UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
(Amendment No. 1)
(Mark One)
☒
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended April 30, 2016.
OR
☐
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from to .
Commission file number 001-35363
Peak Resorts, Inc.
(Exact name of registrant as specified in its charter)
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Missouri |
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43-1793922 |
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(State or other jurisdiction of |
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(I.R.S. Employer |
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incorporation or organization) |
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Identification No.) |
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17409 Hidden Valley Drive |
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63025 |
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Wildwood, Missouri |
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(Zip Code) |
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(Address of principal executive offices) |
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(636) 938-7474
(Registrant’s telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which registered
Common Stock, $0.01 par value per share NASDAQ Stock Exchange
Securities registered pursuant to section 12(g) of the Act:
None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.
Yes ☐ No ☒
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.
Yes ☐ No ☒
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Se curities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.
Yes ☒ No ☐
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).
Yes ☒ No ☐
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§ 229.405 of this chapter) is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K
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Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. Large accelerated filer ☐ Accelerated filer ☒
Non-accelerated filer ☐ (Do not check if a smaller reporting company) Smaller reporting company ☐
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).
Yes ☐ No ☒
As of October 31, 2015, the last business day of the registrant’s most recently completed second fiscal quarter, the aggregate market value of voting and non-voting common equity held by non-affiliates of the registrant was $84.1 million.
As of July 14, 2016, 13,982,400 shares of the registrant’s common stock were outstanding.
Documents incorporated by reference:
Portions of the registrant’s Definitive Proxy Statement for its 2016 Annual Meeting of Stockholders are incorporated by reference into Part III of this Annual Report on Form 10-K, to be filed within 120 days of the registrant’s fiscal year ended April 30, 2016 .
EXPLANATORY NOTE
The purpose of this Amendment No. 1 (the “Amendment”) to the registrant’s Annual Report on Form 10-K for the year ended April 30, 2016, filed with the Securities and Exchange Commission on July 14, 2016 (the “Annual Report”), is to include revised Exhibits 10.64, 21.1, 23.1, 31.1, 31.2 and 32.1 filed with the Annual Report to correct formatting and typographical errors. Amended and restated Exhibits 10.64, 21.1, 23.1, 31.1, 31.2 and 32.1 are filed as Exhibits to this Amendment, and currently dated certifications from our Chief Executive Officer and Chief Financial Officer are filed as Exhibits 31.3, 31.4 and 32.2 to this Amendment.
No other changes have been made to the Annual Report except as noted above. This Amendment to the Annual Report speaks as of the original filing date of the Annual Report, does not reflect events that may have occurred subsequent to the original filing date, and does not modify or update in any way disclosures made in the original Annual Report except that changes have been made to the attached Exhibits.
PART IV
Item 15. Exhibits and Financial Statement Schedules.
(a) The following documents are filed as part of this annual report on Form 10-K:
1. Financial Statements.
The consolidated financial statements of Peak Resorts, Inc. and subsidiaries, together with the report thereon of the Company’s independent registered public accounting firm, are included in Part II, Item 8, “Financial Statements and Supplementary Data” of this annual report on Form 10-K. See Index to Consolidated Financial Statements therein.
2. Financial Statement Schedules
None.
3. Exhibits
The exhibits required to be filed as part of this annual report on Form 10-K are listed in the attached Exhibit Index.
(b) The exhibits filed with this annual report on Form 10-K are listed in the attached Exhibit Index.
(c) None.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
PEAK RESORTS, INC.
