NINTH AMENDMENT TO THE AMENDED, RESTATED AND CONSOLIDATED CREDIT AGREEEMENT

Exhibit 4.26

 

NINTH AMENDMENT TO THE

AMENDED, RESTATED AND CONSOLIDATED CREDIT AGREEEMENT

 

NINTH AMENDMENT dated as of January 7, 2003 (this “Amendment”) with respect to the Amended, Restated and Consolidated Credit Agreement dated as of October 12, 1999 (as amended, the “Credit Agreement”) by and among American Skiing Company (“American Ski”) and the other borrowers party thereto (collectively, the “Borrowers”), the lenders party thereto (the “Lenders”) and Fleet National Bank, N.A. (formerly known as BankBoston, N.A.), as agent (the “Agent”).

 

W I T N E S S E T H:

 

WHEREAS, pursuant to the Credit Agreement, the Lenders have made Loans and other financial accommodations to the Borrowers which remain outstanding; and

 

WHEREAS, the Borrowers have requested that the Agent and the Lenders amend the Credit Agreement as set forth herein, and the Agent and the Lenders are willing to do so, but only on the terms and conditions set forth herein:

 

NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:

 

ARTICLE I

DEFINITIONS

 

Section 1.1. Defined Terms.  Unless otherwise defined herein, capitalized terms used herein have the meanings assigned in the Credit Agreement (as amended by this Amendment).

 

ARTICLE II

AMENDMENTS

 

Section 2.1. Amendment to Section 6.1 (Interim Financial Statements and Reports). Section 6.1(a) of the Credit Agreement is hereby amended by deleting the dates “January 12, 2003” each time they appear and inserting in lieu thereof the dates “February 28, 2003”.

 

Section 2.2. Amendment to Section 6.2 (Annual Financial Statements). Section 6.2 of the Credit Agreement is hereby amended by deleting the date “January 12, 2003” and inserting in lieu thereof the date “February 28, 2003”.

 

 

ARTICLE III

CLOSING DATE

 

Section 3.1 Closing Date. This Amendment shall become effective as of the date hereof upon receipt by the Agent of (a) counterparts of this Amendment, duly executed and delivered by the Borrowers, the Agent and the Lenders and (b) payment in full in cash of the invoiced and unpaid fees and expenses of the Agent’s professionals as of the date hereof.

 

ARTICLE IV

INTERPRETATION

 

Section 4.1 Continuing Effect of the Credit Agreement. The Borrowers, the Agent and each Lender hereby acknowledges and agrees that the Credit Agreement shall continue to be and shall remain unchanged and in full force and effect in accordance with its terms, except as expressly modified hereby.

 

Section 4.2. No Waiver. Nothing contained in this Amendment shall be construed or interpreted or is intended as a waiver of any Default or Event of Default or of any rights, powers, privileges or remedies that the Agent or the Lenders have or may have under the Credit Agreement, any other related document or applicable law on account of such Default or Event of Default.

 

ARTICLE V

MISCELLANEOUS

 

Section 5.1. Representations and Warranties. The Borrowers hereby represent and warrant as of the date hereof that, after giving effect to this Amendment, (a) no Default or Event of Default has occurred and is continuing, and (b) all representations and warranties of the Borrowers contained in the Credit Agreement are true and correct in all material respects with the same effect as if made on and as of such date.

 

Section 5.2. Payment of Fees and Expenses. The Borrowers hereby agree to pay or reimburse the Agent on demand for all its reasonable out-of-pocket costs and expenses incurred in connection with the preparation and execution of this Amendment, including, without limitation, the reasonable fees and disbursements of counsel to the Agent.

 

Section 5.3., Counterparts. This Amendment may be executed by the parties hereto in any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument.

 

Section 5.4. GOVERNING LAW.  THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE COMMONWEALTH OF MASSACHUSETTS.

 

Section 5.5. Reservation of Rights. Notwithstanding anything contained in this Amendment, the Borrowers acknowledge that the Agent and the Lenders do not waive, and expressly reserve, the right to exercise, at any time, any and all of their rights and remedies under the Credit Agreement, any other related document and applicable law on account of any Default or Event of Default.

 

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Section 5.6. Confirmation of Indebtedness. The Borrowers hereby confirm and acknowledge that, as of the Closing Date, (i) the Borrowers are truly and justly indebted to the Lenders, without defense, counterclaim or offset of any kind and (ii) the Borrowers are liable to the Lenders in respect of Loans in the aggregate principal amount of $45,303,881,50 plus outstanding Letters of Credit in an aggregate amount equal to $4,140,810.

 

Section 5.7. Waiver. The Borrowers hereby release, waive, and forever relinquish all claims, demands, obligations, liabilities and causes of action of whatever kind or nature, whether known or unknown, which any of them have, may have, or might assert at the time of execution of this Amendment or in the future against the Agent, the Lenders and/or their respective parents, affiliates, participants, officers, directors, employees, agents, attorneys, accountants, consultants, successors and assigns (collectively, the “Lender Group”), directly or indirectly, which occurred, existed, was taken, permitted or begun prior to the execution of this Amendment, arising out of, based upon, or in any manner connected with (i) any transaction, event, circumstance, action, failure to act or occurrence of any sort or type, whether known or unknown, with respect to the Credit Agreement, any other Lender Agreement and/or the administration thereof or the obligations created thereby; (ii) any discussions, commitments, negotiations, conversations or communications with respect to the refinancing, restructuring or collection of any obligations related to the Credit Agreement, any other Lender Agreement and/or the administration thereof or the obligations created thereby, or (iii) any matter related to the foregoing; provided, however, that the provisions of this Section 5.7 shall not apply to any such matters of which the Borrowers are presently unaware and which constitute or result from the gross negligence and/or willful misconduct of any member of the Lender Group.

