EXHIBIT 10.87
HAZARDOUS MATERIALS INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT is entered into as of August 30, 1996 by
and among AMERICAN SKIING COMPANY, a Maine corporation ("American Ski"), SUNDAY
RIVER SKIWAY CORPORATION, a Maine corporation ("SRSC"), SUNDAY RIVER LTD., a
Maine corporation ("SRL"), PERFECT TURN, INC., a Maine corporation ("PTI"),
SUNDAY RIVER TRANSPORTATION INC., a Maine corporation ("SRT"), LBO HOLDING,
INC., a Maine corporation ("LBOH"), CRANMORE, INC., a Maine corporation
("Cranmore"), SUGARBUSH RESORT HOLDINGS INC., a Vermont corporation
("Sugarbush"), SUGARBUSH LEASING COMPANY, a Vermont corporation ("SLC"),
SUGARBUSH RESTAURANTS, INC., a Vermont corporation ("SRI"), S-K-I LTD., a
Delaware corporation ("S-K-I"), KILLINGTON, LTD., a Vermont corporation, MOUNT
SNOW LTD., a Vermont corporation, WATERVILLE VALLEY SKI AREA LTD., a New
Hampshire corporation ("Waterville Valley"), PICO SKI AREA MANAGEMENT COMPANY, a
Vermont corporation, RESORT SOFTWARE SERVICES, INC., a Vermont corporation,
KILLINGTON RESTAURANTS, INC., a Vermont corporation, RESORTS TECHNOLOGIES, INC.,
a Vermont corporation, DOVER RESTAURANTS, INC., a Vermont corporation, and
DEERFIELD OPERATING COMPANY, a Vermont corporation, SUGARLOAF MOUNTAIN
CORPORATION, a Maine corporation, SUGARTECH, a Maine corporation, MOUNTAINSIDE,
a Maine corporation and MOUNTAIN WASTEWATER TREATMENT, INC., a Vermont
corporation (each a "Borrower" and collectively, the "Borrowers"), and FLEET
NATIONAL BANK, a national banking association, as Agent for the lenders from
time to time party to the Credit Agreement referred to below (the "Agent").
Recitals
Pursuant to that certain Credit Agreement dated as of June 28, 1996 (as
amended, modified or supplemented, the "Credit Agreement") among the Borrowers,
the Lenders from time to time party thereto (the "Lenders") and the Agent, the
Borrowers, jointly and severally, have arranged for a $65,000,000 reducing
revolving credit facility (the "Credit Facility") financed by the Lenders. As a
material inducement to Lenders' financing the Credit Facility, the Borrowers
have covenanted to provide the indemnities described herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do hereby agree
as follows:
ARTICLE 1. DEFINITIONS
For the purposes of this Agreement, the following words and phrases shall
have the following meanings:
"Environment" means soil, surface waters, groundwaters, land, stream
sediments,
surface or subsurface strata, ambient air, and any environmental medium.
"Environmental Law" means any judgment, decree, order, common law rule,
statute, act, law, code, ordinance, permit, license, rule or regulation
pertaining to environmental matters, or any federal, state, county or local
statute, regulation, code, ordinance, order or decree relating to public health,
welfare, the environment, or to the storage, handling, treatment,
transportation, use or generation of hazardous materials in or at the workplace,
or to worker health or safety, whether now existing or hereafter enacted.
"Hazardous Material" means any pollutant, contaminant, toxic substance,
chemical substance or mixture, hazardous waste, hazardous material, or hazardous
substance, or any oil, petroleum, or petroleum product, as defined in or
pursuant to the Resource Conservation and Recovery Act, as amended, the
Comprehensive Environmental Response, Compensation, and Liability Act, as
amended, the Superfund Amendment and Reauthorization Act, as amended, the
Federal Clean Water Act, as amended, the Hazardous Materials Transportation Act,
as amended, the Toxic Substances Control Act, as amended, any regulations
promulgated under these Acts, or any other Environmental Law.
"Indemnitees" means Lenders, Agent, and Lenders' and Agent's respective
parents, subsidiaries, affiliates, shareholders, directors, officers, employees
and agents, and the successors and assigns of any of them.
"Permit" means any permit, license, approval, consent, or authorization
issued by a federal, state, or local governmental entity under any Environmental
Law.
