective Date.
4. AUTHORIZED CAPITAL. The authorized capital stock of the Second
Company following the Effective Date shall be as set forth in its Certificate of
Incorporation, as summarized in the second recital paragraph above, unless and
until the same shall be changed in accordance with the laws of the State of
Delaware.
5. CERTIFICATE OF INCORPORATION. The Certificate of Incorporation of
the Second Company shall be the Certificate of Incorporation of the Second
Company following the Effective Date unless and until the same shall be amended
or repealed in accordance with the provisions thereof, which power to amend or
repeal is hereby expressly reserved, and all rights of powers of whatsoever
nature conferred in such Certificate of Incorporation or herein upon any
shareholder or director or officer of the Second Company or upon any other
persons whomsoever are subject to the reserve power. Such Certificate of
Incorporation shall be amended, effective on the Effective Date and without
further action, such that the name of the Second Company shall thenceforth be
American Skiing Company.
6. BYLAWS. The Bylaws of the Second Company as they exist on the
Effective Date shall be the Bylaws of the Second Company following the Effective
Date unless and until the same shall be amended or repealed in accordance with
the provisions thereof.
7. BOARD OF DIRECTORS AND OFFICERS. The members of the Board of
Directors and the officers of the Second Company immediately after the Effective
Date of the merger shall be those persons who were the members of the Board of
Directors and the officers, respectively, of the First Company immediately prior
to the Effective Date of the merger, and such persons shall serve in such
offices, respectively, for the terms provided by law or in the Certificate of
Incorporation or Bylaws, or until their respective successors are elected and
qualified.
8. FURTHER ASSURANCE OF TITLE. If at any time the Second Company shall
consider or be advised that any acknowledgements or assurances in law or other
similar actions are necessary or desirable in order to acknowledge or confirm in
and to the Second Company any right, title or interest of the First Company held
immediately prior to the Effective Date, the First Company and its proper
officers and directors shall and will execute and deliver all such
acknowledgements or assurances in law and do all things necessary or proper to
acknowledge or confirm such right, title or interest in the Second Company as
shall be necessary to carry out the purposes of this Agreement and Plan of
Merger, and the Second Company and the proper officers and directors thereof are
fully authorized to take any and all such action in the name of the First
Company or otherwise.
9. RETIREMENT OF ORGANIZATION STOCK. Forthwith upon the Effective Date,
each of the 100 shares of the Common Stock of the Second Company presently
issued and outstanding shall be retired, and no shares of Common Stock or other
securities of the Second Company shall be issued in respect thereof.
10. CONVERSION OF OUTSTANDING STOCK.
(a) Forthwith upon the Effective Date, each of the issued and
outstanding shares of Common Stock of the First Company and all rights in
respect thereof shall be converted into one fully paid and non-assessable share
of Common Stock of the Second Company, and each certificate nominally
representing shares of Common Stock of the First Company shall for all purposes
be deemed to evidence the ownership of a like number of shares of Common Stock
of the Second Company. The holders of such certificates shall not be required
immediately to surrender the same in exchange for certificates of Common Stock
in the Second Company but, as certificates nominally representing shares of
Common Stock of the First Company are surrendered for transfer, the Second
Company will cause to be issued certificates representing shares of Common Stock
of the Second Company, and, at any time upon surrender by any holder of
certificates nominally representing shares of Common Stock of the First Company,
the Second Company will cause to be issued therefor certificates for a like
number of shares of Common Stock of the Second Company.
(b) Forthwith upon the Effective Date, each of the issued and
outstanding shares of Class A Common Stock of the First Company and all rights
in respect thereof shall be converted into one fully paid and non-assessable
share of Class A Common Stock of the Second Company, and each certificate
nominally representing shares of Class A Common Stock of the First Company shall
for all purposes be deemed to evidence the ownership of a like number of shares
of Class A Common Stock of the Second Company. The holders of such certificates
shall not be required immediately to surrender the same in exchange for
certificates of Class A Common Stock in the Second Company but, as certificates
nominally representing shares of Class A Common Stock of the First Company are
surrendered for transfer, the Second Company will cause to be issued
certificates representing shares of Class A Common Stock of the Second Company,
and, at any time upon surrender by any holder of certificates nominally
representing shares of Class A Common Stock of the First Company, the Second
Company will cause to be issued therefor certificates for a like number of
shares of Class A Common Stock of the Second Company.
(c) Forthwith upon the Effective Date, each of the issued and
outstanding shares of 10.5% Repriced Convertible Exchangeable Preferred Stock of
the First Company and all rights in respect thereof shall be converted into one
fully paid and non-assessable share of 10.5% Repriced Convertible Exchangeable
Preferred Stock of the Second Company, and each certificate nominally
representing shares of 10.5% Repriced Convertible Exchangeable Preferred Stock
of the First Company shall for all purposes be deemed to evidence the ownership
of a like number of shares of 10.5% Repriced Convertible Exchangeable Preferred
Stock of the Second Company. The holders of such certificates shall not be
required immediately to surrender the same in exchange for certificates of 10.5%
Repriced Convertible Exchangeable Preferred Stock in the Second Company but, as
certificates nominally representing shares of 10.5% Repriced Convertible
Exchangeable Preferred Stock of the First Company are surrendered for transfer,
the Second Company will cause to be issued certificates representing shares of
10.5% Repriced Convertible Exchangeable Preferred Stock of the Second Company,
and, at any time upon surrender by any holder of certificates nominally
representing shares of 10.5% Repriced Convertible Exchangeable Preferred Stock
of the First Company, the Second Company will cause to be issued therefor
certificates for a like number of shares of 10.5% Repriced Convertible
Exchangeable Preferred Stock of the Second Company.
(d) Forthwith upon the Effective Date, each of the issued and
outstanding shares of 8.50% Series B Convertible Participating Preferred Stock
of the First Company and all rights in respect thereof shall be converted into
one fully paid and non-assessable share of 8.50% Series B Convertible
Participating Preferred Stock of the Second Company, and each certificate
nominally representing shares of 8.50% Series B Convertible Participating
Preferred Stock of the First Company shall for all purposes be deemed to
evidence the ownership of a like number of shares of 8.50% Series B Convertible
Participating Preferred Stock of the Second Company. The holders of such
certificates shall not be required immediately to surrender the same in exchange
for certificates of 8.50% Series B Convertible Participating Preferred Stock in
the Second Company but, as certificates nominally representing shares of 8.50%
Series B Convertible Participating Preferred Stock of the First Company are
surrendered for transfer, the Second Company will cause to be issued
certificates representing shares of 8.50% Series B Convertible Participating
Preferred Stock of the Second Company, and, at any time upon surrender by any
holder of certificates nominally representing shares of 8.50% Series B
Convertible Participating Preferred Stock of the First Company, the Second
Company will cause to be issued therefor certificates for a like number of
shares of 8.50% Series B Convertible Participating Preferred Stock of the Second
Company.
11. RIGHTS AND LIABILITIES OF SECOND COMPANY. At and after the
Effective Date of the merger, the Second Company shall succeed to and possess,
without further act or deed, all of the estate, rights, privileges, powers and
franchises, both public and private, and all of the property, real, personal and
mixed, of each of the parties hereto; all debts due to the First Company on
whatever account shall be vested in the Second Company; all claims, demands,
property, rights, privileges, powers and franchises and every other interest of
either of the parties hereto shall be as effectively the property of the Second
Company as they were of the respective parties hereto; the title to any real
estate vested by deed or otherwise in the First Company shall not revert or be
in any way impaired by reason of the merger, but shall be vested in the Second
Company; all rights of creditors and all liens upon any property of either of
the parties hereto shall be preserved unimpaired, limited in lien to the
property affected by such lien at the effective time of the merger; all debts,
liabilities and duties of the respective parties hereto shall thenceforth attach
to the Second Company and may be enforced against it to the same extent as if
such debts, liabilities and duties had been incurred or contracted by it; and
the Second Company shall indemnify and hold harmless the officers and directors
of the parties hereto against all such debts, liabilities and duties and against
all claims and demands arising out of the merger.
