FIRST MODIFICATION AGREEMENT
Exhibit 10.9
This FIRST MODIFICATION AGREEMENT (the “Agreement”) is made and entered into as of the 30th
day of June, 2009 (the “Effective Date”), by and between PEAK RESORTS, INC., a Missouri corporation
(“Peak”), MOUNT SNOW, LTD., a Vermont corporation (“Mount Snow”, and together with
Peak, collectively, the “Borrower”) and EPT MOUNT SNOW, INC., a Delaware corporation
(“Lender”).
RECITALS
A. The Lender has previously extended a loan to the Borrower in the amount of
to Fifty Seven Million Eight Hundred Thousand Dollars ($57,800,000.00) (the
“Loan”) for the purpose of paying certain approved costs and expenses of Peak
in connection with the acquisition and development of Mt. Snow.
B. The Loan terms of the Loan are set forth in that certain Loan Agreement dated
April 4, 2007 by and between Lender and Borrower (the “Loan Agreement”).
C. The Loan is evidenced by a Promissory Note (Mount Snow Ski Resort) from
Borrower dated April 4, 2007 in favor of Lender in the original principal amount of
Fifty-Seven Million Eight Hundred Thousand Dollars ($57,800,000.00) (the “Original
Note”).
D. Borrower has requested, and Lender has agreed, subject to the terms and
conditions in this Agreement, to increase the Loan by One Million Two Hundred Thousand
Dollars ($1,200,000.00) (the “Additional Loan Proceeds”).
E. Concurrently herewith the Original Note is being amended and restated in its
entirety pursuant to an Amended and Restated Promissory Note (Mount Snow Ski Resort)
from Borrower of even date herewith in favor of Lender in the principal amount of Fifty
Nine Million Dollars ($59,000,000.00) (the “Amended and Restated Note”).
NOW THEREFORE, the Lender and the Borrower, for good, sufficient and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, agree as follows:
1. Recitals. The foregoing recitals are hereby incorporated by reference.
Capitalized terms used but not otherwise defined herein shall have the meaning given in the Loan
Agreement.
2. Modifications to the Loan Agreement. The “Note”, as such term is defined in
Section 2.1(a) of the Loan Agreement shall mean the Amended and Restated Note, together with any
and all extensions, modifications, substitutions, replacements or renewals thereof and judgments in
enforcement thereof.
3. Borrowing of Additional Loan Proceeds. Borrower may request and Lender may agree
to lend the Additional Loan Proceeds requested by Borrower from time to time upon fifteen (15) days
advance written notice to the Lender which amounts, when added to all amounts previously borrowed
under the Amended and Restated Note, shall not exceed
$59,000,00.00 (an “Additional Loan
Advance”). The Borrower may make its written requests for an Advance of Additional Loan
Proceeds to Lender from time to time and at any time on or before the Maturity Date, and in
response Lender may, in its sole and absolute discretion, make future Additional Loan Advances of
the Additional Loan Proceeds to the Borrower within fifteen (15) days of each such request. The
Additional Loan Proceeds are to be used exclusively for in connection with Borrower’s application
for Chapter 250 Land Use Permit with respect to the Project and other uses approved by Lender in
writing.
4. Lien Modification of Other Loan Documents. Each of the other Loan Documents is
hereby modified such that references to the Original Note shall mean henceforth refer to the
Amended and Restated Note, together with any and all extensions, modifications, substitutions,
replacements or renewals thereof and judgments in enforcement thereof and the Loan Agreement. All
references in the Loan Documents to the “Loan Agreement” shall mean the Loan Agreement as modified
by this Agreement.
5. No Other Modifications. Except as expressly set forth herein, or necessary to
incorporate the modifications and amendments herein, all the terms and conditions of the Loan
Documents shall remain unmodified and in full force and effect, and Borrower confirms and ratifies
all such documents and agrees to perform and comply with the terms and conditions of the Loan
Documents, as modified herein.
6. Conditions Precedent. It shall be a condition precedent to the effectiveness of
this Agreement that (i) Borrower shall have delivered evidence of its authority to enter into this
Agreement as well as the capacity of the individuals executing this Agreement on its behalf; (ii)
no event of default shall exist under the Note, the Loan Agreement or any other Loan Document; and
(iii) Borrower shall have delivered such other items to the Lender as it may reasonably request.
7. Representations and Warranties. The Borrower hereby represents and warrants that
(i) it has the authority to enter into this Agreement and, upon execution by the Borrower, this
Agreement shall be an enforceable obligation of the Borrower, (ii) there have been no amendments or
modifications to the Borrower’s organizational documents since such documents were certified and/or
delivered to the Lender in connection with the closing of the Loan and (iii) to Borrower’s
knowledge, no default or Event of Default currently exists under the Loan Documents.
8. No Impairment. Nothing in this Agreement shall be deemed to or shall in any manner
prejudice or impair the Loan Documents. This Agreement shall not be deemed to be nor shall it
constitute any alteration, waiver, annulment or variation of the liens and encumbrances of the Deed
of Trust, or the terms and conditions of or any rights, powers, or remedies under the Loan
Documents, except as expressly set forth herein.
9. Applicable Law. This Agreement shall be governed by and construed in accordance
with the internal laws of the State of Missouri.
10. Binding Agreement. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns.
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11. Waiver of Claims and Defenses. The Borrower acknowledges, as of the execution
date of this Agreement, its obligation for full payment of the amount outstanding under the Note
hereby
waives and releases any and all claims, defenses or rights of set-off, known or unknown,
existing as of the execution date, which may diminish its obligation of repayment under the Note or
which in any manner arise out of or relate to any Loan Document.
12. Counterparts. This Agreement may be executed in separate counterparts and all
such counterparts when combined shall constitute one agreement.
13. NO ORAL AGREEMENTS. ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT
OR TO FOREBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT
ARE NOT ENFORCEABLE, REGARDLESS OF THE LEGAL THEORY UPON WHICH IT IS BASED THAT IS ANY WAY RELATED
TO THE CREDIT AGREEMENT. TO PROTECT YOU, BORROWER, AND US, LENDER, FROM MISUNDERSTANDING OR
DISAPPOINTED, ANY AGREEMENTS WE REACH COVERING SUCH MATTERS AND CONTAINED IN THIS WRITING, WHICH IS
THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN
WRITING TO MODIFY IT.
[Signatures appear on next page]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day
and year first above written.
“LENDER” | ||||||
EPT MOUNT SNOW, INC., | ||||||
a Delaware corporation | ||||||
By: | /s/ Xxxxxxx X. Xxxxxxx
|
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Xxxxxxx X. Xxxxxxx, Vice President | ||||||
“BORROWER” | ||||||
PEAK RESORTS, INC., | ||||||
a Missouri corporation | ||||||
By: | /s/ Xxxxxxx X. Xxxxxxx
|
|||||
Xxxxxxx X. Xxxxxxx, Vice-President | ||||||
MOUNT SNOW, LTD., | ||||||
a Vermont corporation | ||||||
By: | /s/ Xxxxxxx X. Xxxxxxx
|
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Xxxxxxx X. Xxxxxxx, Vice-President |
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