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
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Name: Christopher E. Howard
Title: Executive Vice President
ASC LEASING, INC.
By: /s/ Christopher E. Howard
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Name: Christopher E. Howard
Title: Executive Vice President
ORLANDO RESORT CORPORATION
By: /s/ Christopher E. Howard
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Name: Christopher E. Howard
Title: Executive Vice President
ASC TRANSPORTATION, INC.
By: /s/ Christopher E. Howard
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Name: Christopher E. Howard
Title: Executive Vice President
ASC UTAH
By: /s/ Christopher E. Howard
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Name: Christopher E. Howard
Title: Executive Vice President
STEAMBOAT DEVELOPMENT CORPORATION
By: /s/ Christopher E. Howard
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Name: Christopher E. Howard
Title: Executive Vice President
STEAMBOAT SKI & RESORT CORPORATION
By: /s/ Christopher E. Howard
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Name: Christopher E. Howard
Title: Executive Vice President
HEAVENLY CORPORATION
By: /s/ Christopher E. Howard
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Name: Christopher E. Howard
Title: Executive Vice President
HEAVENLY VALLEY LIMITED PARTNERSHIP
By: HEAVENLY CORPORATION
its general partner
By: /s/ Christopher E. Howard
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Name: Christopher E. Howard
Title: Executive Vice President
HEAVENLY SKI & RESORT CORPORATION
By: /s/ Christopher E. Howard
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Name: Christopher E. Howard
Title: Executive Vice President
UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
By: /s/ Louis P. Young
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Name: Louis P. Young
Title: Vice President