Date: July 1 5 , 2016 By: /s/ Timothy D. Boyd
Timothy D. Boyd
Chief Executive Officer and President
(Principal Executive Officer)
Date: July 1 5 , 2016 By: /s/ Stephen J. Mueller
Stephen J. Mueller
Chief Finan cial Officer and Vice President
(Principal Financial and Accounting Officer)
EXHIBIT INDEX
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4.1 |
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Form of Peak Resorts, Inc. Common Stock Certificate (filed as Exhibit 4.1 to Amendment No. 1 to the Registrant’s Registration Statement on Form S-1 filed on November 10, 2014 and incorporated herein by reference). |
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10.1 |
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Loan Agreement by and between Peak Resorts, Inc. and L.B.O. Holding, Inc., as borrowers, and EPT Mount Attitash, Inc., as lender, dated April 4, 2007 (filed as Exhibit 10.1 to the Registrant’s Registration Statement on Form S-1 filed on October 20, 2014 and incorporated herein by reference). |
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10.2 |
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Promissory Note from Peak Resorts, Inc. and L.B.O. Holding, Inc. in favor of EPT Mount Attitash, Inc. dated April 4, 2007 (filed as Exhibit 10.2 to the Registrant’s Registration Statement on Form S-1 filed on October 20, 2014 and incorporated herein by reference). |
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10.3 |
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Note Modification Agreement by and between Peak Resorts, Inc. and L.B.O. Holding, Inc., as borrowers, and EPT Mount Attitash, Inc. as lender, dated October 30, 2007 (filed as Exhibit 10.3 to the Registrant’s Registration Statement on Form S-1 filed on October 20, 2014 and incorporated herein by reference). |
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10.4 |
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Agreement Concerning a Loan for a Holder of a Special Use Permit by and between the U.S. Department of Agriculture, Forest Service; EPT Mount Attitash, Inc. and L.B.O. Holding, Inc., dated April 4, 2007 (filed as Exhibit 10.4 to the Registrant’s Registration Statement on Form S-1 filed on October 20, 2014 and incorporated herein by reference). |
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10.5 |
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Agreement Concerning a Loan for a Holder of a Special Use Permit by and between the U.S. Department of Agriculture, Forest Service; EPT Mount Snow, Inc. and Mount Snow, Ltd., dated April 4, 2007 (filed as Exhibit 10.5 to the Registrant’s Registration Statement on Form S-1 filed on October 20, 2014 and incorporated herein by reference). |
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10.6 |
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Promissory Note from Peak Resorts, Inc. and Mount Snow, Ltd. in favor of EPT Mount Snow, Inc., dated April 4, 2007 (filed as Exhibit 10.6 to the Registrant’s Registration Statement on Form S-1 filed on October 20, 2014 and incorporated herein by reference). |
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10.7 |
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Modification Agreement by and between Peak Resorts, Inc. and Mount Snow, Ltd., as borrowers, and EPT Mount Snow, Inc. as lender, dated April 1, 2010 (filed as Exhibit 10.7 to the Registrant’s Registration Statement on Form S-1 filed on October 20, 2014 and incorporated herein by reference). |
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10.8 |
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Second Modification Agreement by and between Peak Resorts, Inc. and Mount Snow, Ltd., as borrowers, and EPT Mount Snow, Inc. as lender, dated July 13, 2012 (filed as Exhibit 10.8 to the Registrant’s Registration Statement on Form S-1 filed on October 20, 2014 and incorporated herein by reference). |
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10.9 |
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Third Modification Agreement by and between Peak Resorts, Inc. and Mount Snow, Ltd., as borrowers, and EPT Mount Snow, Inc. as lender, dated April 1, 2013 (filed as Exhibit 10.9 to the Registrant’s Registration Statement on Form S-1 filed on October 20, 2014 and incorporated herein by reference). |
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10.10 |