12. BOOK ENTRIES. The merger contemplated hereby shall be treated as a
pooling of interest and as of the Effective Date entries shall be made upon the
books of the Second Company in accordance with the following:
(a) The assets and liabilities of the First Company shall be
recorded at the amounts at which they are carried on the books of the First
Company immediately prior to the Effective Date with appropriate adjustment to
reflect the retirement of the 100 shares of Common Stock of the Second Company
presently issued and outstanding.
(b) There shall be credited to Capital Account the aggregate
amount of the par value per share of all of the outstanding stock of the Second
Company resulting from the conversion of the outstanding stock of the First
Company.
(c) There shall be credited to Capital Surplus Account an
amount equal to that carried on the Capital Surplus Account of the First Company
immediately prior to the Effective Date.
(d) There shall be credited to Earned Surplus Account an
amount equal to that carried on the Earned Surplus Account of the First Company
immediately prior to the Effective Date.
13. SERVICE OF PROCESS ON SECOND COMPANY. The Second Company agrees
that it may be served with service of process in the State of Maine in any
proceeding for enforcement of any obligation of the First Company as well as for
the enforcement of any obligation of the Second Company arising from the merger,
including any suit or other proceeding to enforce the right of any shareholder
as determined in appraisal proceedings pursuant to the provisions of the Maine
Business Corporation Act.
14. TERMINATION. This Agreement and Plan of Merger may be terminated
and abandoned by action of the Board of Directors of the First Company at any
time prior to the Effective Date, whether before or after approval by the
shareholders of the First Company.
15. PLAN OF REORGANIZATION. This Agreement and Plan of Merger
constitutes a Plan of Reorganization to be carried out in the manner, on the
terms and subject to the conditions herein set forth.
16. EXPENSES AND RIGHTS OF DISSENTING SHAREHOLDERS. The Second Company
shall pay all expenses of carrying this Agreement and Plan of Merger into effect
and of accomplishing the merger, including amounts, if any, to which dissenting
shareholders of the First Company may be entitled by reason of this merger.
<PAGE>
IN WITNESS WHEREOF each of the corporate parties hereto, pursuant to
authority duly granted by the Board of Directors or shareholders, has caused
this Agreement and Plan of Merger to be executed by an authorized officer.
AMERICAN SKIING COMPANY
By: /s/ Christopher E. Howard
-----------------------------
Name: Christopher E. Howard
Title: Executive Vice President
ASC DELAWARE, INC.
By: /s/ Foster A. Stewart, Jr.
--------------------------------
Name: Foster A. Stewart, Jr.
Title: Sole Incorporator and Sole Director
<PAGE>
CERTIFICATE OF OWNERSHIP
MERGING
AMERICAN SKIING COMPANY
INTO
ASC DELAWARE, INC.
American Skiing Company, a corporation organized and existing under the
laws of the State of Maine
DOES HEREBY CERTIFY:
FIRST: That it was organized pursuant to the provisions of the Maine
Business Corporation Act on the
28th day of May, 1997.
SECOND: That it owns all of the outstanding shares of the capital stock of
ASC Delaware, Inc., a corporation organized pursuant to the provisions of the
General Corporation Law of the State of Delaware, on the 5th day of October,
1999.
THIRD: That its Board of Directors, acting through its executive committee,
at a meeting held on the 1st day of October, 1999, determined to merge the
corporation into said ASC Delaware, Inc. and did adopt the following
resolutions:
RESOLVED: That, subject to receipt of the required approvals of the
shareholders of this corporation at a special meeting to be
held on October 7, 1999 with respect to the merger
transaction contemplated thereby, the execution and delivery
on behalf of this corporation and ASC Delaware, Inc. of the
Agreement and Plan of Merger substantially in the form
attached hereto as Exhibit A by any of the officers of this
corporation be, and it hereby is, authorized.
RESOLVED: That the execution and filing of articles of merger or other
documents on behalf of this corporation or ASC Delaware,
Inc. in order to effectuate the merger contemplated by the
immediately preceding resolution be, and it hereby is,
authorized.
RESOLVED: That the officers of this corporation be, and each of
them acting singly hereby is, authorized to execute
such documents and to take such other actions as may
be necessary or desirable to effectuate the intent of
the foregoing resolutions.
FOURTH: That this merger has been approved by the holders of at least a
majority of the outstanding shares of stock of this corporation, American Skiing
Company, at a meeting duly called for the purpose.
IN WITNESS WHEREOF, said corporation has caused this certificate to be
signed by its authorized officer, the 7th day of October, 1999.
AMERICAN SKIING COMPANY
By: /s/ Christopher E. Howard
--------------------------------
Christopher E. Howard,
Executive Vice President
SECOND SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"),
dated as of September 4, 1998, among ASC East, Inc., formerly American Skiing
Company, a Maine corporation (the "Company"), the Guarantors listed on the
signature pages hereof under the heading Existing Guarantors (the "Existing
Guarantors"), each of American Skiing Company Resort Properties, Inc., The
Canyons Resort Properties, Inc. Steamboat Resort Properties, Inc., Heavenly
Resort Properties, Inc., Sugarloaf Resort Properties, Inc., Killington Resort
Properties, Inc., Mount Snow Resort Properties, Inc., Sugarbush Resort
Properties, Inc., Sunday River Resort Properties, Inc. and Attitash Resort
Properties, Inc. (each a "New Guaranteeing Subsidiary and, together with the
Existing Guarantors, the "Guarantors") and United States Trust Company of New
York, 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, dated as of June 28, 1996, among
this Company, the Existing Guarantors and the Trustee (the "Original
Indenture"), the Company duly issued its 12% Senior Subordinated Notes Due 2006
(the "Securities") in the aggregate principal amount of $120 million;
WHEREAS, the Original Indenture was amended by the Fist Supplemental
Indenture, dated as of November 12, 1997, among the Company, the Existing
Guarantors and the Trustee (the Original Indenture as so amended, the
"Indenture"):
WHEREAS, the Company acquired each New Guaranteeing Subsidiary on the
date hereof and the Company has provided the Trustee with an Officers'
Certificate to the effect that none of the New Guaranteeing Subsidiaries has
been designated as an Unrestricted Subsidiary under the terms of the Indenture;
WHEREAS, accordingly, pursuant to Section 4.16 of the Indenture, each
of the New Guaranteeing Subsidiaries is required, among other things, to become
a Guarantor and enter into a supplemental indenture agreeing to be bound by all
of the terms of the Indenture;
WHEREAS, pursuant to Section 9.01 of the Indenture, the Company, the
Existing Guarantors and the Trustee may amend or supplement the Indenture
without the consent of any Holder of a Note to provide for the addition of a
Guarantor pursuant to Section 4.16 of the Indenture;
WHEREAS, the Company, each of the Existing Guarantors, each of the New
Guaranteeing Subsidiaries and the Trustee desire and have agreed to execute and
deliver this Second Supplemental Indenture as herein provided and all conditions
and requirements necessary to make this Second 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;
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. Capitalized terms used herein without definition shall have
the meanings assigned to them in the Indenture.
Section 2. Each New Guaranteeing Subsidiary agrees, by its execution
and delivery hereof, that it does hereby become a Guarantor under the Indenture
and that it is bound by all the terms of the Indenture as hereby supplemented.