"Release" means any releasing, spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, disposing, or
dumping of any Hazardous Material into the Environment, or the uncontained
presence of any Hazardous Material in the Environment.
"Threat of Release" means a substantial likelihood of a Release which
requires action to prevent or mitigate damage to the Environment which may
result from such Release.
ARTICLE 2. BORROWERS' INDEMNITIES
Section 2.1. The Borrowers, jointly and severally, agree to
indemnify and hold harmless Indemnitees against and in respect of any and all
damages, losses, liabilities, expenses, costs, claims, actions, suits,
proceedings, assessments, orders, judgments, fines, and penalties (including,
without limitation, reasonable legal, accounting, consulting, engineering, and
other expenses), which may be incurred by any of the Indemnitees, or imposed
upon or asserted against any of the Indemnitees by any other party or parties
(including, without limitation, a governmental entity), arising out of, in
connection with, or
2
relating to the subject matter of: (a) conditions, circumstances, or occurrences
which constitute or result in a breach of any of the representations,
warranties, and obligations set forth in Section 5.17 of the Credit Agreement or
relating to any matter or thing covered by any such representation, warranty, or
obligation; (b) any actual or alleged violation of an Environmental Law
occurring at any time with respect to any property owned or operated by any
Borrower, formerly owned or operated by any Borrower or subsequently owned or
operated by any Borrower (collectively the "Sites") or any facility or
improvement or any operation or activity thereon or any other property owned or
operated by any Borrower; (c) the actual or alleged presence of any Hazardous
Material on, in, under, adjacent to, emanating from, or affecting the Sites or
any other property now, subsequently or formerly owned or operated by any
Borrower; or (d) any liability that may be incurred as a result of any
Borrower's, or of a predecessor of any Borrower's, generation of Hazardous
Materials. Any such damage, loss, liability, expense, cost, claim, action, suit,
proceeding, assessment, order, judgment, fine, or penalty is hereinafter
referred to as an "Environmental Liability"; provided, however, that the
Borrowers shall not be obligated to indemnify or hold harmless any Indemnitee
for any matter to the extent that the Indemnitee's liability for the same is due
to the Indemnitee's gross negligence or willful misconduct.
Section 2.2. The Borrowers shall be given prompt written notice
after any Environmental Liability, with respect to which indemnification is to
be claimed hereunder, comes to the attention of Lender. Notwithstanding the
prior sentence, the Borrowers shall not be relieved of their obligations under
this agreement if the Agent's or a Lender's failure to notify Borrowers of an
Environmental Liability does not prejudice the Borrowers' rights or materially
increase their liabilities and obligations hereunder.
ARTICLE 3. MISCELLANEOUS
Section 3.1.Notices. All notices and other communications made or required
to be given pursuant to this Agreement shall be in writing and shall be mailed
by United States mail, postage prepaid, or sent by hand, by telecopy or by
nationally-recognized overnight carrier service, addressed as follows:
(a) If to the Agent, at Xxx Xxxxxxx Xxxxxx, Xxxxxx, XX, 00000
Telecopier No. (000) 000-0000, Attention: Xx. Xxxxx X. Xxxxxxxxx, Vice
President, with a copy to: Xxxxxxx, Procter & Xxxx XXX, Xxxxxxxx Xxxxx, Xxxxxx,
XX 00000, Telecopier No. 000-000-0000, Attention: Xxxxxx Xxxxxx Xxxxxx, Xx.,
P.C. or at such other address(es) or to the attention of such other Person(s) as
the Agent shall from time to time designate in writing to the Borrowers and the
Lenders.
(b) If to the Borrowers, c/o American Skiing Company, X.X. Xxx 000,
Xxxxxx, XX 00000, or for overnight delivery service, Sunday River Road, Newry,
ME, Telecopier No. 000-000-0000, Attention: Xxxxxx X. Xxxxx/Xxxxxx X.
Xxxxxxxxxx/Xxxxx Xxxxxxxx, or at such other address(es) or to the attention of
such other Person(s) as the
3
Borrowers shall from time to time designate in writing to the Agent and the
Lenders.