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Loan Agreement by and between Peak Resorts, Inc. and Mount Snow, Ltd., as borrowers, and EPT Mount Snow, Inc., as lender, dated April 4, 2007 (filed as Exhibit 10.10 to the Registrant’s Registration Statement on Form S-1 filed on October 20, 2014 and incorporated herein by reference). |
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10.11 |
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First Modification Agreement by and between Peak Resorts, Inc. and Mount Snow, Ltd., as borrowers, and EPT Mount Snow, Inc., as lender, dated June 30, 2009 (filed as Exhibit 10.11 to the Registrant’s Registration Statement on Form S-1 filed on October 20, 2014 and incorporated herein by reference). |
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10.12 |
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Amended and Restated Promissory Note from Peak Resorts, Inc. and Mount Snow, Ltd. in favor of EPT Mount Snow, Inc., dated June 30, 2009 (filed as Exhibit 10.12 to the Registrant’s Registration Statement on Form S-1 filed on October 20, 2014 and incorporated herein by reference). |
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10.13 |
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Letter Agreement by and between Peak Resorts, Inc. and Mount Snow, Ltd., as borrowers, and EPT Mount Snow, Inc., as lender, dated June 20, 2009 (filed as Exhibit 10.13 to the Registrant’s Registration Statement on Form S-1 filed on October 20, 2014 and incorporated herein by reference). |
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10.14 |
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Amended and Restated Credit and Security Agreement among Mad River Mountain, Inc.; SNH Development, Inc.; L.B.O. Holding, Inc.; Mount Snow, Ltd.; Peak Resorts, Inc.; Hidden Valley Golf and Ski, Inc.; Snow Creek, Inc.; Paoli Peaks, Inc.; Deltrecs, Inc.; Brandywine Ski Resort, Inc.; Boston Mills Ski Resort, Inc.; and JFBB Ski Areas, Inc., as borrowers, and EPT Ski Properties, Inc., as lender, dated October 30, 2007 (filed as Exhibit 10.14 to the Registrant’s Registration Statement on Form S-1 filed on October 20, 2014 and incorporated herein by reference). |
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10.15 |
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Option Agreement between Hidden Valley Golf and Ski, Inc.; Snow Creek, Inc.; Paoli Peaks, Inc.; Brandywine Ski Resort, Inc.; Boston Mills Ski Resort, Inc.; and JFBB Ski Areas, Inc., as sellers, and EPT Ski Properties, Inc. as purchaser, dated October 30, 2007 (filed as Exhibit 10.15 to the Registrant’s Registration Statement on Form S-1 filed on October 20, 2014 and incorporated herein by reference). |
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10.16 |
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Second Amended and Restated Promissory Note from Peak Resorts, Inc.; JFBB Ski Areas, Inc.; Mad River Mountain, Inc.; SNH Development, Inc.; L.B.O. Holding, Inc.; Mount Snow, Ltd.; Hidden Valley Golf and Ski, Inc.; Paoli Peaks, Inc.; Deltrecs, Inc.; Brandywine Ski Resort, Inc.; and Boston Mills Ski Resort, Inc. in favor of EPT Ski Properties, Inc., dated August 5, 2008 (filed as Exhibit 10.16 to the Registrant’s Registration Statement on Form S-1 filed on October 20, 2014 and incorporated herein by reference). |
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10.17 |
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Third Amended and Restated Promissory Note from Peak Resorts, Inc.; JFBB Ski Areas, Inc.; Mad River Mountain, Inc.; SNH Development, Inc.; L.B.O. Holding, Inc.; Mount Snow, Ltd.; Hidden Valley Golf and Ski, Inc.; Paoli Peaks, Inc.; Deltrecs, Inc.; Brandywine Ski Resort, Inc.; and Boston Mills Ski Resort, Inc. in favor of EPT Ski Properties, Inc., dated December 15, 2011 (filed as Exhibit 10.17 to the Registrant’s Registration Statement on Form S-1 filed on October 20, 2014 and incorporated herein by reference). |
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10.18 |
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Fourth Amended and Restated Promissory Note from Peak Resorts, Inc.; JFBB Ski Areas, Inc.; Mad River Mountain, Inc.; SNH Development, Inc.; L.B.O. Holding, Inc.; Mount Snow, Ltd.; Hidden Valley Golf and Ski, Inc.; Paoli Peaks, Inc.; Deltrecs, Inc.; Brandywine Ski Resort, Inc.; and Boston Mills Ski Resort, Inc. in favor of EPT Ski Properties, Inc., dated May 14, 2012 (filed as Exhibit 10.18 to the Registrant’s Registration Statement on Form S-1 filed on October 20, 2014 and incorporated herein by reference). |