Exhibit C to the Indenture is hereby amended to read as set forth in Annex I
attached hereto.
Section 3. 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 4. 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 5. 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 of 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 Company
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 6. This Supplemental Indenture shall become effective upon the
execution and delivery hereof by the Company, the Guarantors and the Trustee.
SECTION 7. 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 JURISDICITON WOULD BE REQUIRED THEREBY.
Section 8. 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.
IN WITNES WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
ASC EAST, INC. (f/k/a AMERICAN
SKIING COMPANY)
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
Guarantors
AMERICAN SKIING COMPANY RESORT
PROPERTIES, INC.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
THE CANYONS RESORT PROPERTIES, INC.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
STEAMBOAT RESORT PROPERTIES, INC.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
<PAGE>
HEAVENLY RESORT PROPERTIES, INC.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
SUGARLOAF RESORT PROPERTIES, INC.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
KILLINGTON RESORT PROPERTIES, INC.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
MOUNT SNOW RESORT PROPERTIES, INC.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
SUGARBUSH RESORT PROPERTIES, INC.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
<PAGE>
SUNDAY RIVER RESORT PROPERTIES, INC.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
ATTITASH RESORT PROPERTIES, INC.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
Exisiting Guarantors
SUNDAY RIVER SKIWAY CORPORATION
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
SUNDAY RIVER, LTD.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
PERFECT TURN, INC.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
<PAGE>
LBO HOLDINGS, INC.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
SUNDAY RIVER TRANSPORTATION, INC.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
SUGARBUSH RESORT HOLDINGS, INC.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
SUGARBUSH LEASING COMPANY
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
SUGARBUSH RESTAURANTS, INC.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
<PAGE>
AJT, INC. (f/k/a CRANMORE, INC.)
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
MOUNTAIN WASTEWATER TREATMENT, INC.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
GRAND SUMMIT RESORT PROPERTIES,INC.
(f/k/a LBO HOTEL CO.)
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
S-K-I LIMITED
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
KILLINGTON LTD.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
<PAGE>
MOUNT SNOW LTD.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
WVSAL, INC. (f/k/a WATERVILLE
VALLEY SKI AREA, LTD.)
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
SUGARLOAF MOUNTAIN CORPORATION
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
KILLINGTON RESTAURANTS, INC.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
DOVER RESTAURANTS, INC.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
<PAGE>
RESORTS TECHNOLOGIES, INC.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
RESORT SOFTWARE SERVICES, INC.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
MOUNTAINSIDE
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
SUGARTECH
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
PICO SKI AREA MANAGEMENT COMPANY
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
<PAGE>
UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
ATTEST: unable to read By:/s/ Louis P. Young
---------------- ----------------------------------
Name: Louis P. Young
Title: Vice President
SUBSIDIARY GUARANTEE
Each of the Guarantors hereby, jointly and severally, unconditionally
guarantees to each Holder of a Note authenticated and delivered by the Trustee
and to the Trustee and its successors and assigns, irrespective of the validity
and enforceability of this Indenture, the Notes or the obligations of the
Company hereunder or thereunder, that: (a) the principal of and premium,
interest and Liquidated Damages, if any, on the Notes will be promptly paid in
full when due, whether at maturity, by acceleration, redemption or otherwise,
and interest on the overdue principal of, premium and interest and Liquidated
Damages on the Notes, if any, if lawful, and all other obligations of the
Company to the Holders or the Trustee hereunder or thereunder will be promptly
paid in full or performed, all in accordance with the terms hereof and thereof;
and (b) in case of any extension of time of payment or renewal of any Notes or
any of such other obligations, that 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. Failing payment when due of
any amount so guaranteed or any performance so guaranteed for whatever reason,
the Guarantors will be jointly and severally obligated to pay the same
immediately.
The obligations of the Guarantors to the Holders of Notes and to the
Trustee pursuant to this Subsidiary Guarantee and the Indenture are expressly
set forth in Article 11 of the Indenture, and reference is hereby made to such
Indenture for the precise terms of this Subsidiary Guarantee. The terms of
Article 11 of the Indenture are incorporated herein by reference.
This is a continuing Subsidiary Guarantee and shall remain in full
force and effect and shall be binding upon each Guarantor and its respective
successors and assigns to the extent set forth in the Indenture until full and
final payment of all of the Company's Obligations under the Notes and the
Indenture and shall inure to the benefit of the successors and assigns of the
Trustee and the Holders of the Notes and, in the event of any transfer or
assignment of rights by any Holder of Notes or the Trustee, the rights and
privileges herein conferred upon that party shall automatically extend to and be
vested in such transferee or assignee, all subject to the terms and conditions
hereof. This a Subsidiary Guarantee of payment and not a guarantee of
collection.
In certain circumstances more fully described in the Indenture, any
Guarantor may be released from its liability under this Subsidiary Guarantee,
and any such release will be effective whether or not noted hereon.
This Subsidiary Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Note upon which this
Subsidiary Guarantee is noted shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized officers.
For purposes hereof, each Guarantor's liability will be that amount
from time to time equal to the aggregate liability of such Guarantor hereunder,
but shall be limited to the lesser of (i) the aggregate amount of the
Obligations of the Company under the Notes and the Indenture and (ii) the
amount, if any, which would not have (A) rendered such Guarantor "insolvent" (as
such term is defined in the federal Bankruptcy Law and in the Debtor and
Creditor Law of the State of New York) or (B) left it with unreasonably small
capital at the time its Guarantee of the Notes was entered into, after giving
effect to the incurrence of existing Indebtedness immediately prior to such
time; provided that, it shall be a presumption in any lawsuit or other
proceeding in which such Guarantor is a party that the amount guaranteed
pursuant to its Subsidiary Guarantee is the amount set forth in clause (i) above
unless any creditor, or representative of creditors of such Guarantor, or debtor
in possession or trustee in bankruptcy of such Guarantor, otherwise proves in
such a lawsuit that the aggregate liability of such Guarantor is limited to the
amount set forth in clause (ii). In making any determination as to the solvency
or sufficiency of capital of a Guarantor in accordance with the previous
sentence, the right of such Guarantor to contribution from other Guarantors and
any other rights such Guarantor may have, contractual or otherwise, shall be
taken into account.
Capitalized terms used herein have the same meanings given in the
Indenture unless otherwise indicated.
SUNDAY RIVER SKIWAY CORPORATION
By: /s/ Christopher E. Howard
---------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
SUNDAY RIVER LTD.
By: /s/ Christopher E. Howard
---------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
PERFECT TURN, INC.
By: /s/ Christopher E. Howard
---------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
LBO HOLDING, INC.
By: /s/ Christopher E. Howard
---------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
SUNDAY RIVER TRANSPORTATION, INC.
By: /s/ Christopher E. Howard
---------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
SUGARBUSH RESORT HOLDINGS, INC.
By: /s/ Christopher E. Howard
---------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
<PAGE>
SUGARBUSH LEASING COMPANY
By: /s/ Christopher E. Howard
---------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
SUGARBUSH RESTAURANTS, INC.
By: /s/ Christopher E. Howard
---------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
CI, INC. (f/k/a CRANMORE, INC.)
By: /s/ Christopher E. Howard
---------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
MOUNTAIN WASTEWATER TREATMENT, INC.
By: /s/ Christopher E. Howard
---------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
GRAND SUMMIT RESORT PROPERTIES, INC.
(f/k/a LBO HOTEL CO.)
By: /s/ Christopher E. Howard
---------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
S-K-I LIMITED
By: /s/ Christopher E. Howard
---------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
KILLINGTON LTD.
By: /s/ Christopher E. Howard
---------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
<PAGE>
MOUNT SNOW LTD.
