AMENDED AND RESTATED master cross-default agreement
THIS AMENDED AND RESTATED MASTER CROSS DEFAULT AGREEMENT (“Agreement”) is dated as of January 6, 2016, by and among EPT SKI PROPERTIES, INC., a Delaware corporation (“EPT Ski”), EPT Mount Snow, Inc., a Delaware corporation (“EPT Mount Snow”), and EPT MAD RIVER, INC., a Missouri corporation (“EPT Mad River,” and together with EPT Ski and EPT Mount Snow, collectively, “EPT Properties”) and PEAK RESORTS, INC., a Missouri corporation (“Peak Resorts”), MAD RIVER MOUNTAIN, INC., a Missouri corporation (“Mad River”), MOUNT SNOW, LTD., a Vermont corporation (“Mt. Snow”), SYCAMORE LAKE, INC., an Ohio corporation (“Sycamore Lake”), DELTRECS, INC., an Ohio corporation (“Deltrecs”), BRANDYWINE SKI RESORT, INC., an Ohio corporation (“Brandywine”), BOSTON MILLS SKI RESORT, INC., an Ohio corporation (“Boston Mills”), JFBB SKI AREAS, INC., a Missouri corporation (“JFBB”), HUNTER MOUNTAIN ACQUISITION, INC., a Missouri corporation (“HMA”), HUNTER MOUNTAIN SKI BOWL INC., a New York corporation (“Hunter Ski”), HUNTER MOUNTAIN FESTIVALS, LTD., a New York corporation (“Hunter Festivals”), HUNTER MOUNTAIN RENTALS LTD., a New York corporation (“Hunter Rentals”), HUNTER RESORT VACATIONS, INC., a New York corporation (“Hunter Vacations”), HUNTER MOUNTAIN BASE LODGE, INC., a New York corporation (“Hunter Lodge”), and FROSTY LAND, INC., a New York corporation (“Frosty” and together with Peak Resorts, Mad River, Sycamore Lake, Deltrecs, Brandywine, Boston Mills, JFBB, HMA, Hunter Ski, Hunter Festivals, Hunter Rentals, Hunter Vacations, and Hunter Lodge are collectively referred to herein as the “Borrowers”), SNH DEVELOPMENT, INC., a Missouri corporation (“SNH”), L.B.O. HOLDING, INC., a Maine corporation (“LBO”), HIDDEN VALLEY GOLF AND SKI, INC., a Missouri corporation (“Hidden Valley”), SNOW CREEK, INC., a Missouri corporation (“Snow Creek”), PAOLI PEAKS, INC., a Missouri corporation (“Paoli”), and CROTCHED MOUNTAIN PROPERTIES, LLC, a New Hampshire limited liability company (“Crotched” and together with SNH, LBO, Hidden Valley, Snow Creek and Paoli, collectively referred to herein as the “Guarantors”) (Borrowers and Guarantors are collectively referred to herein as the “Debtors”).
RECITALS
| A. EPT Properties has made or is making loans, advances and extensions of credit to the Debtors, or for their benefit, and may hereafter make further loans, advances and extensions of credit to the Debtors (all loans, advances, and extensions of credit, whether made now, in the past or in the future, are hereinafter the “Loans”). The Loans are secured by, among other things, mortgages and deeds of trust, as applicable, and by assignments of leases, rents and contracts on that real property commonly described in Exhibit A (the real properties commonly described in Exhibit A are hereinafter the “Properties”). |
| B. The promissory notes evidencing the Loans have been or may be executed in multiple parts and at different times. |
| C. EPT Mad River, as landlord, and Mad River, as tenant, entered into that certain Lease Agreement dated November 15, 2005, as amended by that certain First Amendment to Lease Agreement dated June 30, 2006 and as further amended by that certain Second Amendment to Lease Agreement dated December 1, 2014 (the “Lease” and the Loans are collectively referred to herein as the “Transaction Documents”). The Transaction Documents, as same may be amended or modified from time to time, are set forth on Exhibit B attached hereto and incorporated herein. |
| D. EPT Properties is unwilling to extend the term of the Lease or continue credit to the Debtors under the Loans unless the Debtors each agree to provide additional security by cross-default of all Transaction Documents. |
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals which are incorporated herein by reference as though fully set forth and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, including the inducement of EPT Properties, or any of them, in their respective sole discretion, to extend credit to the Debtors, or any of them, it is agreed as follows:
Definitions. As used in this Agreement, the terms listed below shall have the following meaning:
Cross-Default Obligation shall mean any liability, indebtedness, or obligation of the Debtors, or any of them, to EPT Properties, or any of them, of every kind and nature, now existing or hereafter arising, whether created directly or acquired by assignment, whether matured or unmatured, whether evidenced by any lease, note, agreement, instrument, document or other evidence, including, but not limited to, those described on Exhibit B, whether or not referring to the original Security Documents or this Agreement, and any cost or expense including reasonable attorneys’ fees and expenses incurred in the collection or enforcement of any such obligation;
Security Document shall mean any existing or future agreement between the Debtors, or any of them, on the one hand, and EPT Properties, or any of them, on the other hand, which creates (or provides for) a security interest or lien in favor of EPT Properties, or any of them, in or upon any of the assets or property, tangible or intangible, real or personal, of the Debtors or any of them. Security Document shall include all mortgages, deeds of trust, security agreements, Uniform Commercial Code financing statements, assignments of leases and rents, and every other document of such character.