 

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the date first above written.

 

 

	AMERICAN SKIING COMPANY
	By:	/s/ [ILLEGIBLE]
		Title:
	SUNDAY RIVER SKIWAY CORPORATION
	By:	/s/ [ILLEGIBLE]
		Title:
	SUNDAY RIVER LTD.
	By:	/s/ [ILLEGIBLE]
		Title:
	PERFECT TURN. INC.
	By:	/s/ [ILLEGIBLE]
		Title:
	SUNDAY RIVER TRANSPORTATION INC.
	By:	/s/ [ILLEGIBLE]
		Title:
	▇.▇.▇. HOLDING, INC.
	By:	/s/ [ILLEGIBLE]
		Title:
	SRH, INC.
	By:	/s/ [ILLEGIBLE]
		Title:

 

4

 

	S-K-I, LTD.
	By:	/s/ [ILLEGIBLE]
		Title:
	KILLINGTON, LTD.
	By:	/s/ [ILLEGIBLE]
		Title:
	MOUNT SNOW LTD.
	By:	/s/ [ILLEGIBLE]
		Title:
	PICO SKI AREA MANAGEMENT COMPANY
	By:	/s/ [ILLEGIBLE]
		Title:
	KILLINGTON RESTAURANTS, INC.
	By:	/s/ [ILLEGIBLE]
		Title:
	DOVER RESTAURANTS, INC.
	By:	/s/ [ILLEGIBLE]
		Title:
	SUGARLOAF MOUNTAIN CORPORATION
	By:	/s/ [ILLEGIBLE]
		Title:

 

5

 

	MOUNTAINSIDE
	By:	/s/ [ILLEGIBLE]
		Title:
	ASC UTAH
	By:	/s/ [ILLEGIBLE]
		Title:
	STEAMBOAT SKI & RESORT CORPORATION
	By:	/s/ [ILLEGIBLE]
		Title:
	HEAVENLY SKI & RESORT CORPORATION
	By:	/s/ [ILLEGIBLE]
		Title:
	HEAVENLY CORPORATION
	By:	/s/ [ILLEGIBLE]
		Title:

 

6

 

	FLEET NATIONAL BANK (successor in interest to BankBoston, N.A.), as Agent
	By:	/s/ [ILLEGIBLE]
		Title:  AUTHORIZED OFFICER
	FLEET NATIONAL BANK (successor in interest to BankBoston, N.A.), as a Lender
	By:	/s/ [ILLEGIBLE]
		Title:  AUTHORIZED OFFICER
	▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, as a Lender
	By:
		Title:
	▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, successor by merger to First Security Bank, N.A., as a Lender
	By:
		Title:
	U.S. BANK NATIONAL ASSOCIATION, as a Lender
	By:
		Title:

 

7

 

	FLEET NATIONAL BANK (successor in interest to BankBoston, N.A.), as Agent
	By:
		Title:
	FLEET NATIONAL BANK (successor in interest to BankBoston, N.A.), as a Lender
	By:
		Title:
	▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, as a Lender
	By:	/s/ [ILLEGIBLE]
		Title:  ▇▇
	▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, successor by merger to First Security Bank, N.A., as a Lender
	By:	/s/ [ILLEGIBLE]
		Title:  VP
	U.S. BANK NATIONAL ASSOCIATION, as a Lender
	By:
		Title:

 

8

 

	FLEET NATIONAL BANK (successor in interest to BankBoston, N.A.), as Agent
	By:
		Title:
	FLEET NATIONAL BANK (successor in interest to BankBoston, N.A.), as a Lender
	By:
		Title:
	▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, as a Lender
	By:
		Title:
	▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, successor by merger to First Security Bank, N.A., as a Lender
	By:
		Title:
	U.S. BANK NATIONAL ASSOCIATION, as a Lender
	By:	/s/ [ILLEGIBLE]
		Title:  Vice President

 

9

 

	KZH PAMCO LLC, as a Lender
	By:	/s/ ▇▇▇▇▇ ▇▇▇
		Title: ▇▇▇▇▇ ▇▇▇
		Authorized Agent
	KZH HIGHLAND-2 LLC, as a Lender
	By:
		Title:

 

10

 

	KZH PAMCO LLC, as a Lender
	By:
		Title:
	KZH HIGHLAND-2 LLC, as a Lender
	By:	/s/ ▇▇▇▇▇ ▇▇▇
		Title: ▇▇▇▇▇ ▇▇▇
		Authorized Agent

 

11

 

	▇▇▇ ▇▇▇▇▇▇ PRIME RATE INCOME TRUST, as a Lender
		By:  ▇▇▇ ▇▇▇▇▇▇ Investment Advisory Corp.
	By:	/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
		Title:  /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
		EXECUTIVE DIRECTOR
	GLENEAGLES TRADING LLC, as a Lender
	By:
		Title:
	SRV-HIGHLAND, INC., as a Lender
	By:
		Title:
	LONG LANE MASTER TRUST IV, as a Lender
	By:
		Title:

 

12

 

	▇▇▇ ▇▇▇▇▇▇ PRIME RATE INCOME TRUST, as a Lender
		By:  ▇▇▇ ▇▇▇▇▇▇ Investment Advisory Corp.
	By:
		Title:
	GLENEAGLES TRADING LLC, as a Lender
	By:	/s/ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
		Title:  ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ASST. VICE PRESIDENT
	SRV-HIGHLAND, INC., as a Lender
	By:	/s/ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
		Title:  ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ASST. VICE PRESIDENT
	LONG LANE MASTER TRUST IV, as a Lender
	By:
		Title:

 

13