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.


 


2

















 


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.


 


3

















 


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:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  L.E.O.
  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

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WELLS FARGO
  BANK, NATIONAL ASSOCIATION, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WELLS 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:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WELLS FARGO
  BANK, NATIONAL ASSOCIATION, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  [ILLEGIBLE]

  	
   

  
	
   

  	
   

  	
  Title:  VP

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WELLS 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:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WELLS FARGO
  BANK, NATIONAL ASSOCIATION, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WELLS 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/ Susan
  Lee

  	
   

  
	
   

  	
   

  	
  Title: SUSAN
  LEE

  	
   

  
	
   

  	
   

  	
  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/ Susan
  Lee

  	
   

  
	
   

  	
   

  	
  Title: SUSAN
  LEE

  	
   

  
	
   

  	
   

  	
  Authorized
  Agent

  	
   

  
	
   

  	
   

  



 


11

















 


	
   

  	
  VAN KAMPEN
  PRIME RATE INCOME TRUST, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  	
  By:  Van Kampen Investment Advisory Corp.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Darvin D.
  Pierce

  	
   

  
	
   

  	
   

  	
  Title:  /s/ DARVIN D. PIERCE

  	
   

  
	
   

  	
   

  	
  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

















 


	
   

  	
  VAN KAMPEN
  PRIME RATE INCOME TRUST, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  	
  By:  Van Kampen Investment Advisory Corp.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GLENEAGLES
  TRADING LLC, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ DIANA L
  MUSHILL

  	
   

  
	
   

  	
   

  	
  Title:  DIANA L MUSHILL

  ASST. VICE PRESIDENT

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SRV-HIGHLAND,
  INC., as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ DIANA L
  MUSHILL

  	
   

  
	
   

  	
   

  	
  Title:  DIANA L MUSHILL

  ASST. VICE PRESIDENT

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LONG LANE
  MASTER TRUST IV, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


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