By: /s/ Christopher E. Howard
---------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
WVSAL, INC. (f/k/a WATERVILLE
VALLEY SKI AREA, LTD.)
By: /s/ Christopher E. Howard
---------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
SUGARLOAF MOUNTAIN CORPORATION
By: /s/ Christopher E. Howard
---------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
KILLINGTON RESTAURANTS, INC.
By: /s/ Christopher E. Howard
---------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
DOVER RESTAURANTS, INC.
By: /s/ Christopher E. Howard
---------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
RESORTS TECHNOLOGIES, INC.
By: /s/ Christopher E. Howard
---------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
RESORT SOFTWARE SERVICES, INC.
By: /s/ Christopher E. Howard
---------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
<PAGE>
MOUNTAINSIDE
By: /s/ Christopher E. Howard
---------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
SUGARTECH
By: /s/ Christopher E. Howard
---------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
PICO SKI AREA MANAGEMENT COMPANY
By: /s/ Christopher E. Howard
---------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
AMERICAN SKIING COMPANY RESORT
PROPERTIES, INC.
By: /s/ Christopher E. Howard
---------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
THE CANYONS RESORT PROPERTIES, INC.
By: /s/ Christopher E. Howard
---------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
STEAMBOAT RESORT PROPERTIES, INC.
By: /s/ Christopher E. Howard
---------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
<PAGE>
HEAVENLY RESORT PROPERTIES, INC.
By: /s/ Christopher E. Howard
---------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
SUGARLOAF RESORT PROPERTIES, INC.
By: /s/ Christopher E. Howard
---------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
KILLINGTON RESORT PROPERTIES, INC.
By: /s/ Christopher E. Howard
---------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
MOUNT SNOW RESORT PROPERTIES, INC.
By: /s/ Christopher E. Howard
---------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
SUGARBUSH RESORT PROPERTIES, INC.
By: /s/ Christopher E. Howard
---------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
SUNDAY RIVER RESORT PROPERTIES, INC.
By: /s/ Christopher E. Howard
---------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
ATTITASH RESORT PROPERTIES, INC.
By: /s/ Christopher E. Howard
---------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
EXECUTION COPY
================================================================================
Third Supplemental Indenture
Dated as of August 6, 1999
among
ASC East, Inc.
and
United States Trust Company of New York,
as Trustee,
and
the Guarantors named herein
----------------
Series A and Series B
12% Senior Subordinated Notes
Due 2006
================================================================================
<PAGE>
Document #: 628684.6
THIRD SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"),
dated as of August 6, 1999, among ASC East, Inc., formerly American Skiing
Company, a Maine corporation (the "Company"), the Guarantors listed on the
signature pages hereof under the heading Guarantors (the "Guarantors"), and
United States Trust Company of New York, 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, dated as of June 28, 1996,
among the Company, the Guarantors named therein (the "Original Guarantors"), and
the Trustee (the "Original Indenture"), the Company duly issued its 12% Senior
Subordinated Notes Due 2006 (the "Securities") in the aggregate principal amount
of $120 million;
WHEREAS, the Original Indenture was amended by (i) the First
Supplemental Indenture, dated as of November 12, 1997, among the Company, the
Original Guarantors and the Trustee and (ii) the Second Supplemental Indenture,
dated as of September 4, 1998, among the Company, the Original Guarantors, the
New Guaranteeing Subsidiaries named therein, and the Trustee (the Original
Indenture, as so amended, the "Indenture");
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 outstanding Securities to certain amendments (the "Amendments") to
the Indenture as set forth in this Supplemental Indenture;
WHEREAS, the Company has determined to adopt the Amendments in
connection with the proposals of (i) its parent, American Skiing Company
("ASC"), to issue 150,000 shares of 8.5% Series B Convertible Participating
Preferred Stock pursuant to the terms of a Preferred Stock Subscription
Agreement, dated as of July 9, 1999, among ASC and Oak Hill Capital Partners,
L.P and the other entities named in Annex A thereto (the "Preferred Stock
Transaction") and (ii) the Company and ASC West, Inc. to merge with and into ASC
(the "Merger");
WHEREAS, the parties hereto desire that certain of the
Amendments become operative concurrently with the consummation of the Preferred
Stock Transaction and certain of the Amendments become operative concurrently
with the consummation of the Merger;
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;
WHEREAS, it is intended that, upon the effective date of the
Merger, ASC shall succeed to, and be substituted for and may exercise every
right and power of the Company under, the Indenture, and shall, pursuant to
Section 5.01(ii) of the Indenture, enter into a supplemental indenture with the
Trustee, the Guarantors, and the Additional Guarantors (as defined below) (the
"Fourth Supplemental Indenture"), agreeing to be bound by all of the terms of
the Indenture as amended by this Supplemental Indenture;
WHEREAS, it is intended that, upon the effective date of the
Merger, each of the entities named in Annex I hereto shall become a Guarantor
under the Indenture (each, an "Additional Guarantor"), and each Additional
Guarantor shall, pursuant to Section 4.16 of the Indenture, (i) enter into the
Fourth Supplemental Indenture agreeing to be bound by all of the terms of the
Indenture as amended by this Supplemental Indenture and (ii) execute a
Subsidiary Guarantee; and
WHEREAS, the Company, each of the Guarantors and the Trustee
desire and have agreed to execute and deliver this Supplemental Indenture as
herein provided and 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.
NOW, THEREFORE, for and in consideration of the premises
contained herein, it is mutually covenanted and agreed for the benefit of all
Holders of the Securities as follows:
Section 1. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture. All references herein
to the date of the Indenture shall mean July 28, 1996. From and after the
effective date of the Merger, and upon the execution and delivery of the Fourth
Supplemental Indenture, ASC shall assume the rights and obligations of the
Company under the Notes and the Indenture, and, accordingly, the provisions of
the Indenture referring to the "Company" shall mean ASC and not ASC East, Inc.
Section 2. From and after the closing date of the Preferred
Stock Transaction, Article I, Section 1.01 (Definitions) of the Indenture shall
be amended as follows:
(a) Definition of "Change of Control." The definition of
"Change of Control" is amended by deleting such definition in its
entirety and substituting the following therefor:
"Change of Control" means the occurrence of any of
the following: (i) the sale, lease, transfer, conveyance or
other disposition (other than by way of merger or
consolidation), in one or a series of related transactions, of
all or substantially all of the assets of the Company and its
Restricted Subsidiaries, taken as a whole, to any "person" (as
such term is used in Section 13(d)(3) of the Exchange Act)
other than the Permitted Holders, (ii) the adoption of a plan
relating to the liquidation or dissolution of the Company,
(iii) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which
is that any "person" (as such term is used in Section 13(d)(3)
of the Exchange Act), other than the Permitted Holders,
becomes the "beneficial owner" (as such term is defined in
Rule 13d-3 and Rule 13d-5 under the Exchange Act), directly or
indirectly, of more than the greater of (a) 35% of the voting
power of the Capital Stock of the Company or (b) the combined
voting power of the Capital Stock held by the Permitted
Holders, unless, in the case of this clause (iii), the
Permitted Holders retain the right or ability, by voting
power, contract or otherwise, to elect or designate a majority
of the Board of Directors of the Company, or (iv) the first
day on which more than one-third of the members of the Board
of Directors of the Company are not Continuing Directors.
(b) Definition of "Permitted Holders." The definition of
"Permitted Holders" is amended by deleting such definition in its
entirety and substituting the following therefor:
"Permitted Holders" means (a) Leslie B. Otten (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 Leslie B. Otten and his Heirs, directly or indirectly,
have an 80% controlling interest, and/or (c) Oak Hill Capital
Partners, L.P. and Oak Hill Securities Fund, L.P. and their
respective affiliates and associates.
