**Exhibit 4.26**

 

NINTH AMENDMENT TO THE

AMENDED, RESTATED AND CONSOLIDATED CREDITAGREEEMENT

 

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 (asamended, the *“Credit Agreement”*)by and among American Skiing Company (*“AmericanSki”*) and the other borrowers party thereto (collectively, the *“Borrowers”*), the lenders party thereto(the *“Lenders”*) and FleetNational 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 Loansand other financial accommodations to the Borrowers which remain outstanding;and

 

WHEREAS, the Borrowers have requested that the Agent and the Lendersamend the Credit Agreement as set forth herein, and the Agent and the Lendersare 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 andvaluable consideration the receipt and sufficiency of which is herebyacknowledged, the parties hereto hereby agree as follows:

 

ARTICLE I

DEFINITIONS

 

Section 1.1. *Defined Terms.* Unless otherwise defined herein, capitalizedterms used herein have the meanings assigned in the Credit Agreement (asamended by this Amendment).

 

ARTICLE II

AMENDMENTS

 

Section 2.1. *Amendment to Section6.1 (Interim Financial Statements and Reports)*. Section 6.1(a) ofthe 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 Section6.2 (Annual Financial Statements).* Section 6.2 of the CreditAgreement is hereby amended by deleting the date “January 12, 2003” andinserting in lieu thereof the date “February 28, 2003”.

 

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ARTICLE III

CLOSING DATE

 

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

 

ARTICLE IV

INTERPRETATION

 

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

 

Section 4.2.*No Waiver.*Nothing contained in this Amendment shall be construed or interpreted or isintended 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 haveunder the Credit Agreement, any other related document or applicable law onaccount of such Default or Event of Default.

 

ARTICLE V

MISCELLANEOUS

 

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

 

Section 5.2. *Payment of Fees andExpenses.* The Borrowers hereby agree to pay or reimburse the Agenton demand for all its reasonable out-of-pocket costs and expenses incurred inconnection with the preparation and execution of this Amendment, including,without limitation, the reasonable fees and disbursements of counsel to theAgent.

 

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

 

**Section 5.4. *GOVERNINGLAW.*  THIS AMENDMENT AND THERIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNEDBY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THECOMMONWEALTH OF MASSACHUSETTS.**

 

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

 

2

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

 

Section 5.7.*Waiver.* TheBorrowers 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 atthe time of execution of this Amendment or in the future against the Agent, theLenders and/or their respective parents, affiliates, participants, officers,directors, employees, agents, attorneys, accountants, consultants, successorsand assigns (collectively, the *“LenderGroup”*), 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, whetherknown or unknown, with respect to the Credit Agreement, any other LenderAgreement and/or the administration thereof or the obligations created thereby;(ii) any discussions, commitments, negotiations, conversations orcommunications with respect to the refinancing, restructuring or collection ofany obligations related to the Credit Agreement, any other Lender Agreementand/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 notapply to any such matters of which the Borrowers are presently unaware andwhich constitute or result from the gross negligence and/or willful misconductof any member of the Lender Group.

 

3

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to beduly executed and delivered by their proper and duly authorized officers as ofthe 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

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|   | 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

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|   | 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

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|   | 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

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|   | 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

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|   | 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

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|   | 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

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|   | 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

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|   | 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

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|   | 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: |   |

 

13

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