Lease Documents shall mean the Lease and all amendments, extensions and modifications thereto.
Cross-Default. In addition to, and not in substitution for, any provisions in any of the Security Documents or in any of the promissory notes or other agreements or documents evidencing Cross-Default Obligations, the parties hereto agree that any default
or Event of Default committed or permitted by the Debtors or any of them or otherwise occurring under any Security Document or Lease Documents shall automatically constitute a default or Event of Default under each and every one of the Security Documents and Lease Documents as if such default or Event of Default had occurred under each Security Document or Lease Documents, and shall also constitute a default of the Cross-Default Obligations as a whole, entitling EPT Properties, or any one or more of them, to all of their respective remedies under the Security Documents and Lease Documents or at law or at equity as a consequence of such default or Event of Default. The phrase “Event of Default” as used herein shall mean and refer to any meaning that such phrase may have in any of the Security Documents or Lease Documents, and the word “default” as used herein shall refer to any breach or violation of any Security Documents or Lease Documents or any of the documents evidencing the Cross-Default Obligations in the event such document does not contain a defined term “Event of Default.”
Effect on Other Agreements. This Agreement shall constitute an amendment to each of the Security Documents now or hereafter executed and shall augment and be in addition to, and shall not be in substitution for, any provision of any Security Document, Lease Documents or any document evidencing a Cross-Default Obligation, and shall not otherwise limit or affect the rights and remedies of EPT Properties, or any of them, under any such Security Document, Lease Documents or document evidencing a Cross-Default Obligation.
Future Loans and Leases. EPT Properties, or any of them, may, in their respective sole and absolute discretion, make additional loans and other financing and leasing accommodations to the Debtors, or any affiliate or subsidiary of Peak Resorts, all of which will be subject to the terms of this Agreement; provided, any additional loan, other financing or leasing accommodation by EPT Properties, or any of them, to an affiliate or subsidiary of Peak Resorts that is not a party to this Agreement shall be consented to by the parties hereto in the form of an addendum to this Agreement as substantially provided in the form attached hereto as Exhibit C. Notwithstanding anything to the contrary or apparently to the contrary in this Agreement, any future change in the terms of the Cross-Default Obligations, or any of them, shall require the prior written consent of EPT Properties.
Waiver of Trial by Jury. The Debtors each waive trial by jury in any action or proceeding brought by EPT Properties, or any of them, or in any counterclaim asserted by EPT Properties, or any of them, against the Debtors, or any of them, or in any manner connected with this Agreement or any Security Document, Lease Documents or any Cross-Default Obligation or document evidencing the same.
Notices. Any notice provided for or concerning this Agreement shall be (i) in writing, (ii) delivered by nationally recognized overnight courier which delivers only upon signed receipt of the addressee, (iii) deemed sufficiently given one (1) business day after the date of deposit with such nationally recognized overnight courier and (iv) addressed to the following addresses:
To EPT Properties: EPT Ski Properties, Inc.
c/o EPR Properties
909 Walnut Street, Suite 200
Kansas City, Missouri 64106
Attn: Asset Management
With a copy to:EPT Ski Properties, Inc.
c/o EPR Properties
909 Walnut Street, Suite 200
Kansas City, Missouri 64106
Attn: General Counsel
To Borrowers: Peak Resorts, Inc., as Debtors’ Representative
17409 Hidden Valley Drive
Eureka, MO 63025
Attn: Stephen J. Mueller
With a copy to:Sandberg Phoenix & von Gontard P.C.
120 S. Central Avenue, Suite 1420
St. Louis, MO 63105
Attn: David L. Jones
To Guarantors: Peak Resorts, Inc.
17409 Hidden Valley Drive
Eureka, MO 63025
Attn: Stephen J. Mueller
With a copy to:Sandberg Phoenix & von Gontard P.C.
120 S. Central Avenue, Suite 1420
St. Louis, MO 63105
Attn: David L. Jones
The person and place to which notice may be given may be changed from time to time by either party upon thirty (30) days prior written notice. Notice by a party’s attorney shall be deemed notice by such party.
No Other Understanding. The Debtors each acknowledge that EPT Properties has made no promises to induce execution of this Agreement and that there are no other agreements or understandings, either oral or in writing, affecting this Agreement and nothing in this Agreement shall be considered a waiver by EPT Properties of any existing or future defaults by the Debtors under any Security Document, Lease Documents or Cross-Default Obligation.
Governing Law. This Agreement and the performance hereunder shall be construed and determined in accordance with the laws of the State of Missouri.
No Waiver; Amendments; Successors and Assigns. EPT Properties’ failure to exercise any right, remedy or option under this Agreement or any supplement or other agreement or delay by EPT Properties in exercising the same will not operate as a waiver. No waiver by EPT Properties will be effective unless in writing and then only to the extent stated therein. No waiver by EPT Properties shall affect EPT Properties’ right to require strict performance of this Agreement. EPT Properties’ rights and remedies shall be cumulative and not exclusive. This Agreement cannot be modified or changed in any respect unless such change or modification is set forth in writing and signed by all parties hereto. All terms, conditions, promises, covenants, provisions and warranties shall inure to the benefit of and bind EPT Properties and the Debtors’ respective representatives, successors and assigns.
Amended and Restated. This Amended and Restated Master Cross-Default Agreement amends, renews, restates and supersedes that certain Master Cross-Default Agreement dated December 1, 2014 in favor of EPT Properties.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