Section 3. From and after the effective date of the Merger,
and the execution and delivery of (i) the Fourth Supplemental Indenture by the
parties thereto, and (ii) a Subsidiary Guarantee by each Additional Guarantor;
provided that, and only in the event that, the Preferred Stock Transaction has
been consummated, Article I, Section 1.01 (Definitions) of the Indenture shall
be amended as follows:
(a) Definition of "Delaware Reincorporation." The following
definition of "Delaware Reincorporation" is added immediately following
the definition of "Default":
"Delaware Reincorporation" means the Company's
merger with and into a newly formed subsidiary that is
incorporated in the State of Delaware (with such new Delaware
subsidiary surviving the merger) and that, immediately after
giving effect to such merger, will have the identical
authorized, issued and outstanding capital stock having the
same rights and preferences as the Company's immediately prior
to such merger.
(b) Definition of "Disqualified Stock." The definition of
"Disqualified Stock" is amended by adding the following sentence
immediately after the last sentence of the definition:
Notwithstanding the preceding sentence, any Capital Stock that
would not constitute Disqualified Stock but for change of
control or asset sale provisions shall not constitute
Disqualified Stock if those provisions are not more favorable
to the holders of such Capital Stock than the provisions
contained in Sections 3.09, 4.10 and 4.15 are to the Holders.
(c) Definition of "Existing Indebtedness." The definition of
"Existing Indebtedness" is amended by deleting such definition in its
entirety and substituting the following therefor:
"Existing Indebtedness" means Indebtedness of the
Company and its Restricted Subsidiaries in existence on the
date of the Indenture or on the date of the Third Supplemental
Indenture dated August 6, 1999, or assumed or incurred on or
prior to the date of the Merger in connection with the Merger,
in each case, until such amounts are repaid.
(d) Definition of "Guarantors." The definition of "Guarantors"
is amended by deleting "Deerfield Operating Company" and adding the
following to the list of Guarantors: Blunder Bay Development Co.; ASC
Leasing, Inc.; Orlando Resort Corporation; ASC Transportation, Inc.;
ASC Utah; Steamboat Development Corporation; Steamboat Ski & Resort
Corporation; Heavenly Corporation; Heavenly Valley Limited Partnership;
and Heavenly Ski & Resort Corporation.
(e) Definition of "Merger." The definition of "Merger" is
added immediately following the definition of "Liquidated Damages":
"Merger" means the merger of ASC East, Inc. and ASC West, Inc. with
and into the Company.
(f) Definition of "Non-Recourse Debt." The definition of
"Non-Recourse Debt" is amended by deleting such definition in its
entirety and substituting the following therefor:
"Non-Recourse Debt" means Indebtedness (i) as to
which neither the Company nor any of its Restricted
Subsidiaries (a) provides credit support of any kind
(including any undertaking, agreement or instrument that would
constitute Indebtedness), (b) is directly or indirectly liable
(as a guarantor or otherwise), or (c) constitutes the lender,
(ii) no default with respect to which (including any rights
that the holders thereof may have to take enforcement action
against an Unrestricted Subsidiary) would permit (upon notice,
lapse of time or both) any holder of any other Indebtedness
that aggregates $5.0 million or more of the Company or any of
its Restricted Subsidiaries to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or
payable prior to its stated maturity, and (iii) with respect
to Indebtedness that aggregates $0.5 million or more, as to
which the lenders have been notified in writing that they will
not have any recourse to the stock or assets of the Company or
any of its Restricted Subsidiaries.
(g) Definition of "Non-Recourse Real Estate Debt." The
definition of "Non-Recourse Real Estate Debt" is amended by deleting
such definition in its entirety and substituting the following
therefor:
"Non-Recourse Real Estate Debt" means Indebtedness
(i) as to which neither the Company nor any of its Restricted
Subsidiaries, other than Real Estate Subsidiaries, (a)
provides credit support of any kind (including any
undertaking, agreement or instrument that would constitute
Indebtedness), (b) is directly or indirectly liable (as a
guarantor or otherwise) or (c) constitutes the lender, (ii) no
default with respect to which (including any rights that the
holders thereof may have to take enforcement action against a
Real Estate Subsidiary) would permit (upon notice, lapse of
time or both) any holder of any other Indebtedness that
aggregates $5.0 million or more of the Company or any of its
Restricted Subsidiaries, other than Real Estate Subsidiaries,
to declare a default on such other Indebtedness or cause the
payment thereof to be accelerated or payable prior to its
stated maturity and (iii) with respect to Indebtedness that
aggregates $0.5 million or more, as to which the lenders have
been notified in writing that they will not have any recourse
to the stock or assets of the Company or any of its Restricted
Subsidiaries, other than Real Estate Subsidiaries, except, in
each case, to the extent permitted by the provisions of
Section 4.09 hereof.
(h) Definition of "Permitted Investments." The definition of
"Permitted Investments" is amended by adding the following paragraphs:
(vi) Guarantees of Hedging Obligations permitted to be
incurred pursuant to clause (xi) of Section 4.09 hereof;
(vii) any acquisition of assets solely in exchange for the
issuance of Equity Interests (other than Disqualified Stock) of
the Company; and
(viii) Investments outstanding on the date of the Merger
other than Investments made by ASC East, Inc. and its
Subsidiaries subsequent to the date of the Indenture and prior to
the date of the Merger.
Section 4. From and after the effective date of the Merger and
the execution and delivery of (i) the Fourth Supplemental Indenture by the
parties thereto, and (ii) a Subsidiary Guarantee by each Additional Guarantor;
provided that, and only in the event that, the Preferred Stock Transaction has
been consummated, Article IV (Covenants) of the Indenture shall be amended as
follows:
(a) Section 4.07. Restricted Payments. Section 4.07(C)(ii) is
amended by deleting the date "July 29, 1996" and substituting "July
26, 1999" therefor.
(b) Section 4.08. Dividend and Other Payment Restrictions
Affecting Subsidiaries. Section 4.08 is amended by deleting the second
clause (a) in its entirety and substituting the following therefor:
(a) Existing Indebtedness as (i) in effect on the
date of the Indenture or (ii) in effect on the date of the
Merger (other than, with respect to clause (ii), Existing
Indebtedness of ASC East, Inc. and its Restricted Subsidiaries
incurred after the date of the Indenture and prior to the
consummation of the Merger);
and adding the following clauses at the end of Section 4.08:
(i) any agreement for the sale or other disposition
of a Restricted Subsidiary that restricts distributions by
that Restricted Subsidiary pending its sale or other
disposition; and
(j) Permitted Refinancing Debt, provided that the
restrictions contained in the agreements governing such
Permitted Refinancing Debt are no more restrictive, taken as a
whole, than those contained in the agreements governing the
Indebtedness being refinanced.
(c) Section 4.09. Incurrence of Indebtedness and Issuance of
Preferred Stock. Section 4.09 is amended by (i) deleting the reference
to "$65 million" in clause (i)(a) and substituting "$165 million"
therefor and (ii) adding the following clauses at the end of Section
4.09:
(xi) the incurrence by the Company or any of its
Restricted Subsidiaries of Hedging Obligations in the ordinary
course of business (a) for the purpose of fixing or hedging
interest rate risk with respect to any Indebtedness that is
permitted by the terms of the Indenture to be outstanding or
(b) for the purpose of fixing or hedging currency exchange
rate risk with respect to any currency exchanges, provided
that such agreements do not increase the Indebtedness of the
obligor outstanding at any time other than as a result of
fluctuations in foreign currency exchange rates or interest
rates or by reason of fees, indemnities and compensation
payable thereunder; and
(xii) the incurrence by the Company or any of its
Restricted Subsidiaries in the ordinary course of business of
obligations in respect of performance and surety bonds and
completion guarantees, and reimbursement obligations in
respect of letters of credit and self-insurance programs.