(c) If to any Lender, at the address(es) and to the attention of the
Person(s) specified in the Credit Agreement or in an Assignment and Acceptance
Agreement executed by a Successor Lender, or at such other address(es) and to
the attention of such other Person(s) as any Lender shall from time to time
designate in writing to the Agent and the Borrowers.
Any notice so addressed and mailed by registered or certified mail shall
be deemed to have been given when mailed. Any notice so addressed and sent by
hand, by telecopy or by overnight carrier service shall be deemed to have been
given when received.
A notice from the Agent stating that it has been given on behalf of the
Lenders shall be relied upon by the Borrowers as having been given by the
Lenders.
Section 3.2.Entire Agreement. This Agreement, the Credit Agreement
and the other Lender Agreements and documents contemplated by the Credit
Agreement contain the entire understanding between the parties and supersede any
prior understanding and agreements between them with respect to the subject
matter hereof.
Section 3.3.Governing Law; Consent to Jurisdiction. This Agreement
shall be governed by and construed and enforced under the laws of The
Commonwealth of Massachusetts. Each Borrower hereby irrevocably submits itself
to the non-exclusive jurisdiction of the courts of The Commonwealth of
Massachusetts and to the non-exclusive jurisdiction of any Federal court of the
United States located in the District of Massachusetts for the purpose of any
suit, action or other proceeding arising out of this Agreement or any other
Lender Agreement or any of the transactions contemplated hereby or thereby.
Section 3.4.Counterparts. This Agreement and all amendments to this
Agreement may be executed in several counterparts, each of which shall be an
original. The several counterparts shall constitute a single Agreement.
Section 3.5.Expenses. The Borrowers agree, jointly and severally, to
pay, on demand, all of the Agent's reasonable expenses in preparing, executing,
delivering and administering this Agreement, all related instruments and
documents and any requested amendment, waiver or consent relating hereto or
thereto, including, without limitation, the reasonable fees and out-of-pocket
expenses of the Agent's third-party consultants, special counsel, Xxxxxxx,
Procter & Xxxx LLP, and local counsel in each jurisdiction in which any Borrower
has assets and the Agent's and Lenders' expenses in connection with periodic
audits of any Borrower. The Borrowers also agree, jointly and severally, to pay,
on demand, all reasonable out-of-pocket expenses incurred by the Agent and the
Lenders, including, without limitation, reasonable legal, accounting and
third-party consultant fees, in connection with the collection of amounts due
hereunder upon the occurrence of a Default under the Credit Agreement, the
revision, protection or enforcement of any of the Agent's or
4
the Lenders' rights against the Borrowers under this Agreement, and the
administration of special problems that may arise under this Agreement. The
Borrowers also agree to pay all stamp and other taxes in connection with the
execution and delivery of this Agreement and related instruments and documents.
Section 3.6. Confidentiality. The Agent agrees to keep all
information obtained pursuant to this Agreement confidential in a manner
consistent with the provisions of the Credit Agreement.
IN WITNESS WHEREOF, the Borrowers and the Agent have caused this Hazardous
Materials Indemnification Agreement to be executed by their duly authorized
officer as of the date set forth above.
AMERICAN SKIING COMPANY
SUNDAY RIVER SKIWAY CORPORATION
SUNDAY RIVER LTD.
PERFECT TURN, INC.
SUNDAY RIVER TRANSPORTATION INC.
LBO HOLDING, INC.
CRANMORE, INC.
SUGARBUSH RESORT HOLDINGS INC.
SUGARBUSH LEASING COMPANY
SUGARBUSH RESTAURANTS, INC.
S-K-I LTD.
KILLINGTON, LTD.
MOUNT SNOW LTD.
WATERVILLE VALLEY SKI AREA LTD.
PICO SKI AREA MANAGEMENT COMPANY
RESORT SOFTWARE SERVICES, INC.
KILLINGTON RESTAURANTS, INC.
RESORTS TECHNOLOGIES, INC.
DOVER RESTAURANTS, INC.
DEERFIELD OPERATING COMPANY
SUGARLOAF MOUNTAIN COPRORATION
SUGARTECH
MOUNTAINSIDE
MOUNTAIN WASTEWATER TREATMENT,
INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Treasurer
5
FLEET NATIONAL BANK, as Agent
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------
Name:
Title:
6