Section 5. From and after the effective date of the Merger and
the execution and delivery of (i) the Fourth Supplemental Indenture by the
parties thereto, and (ii) a Subsidiary Guarantee by each Additional Guarantor;
provided that, and only in the event that, the Preferred Stock Transaction has
been consummated, Section 5.01 (Merger, Consolidation, or Sale of Assets) of the
Indenture shall be amended by adding the following statement at the end of such
section:
Notwithstanding the foregoing, this Section 5.01 (except for
clause (ii)) shall not be applicable to the Merger or the
Delaware Reincorporation.
Section 6. 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 7. 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 8. 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 Company 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 9. This Supplemental Indenture shall become effective
upon the execution and delivery hereof by the Company, the Guarantors and the
Trustee.
SECTION 10. 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 11. 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.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed and attested, all as of the date
first above written.
ASC EAST, INC. (f/k/a AMERICAN
SKIING COMPANY)
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
Guarantors
AMERICAN SKIING COMPANY RESORT
PROPERTIES, INC.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
THE CANYONS RESORT PROPERTIES, INC.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
STEAMBOAT RESORT PROPERTIES, INC.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
<PAGE>
HEAVENLY PROPERTIES, INC.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
SUGARLOAF RESORT PROPERTIES, INC.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
KILLINGTON RESORT PROPERTIES, INC.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
MOUNT SNOW RESORT PROPERTIES, INC.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
SUGARBUSH RESORT PROPERTIES, INC.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
<PAGE>
SUNDAY RIVER RESORT PROPERTIES, INC.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
ATTITASH RESORT PROPERTIES, INC.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
SUNDAY RIVER SKIWAY CORPORATION
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
SUNDAY RIVER, LTD.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
PERFECT TURN, INC.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
<PAGE>
LBO HOLDINGS, INC.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
SUNDAY RIVER TRANSPORTATION, INC.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
SUGARBUSH RESORT HOLDINGS, INC.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
SUGARBUSH LEASING COMPANY
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
SUGARBUSH RESTAURANTS, INC.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
<PAGE>
AJT, INC. (f/k/a CRANMORE, INC.)
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
MOUNTAIN WASTEWATER TREATMENT, INC.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
GRAND SUMMIT RESORT PROPERTIES,INC.
(f/k/a LBO HOTEL CO.)
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
S-K-I LIMITED
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
KILLINGTON LTD.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
<PAGE>
MOUNT SNOW LTD.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
WVSAL, INC. (f/k/a WATERVILLE
VALLEY SKI AREA, LTD.)
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
SUGARLOAF MOUNTAIN CORPORATION
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
KILLINGTON RESTAURANTS, INC.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
DOVER RESTAURANTS, INC.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
<PAGE>
RESORTS TECHNOLOGIES, INC.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
RESORT SOFTWARE SERVICES, INC.
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
MOUNTAINSIDE
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
SUGARTECH
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
PICO SKI AREA MANAGEMENT COMPANY
ATTEST: /s/ Foster A. Stewart, Jr. By: /s/ Christopher E. Howard
---------------------- ------------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
<PAGE>
UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
ATTEST: unable to read By:/s/ Louis P. Young
---------------- ----------------------------------
Name: Louis P. Young
Title: Vice President
EXECUTION COPY
================================================================================
Fourth Supplemental Indenture
Dated as of October 6, 1999
among
American Skiing Company
and
United States Trust Company of New York,
as Trustee,
and
the Guarantors named herein
----------------
Series A and Series B
12% Senior Subordinated Notes
Due 2006
================================================================================
<PAGE>
FOURTH SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as
of October 6, 1999, among American Skiing Company, a Maine corporation ("ASC"),
the Guarantors listed on the signature pages hereof under the heading Existing
Guarantors (the "Existing Guarantors"), each of Blunder Bay Development Co., ASC
Leasing, Inc., Orlando Resort Corporation, ASC Transportation, Inc., ASC Utah,
Steamboat Development Corporation, Steamboat Ski & Resort Corporation, Heavenly
Corporation, Heavenly Valley, Limited Partnership, and Heavenly Ski & Resort
Corporation (each, an "Additional Guarantor" and, together with the Existing
Guarantors, the "Guarantors"), and United States Trust Company of New York, 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, dated as of June 28, 1996, among
ASC East, Inc. ("ASC East"), the Guarantors named therein (the "Original
Guarantors"), and the Trustee (the "Original Indenture"), ASC East duly issued
its 12% Senior Subordinated Notes Due 2006 (the "Securities") in the aggregate
principal amount of $120 million;
WHEREAS, the Original Indenture was amended by (i) the First
Supplemental Indenture, dated as of November 12, 1997, among ASC East, the
Original Guarantors, and the Trustee, (ii) the Second Supplemental Indenture,
dated as of September 4, 1998, among ASC East, the Existing Guarantors, and the
Trustee, and (iii) the Third Supplemental Indenture, dated as of August 6, 1999,
among ASC East, the Existing Guarantors, and the Trustee (the Original
Indenture, as so amended and supplemented, the "Indenture");
WHEREAS, on or prior to the date hereof, ASC East and ASC West, Inc.
shall have merged with and into their parent, ASC (the "Merger");
WHEREAS, it is intended that, upon the effective date of the Merger,
ASC shall succeed to, and be substituted for and may exercise every right and
power of ASC East under the Indenture, and shall, pursuant to Section 5.01(ii)
of the Indenture, enter into this Supplemental Indenture with the Trustee and
the Guarantors, agreeing to be bound by all of the terms and provisions of the
Indenture as amended hereby;
WHEREAS, upon the effective date of the Merger, each Additional
Guarantor shall have become a subsidiary of ASC, and ASC shall have provided the
Trustee with an Officers' Certificate to the effect that none of the Additional
Guarantors has been designated as an Unrestricted Subsidiary under the terms of
the Indenture;
WHEREAS, it is intended that, upon the effective date of the Merger,
each of the Additional Guarantors shall become a Guarantor under the Indenture,
and each Additional Guarantor shall, pursuant to Section 4.16 of the Indenture,
(i) enter into this Supplemental Indenture agreeing to be bound by all of the
terms and provisions of the Indenture as amended hereby and (ii) execute a
Subsidiary Guarantee;
<PAGE>
WHEREAS, pursuant to Section 9.01 of the Indenture, the Indenture may
be amended or supplemented without the consent of any Holder of a Note to
provide for the assumption of ASC East's rights and obligations under the Notes
and the Indenture in the case of a merger and for the addition of a Guarantor
pursuant to Section 4.16 of the Indenture;
WHEREAS, ASC, each of the Guarantors and the Trustee desire and have
agreed to execute and deliver this Supplemental Indenture as herein provided and
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.
NOW THEREFORE, for and in consideration of the premises contained
herein, it is mutually covenanted and agreed for the benefit of all Holders of
the Securities as follows:
Section 1. Capitalized terms used herein without definition shall have
the meanings assigned to them in the Indenture.
Section 2. ASC agrees, by its execution and delivery hereof, (a) to
assume all the rights and obligations of ASC East under the Notes and the
Indenture, (b) that it does hereby become the primary obligor of the Notes, and,
accordingly, may exercise every right and power of ASC East under the Indenture
with the same effect as if it had been named as the Company in the Indenture (so
that from and after the effective date of the Merger, the provisions of the
Indenture referring to the "Company" shall refer to ASC, as successor
corporation, and not to ASC East), and (c) that it is bound by all the terms and
provisions of the Indenture as hereby supplemented.
Section 3. Each Additional Guarantor agrees, by its execution and
delivery hereof, that it does hereby become a Guarantor under the Indenture and
that it is bound by all the terms and provisions of the Indenture as hereby
supplemented. Exhibit C to the Indenture is hereby amended to read as set forth
in Annex I attached hereto.
Section 4. 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 5. 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 6. The recitals contained in this Supplemental Indenture shall
be taken as the statements made solely by ASC 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 ASC and the Guarantors by
corporate action or otherwise, (iii) the due execution hereof by ASC 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 7. This Supplemental Indenture shall become effective upon the
execution and delivery hereof by ASC, the Guarantors and the Trustee.
SECTION 8. 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 9. 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.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
AMERICAN SKIING COMPANY
ATTEST: /s/ Donna Godish By: /s/ Christopher E. Howard
------------------ -----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
Existing Guarantors
AMERICAN SKIING COMPANY RESORT
PROPERTIES, INC.
ATTEST: /s/ Donna Godish By: /s/ Christopher E. Howard
------------------ -----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
THE CANYONS RESORT PROPERTIES, INC.
ATTEST: /s/ Donna Godish By: /s/ Christopher E. Howard
------------------ -----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
STEAMBOAT RESORT PROPERTIES, INC.
ATTEST: /s/ Donna Godish By: /s/ Christopher E. Howard
------------------ -----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
<PAGE>
HEAVENLY PROPERTIES, INC.
(f/k/a Heavenly Resort Properties, Inc.)
ATTEST: /s/ Donna Godish By: /s/ Christopher E. Howard
------------------ -----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
SUGARLOAF RESORT PROPERTIES, INC.
ATTEST: /s/ Donna Godish By: /s/ Christopher E. Howard
------------------ -----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
KILLINGTON RESORT PROPERTIES, INC.
ATTEST: /s/ Donna Godish By: /s/ Christopher E. Howard
------------------ -----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
MOUNT SNOW RESORT PROPERTIES, INC.
ATTEST: /s/ Donna Godish By: /s/ Christopher E. Howard
------------------ -----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
SUGARBUSH RESORT PROPERTIES, INC.
ATTEST: /s/ Donna Godish By: /s/ Christopher E. Howard
------------------ -----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
<PAGE>
SUNDAY RIVER RESORT PROPERTIES, INC.
ATTEST: /s/ Donna Godish By: /s/ Christopher E. Howard
------------------ -----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
ATTITASH RESORT PROPERTIES,INC.
ATTEST: /s/ Donna Godish By: /s/ Christopher E. Howard
------------------ -----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
SUNDAY RIVER SKIWAY CORPORATION
ATTEST: /s/ Donna Godish By: /s/ Christopher E. Howard
------------------ -----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
SUNDAY RIVER, LTD.
ATTEST: /s/ Donna Godish By: /s/ Christopher E. Howard
------------------ -----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
PERFECT TURN, INC.
ATTEST: /s/ Donna Godish By: /s/ Christopher E. Howard
------------------ -----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
<PAGE>
L.B.O. HOLDING, INC.
ATTEST: /s/ Donna Godish By: /s/ Christopher E. Howard
------------------ -----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
SUNDAY RIVER TRANSPORTATION, INC.
ATTEST: /s/ Donna Godish By: /s/ Christopher E. Howard
------------------ -----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
SUGARBUSH RESORT HOLDINGS, INC.
ATTEST: /s/ Donna Godish By: /s/ Christopher E. Howard
------------------ -----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
SUGARBUSH LEASING COMPANY
ATTEST: /s/ Donna Godish By: /s/ Christopher E. Howard
------------------ -----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
SUGARBUSH RESTAURANTS, INC.
ATTEST: /s/ Donna Godish By: /s/ Christopher E. Howard
------------------ -----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
<PAGE>
AJT, INC. (f/k/a CI, Inc. and CRANMORE, INC.)
ATTEST: /s/ Donna Godish By: /s/ Christopher E. Howard
------------------ -----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
MOUNTAIN WASTEWATER TREATMENT, INC.
ATTEST: /s/ Donna Godish By: /s/ Christopher E. Howard
------------------ -----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
GRAND SUMMIT RESORT PROPERTIES, INC.
(f/k/a LBO HOTEL CO.)
ATTEST: /s/ Donna Godish By: /s/ Christopher E. Howard
------------------ -----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
S-K-I LIMITED
ATTEST: /s/ Donna Godish By: /s/ Christopher E. Howard
------------------ -----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
KILLINGTON LTD.
ATTEST: /s/ Donna Godish By: /s/ Christopher E. Howard
------------------ -----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
<PAGE>
MOUNT SNOW LTD.
ATTEST: /s/ Donna Godish By: /s/ Christopher E. Howard
------------------ -----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
WVSAL, INC. (f/k/a WATERVILLE
VALLEY SKI AREA, LTD.)
ATTEST: /s/ Donna Godish By: /s/ Christopher E. Howard
------------------ -----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
SUGARLOAF MOUNTAIN CORPORATION
ATTEST: /s/ Donna Godish By: /s/ Christopher E. Howard
------------------ -----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
KILLINGTON RESTAURANTS, INC.
ATTEST: /s/ Donna Godish By: /s/ Christopher E. Howard
------------------ -----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
DOVER RESTAURANTS, INC.
ATTEST: /s/ Donna Godish By: /s/ Christopher E. Howard
------------------ -----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
<PAGE>
RESORTS TECHNOLOGIES, INC.
ATTEST: /s/ Donna Godish By: /s/ Christopher E. Howard
------------------ -----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
RESORT SOFTWARE SERVICES, INC.
ATTEST: /s/ Donna Godish By: /s/ Christopher E. Howard
------------------ -----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
MOUNTAINSIDE
ATTEST: /s/ Donna Godish By: /s/ Christopher E. Howard
------------------ -----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
SUGARTECH
ATTEST: /s/ Donna Godish By: /s/ Christopher E. Howard
------------------ -----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
PICO SKI AREA MANAGEMENT COMPANY
ATTEST: /s/ Donna Godish By: /s/ Christopher E. Howard
------------------ -----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
<PAGE>
Additional Guarantors
BLUNDER BAY DEVELOPMENT CO.
ATTEST: /s/ Donna Godish By: /s/ Christopher E. Howard
------------------ -----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
ASC LEASING, INC.
ATTEST: /s/ Donna Godish By: /s/ Christopher E. Howard
------------------ -----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
ORLANDO RESORT CORPORATION
ATTEST: /s/ Donna Godish By: /s/ Christopher E. Howard
------------------ -----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
ASC TRANSPORTATION, INC.
ATTEST: /s/ Donna Godish By: /s/ Christopher E. Howard
------------------ -----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
ASC UTAH
ATTEST: /s/ Donna Godish By: /s/ Christopher E. Howard
------------------ -----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
STEAMBOAT DEVELOPMENT CORPORATION
ATTEST: /s/ Donna Godish By: /s/ Christopher E. Howard
------------------ -----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
STEAMBOAT SKI & RESORT CORPORATION
ATTEST: /s/ Donna Godish By: /s/ Christopher E. Howard
------------------ -----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
HEAVENLY CORPORATION
ATTEST: /s/ Donna Godish By: /s/ Christopher E. Howard
------------------ -----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
HEAVENLY VALLEY LIMITED PARTNERSHIP
By: HEAVENLY CORPORATION,
its general partner
ATTEST: /s/ Donna Godish By: /s/ Christopher E. Howard
------------------ -----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
HEAVENLY SKI & RESORT CORPORATION
ATTEST: /s/ Donna Godish By: /s/ Christopher E. Howard
------------------ -----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
ATTEST: Unable to read By:/s/ Louis P. Young
Name: Louis P. Young
Title: Vice President
<PAGE>
Annex I
EXHIBIT C
GUARANTORS
1. Sunday River Skiway Corporation
2. Sunday River Ltd.
3. Perfect Turn, Inc.
4. L.B.O. Holding, Inc.
5. Sunday River Transportation, Inc.
6. Sugarbush Resort Holdings, Inc.
7. Sugarbush Leasing Company
8. Sugarbush Restaurant, Inc.
9. AJT, Inc.
10. S-K-I Limited
11. Killington Ltd.
12. Mount Snow Ltd.
13. WVSAL, Inc.
14. Sugarloaf Mountain Corporation
15. Killington Restaurants, Inc.
16. Dover Restaurants, Inc.
17. Resorts Technologies, Inc.
18. Resort Software Services, Inc.
19. Mountain Wastewater Treatment, Inc.
20. Grand Summit Resort Properties, Inc.
21. Mountainside
22. Sugartech
23. Pico Ski Area Management Company
24. American Skiing Company Resort Properties, Inc.
25. The Canyons Resort Properties, Inc.
26. Steamboat Resort Properties, Inc.
27. Heavenly Properties, Inc.
28. Sugarloaf Resort Properties, Inc.
29. Killington Resort Properties, Inc.
30. Mount Snow Resort Properties, Inc.
31. Sugarbush Resort Properties, Inc.
32. Sunday River Resort Properties, Inc.
33. Attitash Resort Properties, Inc.
34. Blunder Bay Development Co.
35. ASC Leasing, Inc.
36. Orlando Resort Corporation
37. ASC Transportation, Inc.
38. ASC Utah
39. Steamboat Development Corporation
40. Steamboat Ski & Resort Corporation
41. Heavenly Corporation
42. Heavenly Valley Limited Partnership
43. Heavenly Ski & Resort Corporation
SUBSIDIARY GUARANTEE
SUBSIDIARY GUARANTEE (this "Subsidiary Guarantee"), dated as of October
6, 1999, among the Guarantors listed on the signature pages hereof (the
"Guarantors"), each of which is a party to the Fourth Supplemental Indenture
dated the date hereof, among American Skiing Company (the "Company"), the
Guarantors and the other guarantors named therein and the United States Trust
Company of New York (the "Fourth Supplemental Indenture"). Unless otherwise
indicated, capitalized terms used herein have the meanings given to such terms
in the Indenture, dated as of June 28, 1996, as amended by the First
Supplemental Indenture, dated as of November 11, 1997, among ASC East, Inc., the
guarantors listed therein and the Trustee, the Second Supplemental Indenture,
dated as of September 4, 1998, among ASC East, Inc., the guarantors listed
therein and the Trustee, the Third Supplemental Indenture, dated as of August 6,
1999, among ASC East, Inc., the guarantors listed therein and the Trustee, and
the Fourth Supplemental Indenture (as so amended and supplemented, the
"Indenture").
Each of the Guarantors hereby, jointly and severally, unconditionally
guarantees to each Holder of a Note authenticated and delivered by the Trustee
and to the Trustee and its successors and assigns, irrespective of the validity
and enforceability of this Indenture, the Notes or the obligations of the
Company hereunder or thereunder, that: (a) the principal of and premium,
interest and Liquidated Damages, if any, on the Notes will be promptly paid in
full when due, whether at maturity, by acceleration, redemption or otherwise,
and interest on the overdue principal of, premium and interest and Liquidated
Damages on the Notes, if any, if lawful, and all other obligations of the
Company to the Holders or the Trustee hereunder or thereunder will be promptly
paid in full or performed, all in accordance with the terms hereof and thereof;
and (b) in case of any extension of time of payment or renewal of any Notes or
any of such other obligations, that 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. Failing payment when due of
any amount so guaranteed or any performance so guaranteed for whatever reason,
the Guarantors will be jointly and severally obligated to pay the same
immediately.
The obligations of the Guarantors to the Holders of Notes and to the
Trustee pursuant to this Subsidiary Guarantee and the Indenture are expressly
set forth in Article 11 of the Indenture, and reference is hereby made to such
Indenture for the precise terms of this Subsidiary Guarantee. The terms of
Article 11 of the Indenture are incorporated herein by reference.
This is a continuing Subsidiary Guarantee and shall remain in full
force and effect and shall be binding upon each Guarantor and its respective
successors and assigns to the extent set forth in the Indenture until full and
final payment of all of the Company's Obligations under the Notes and the
Indenture and shall inure to the benefit of the successors and assigns of the
Trustee and the Holders of the Notes and, in the event of any transfer or
assignment of rights by any Holder of Notes or the Trustee, the rights and
privileges herein conferred upon that party shall automatically extend to and be
vested in such transferee or assignee, all subject to the terms and conditions
hereof. This a Subsidiary Guarantee of payment and not a guarantee of
collection.
In certain circumstances more fully described in the Indenture, any
Guarantor may be released from its liability under this Subsidiary Guarantee,
and any such release will be effective whether or not noted hereon.
This Subsidiary Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Note upon which this
Subsidiary Guarantee is noted shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized officers.
For purposes hereof, each Guarantor's liability will be that amount
from time to time equal to the aggregate liability of such Guarantor hereunder,
but shall be limited to the lesser of (i) the aggregate amount of the
Obligations of the Company under the Notes and the Indenture and (ii) the
amount, if any, which would not have (A) rendered such Guarantor "insolvent" (as
such term is defined in the federal Bankruptcy Law and in the Debtor and
Creditor Law of the State of New York) or (B) left it with unreasonably small
capital at the time its Guarantee of the Notes was entered into, after giving
effect to the incurrence of existing Indebtedness immediately prior to such
time; provided that, it shall be a presumption in any lawsuit or other
proceeding in which such Guarantor is a party that the amount guaranteed
pursuant to its Subsidiary Guarantee is the amount set forth in clause (i) above
unless any creditor, or representative of creditors of such Guarantor, or debtor
in possession or trustee in bankruptcy of such Guarantor, otherwise proves in
such a lawsuit that the aggregate liability of such Guarantor is limited to the
amount set forth in clause (ii). In making any determination as to the solvency
or sufficiency of capital of a Guarantor in accordance with the previous
sentence, the right of such Guarantor to contribution from other Guarantors and
any other rights such Guarantor may have, contractual or otherwise, shall be
taken into account.
THIS SUBSIDIARY GUARANTEE 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.
This Subsidiary Guarantee 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.
BLUNDER BAY DEVELOPMENT CO.
By: /s/ Christopher E. Howard
-----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
ASC LEASING, INC.
By: /s/ Christopher E. Howard
-----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
<PAGE>
ORLANDO RESORT CORPORATION
By: /s/ Christopher E. Howard
-----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
ASC TRANSPORTATION, INC.
By: /s/ Christopher E. Howard
-----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
ASC UTAH
By: /s/ Christopher E. Howard
-----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
STEAMBOAT DEVELOPMENT CORPORATION
By: /s/ Christopher E. Howard
-----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
STEAMBOAT SKI & RESORT CORPORATION
By: /s/ Christopher E. Howard
-----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
<PAGE>
HEAVENLY CORPORATION
By: /s/ Christopher E. Howard
-----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
HEAVENLY VALLEY LIMITED PARTNERSHIP
By: HEAVENLY CORPORATION
its general partner
By: /s/ Christopher E. Howard
-----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
HEAVENLY SKI & RESORT CORPORATION
By: /s/ Christopher E. Howard
-----------------------------------
Name: Christopher E. Howard
Title: Executive Vice President
UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
By: /s/ Louis P. Young
--------------------------------
Name: Louis P. Young
Title: Vice President