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10.19 |
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Fifth Amended and Restated Promissory Note from Peak Resorts, Inc.; JFBB Ski Areas, Inc.; Mad River Mountain, Inc.; SNH Development, Inc.; L.B.O. Holding, Inc.; Mount Snow, Ltd.; Hidden Valley Golf and Ski, Inc.; Paoli Peaks, Inc.; Deltrecs, Inc.; Brandywine Ski Resort, Inc.; and Boston Mills Ski Resort, Inc. in favor of EPT Ski Properties, Inc., dated July 13, 2012 (filed as Exhibit 10.19 to the Registrant’s Registration Statement on Form S-1 filed on October 20, 2014 and incorporated herein by reference). |
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10.20 |
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Blanket Conveyance, Bill of Sale and Assignment between Wildcat Mountain Ski Area, Inc., Meadow Green ‑Wildcat Skilift Corp. and Meadow Green ‑Wildcat Corp., as assignors, and WC Acquisition Corp., as assignee, dated November 19, 2010 (filed as Exhibit 10.20 to the Registrant’s Registration Statement on Form S-1 filed on October 20, 2014 and incorporated herein by reference). |
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10.21 |
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Agreement Concerning a Loan for a Holder of a Special Use Permit by and between the U.S. Department of Agriculture, Forest Service; Meadow Green ‑Wildcat Corp, as lender, and WC Acquisition Corp., as borrower, dated November 19, 2010 (filed as Exhibit 10.21 to the Registrant’s Registration Statement on Form S-1 filed on October 20, 2014 and incorporated herein by reference). |
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10.22 |
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Promissory Note from WC Acquisition Corp. in favor of Wildcat Mountain Ski Area, Inc.; Meadow Green ‑Wildcat Skilift Corp.; and Meadow Green ‑Wildcat Corp., dated November 22, 2010 (filed as Exhibit 10.22 to the Registrant’s Registration Statement on Form S-1 filed on October 20, 2014 and incorporated herein by reference). |
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10.23 |
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Unconditional Guaranty of Peak Resorts, Inc., dated November 12, 2010 (filed as Exhibit 10.23 to the Registrant’s Registration Statement on Form S-1 filed on October 20, 2014 and incorporated herein by reference). |
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10.24 |
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Lease Agreement by and between EPT Mad River, Inc. and Mad River Mountain, Inc., dated November 17, 2005 (filed as Exhibit 1024 to the Registrant’s Registration Statement on Form S-1 filed on October 20, 2014 and incorporated herein by reference). |
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10.25 |
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First Amendment to Lease Agreement by and between EPT Mad River, Inc. and Mad River Mountain, Inc., dated June 30, 2006 (filed as Exhibit 10.25 to the Registrant’s Registration Statement on Form S-1 filed on October 20, 2014 and incorporated herein by reference). |
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10.26 |
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Ground Lease by and between Crotched Mountain Properties, L.L.C. and SNH Development, Inc., dated May 27, 2003 (filed as Exhibit 10.26 to the Registrant’s Registration Statement on Form S-1 filed on October 20, 2014 and incorporated herein by reference). |
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10.27 |
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First Amendment to Ground Lease by and between Crotched Mountain Properties, L.L.C. and SNH Development, Inc., dated April 3, 2004 (filed as Exhibit 10.27 to the Registrant’s Registration Statement on Form S-1 filed on October 20, 2014 and incorporated herein by reference). |
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10.28 |
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Second Amendment to Ground Lease by and between Crotched Mountain Properties, L.L.C. and SNH Development, Inc., dated January 31, 2008 (filed as Exhibit 10.28 to the Registrant’s Registration Statement on Form S-1 filed on October 20, 2014 and incorporated herein by reference). |
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10.29 |
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Lease by and between the Estate of Charles Marvin Weeks and Paoli Peaks, Inc., dated September 26, 1990 (filed as Exhibit 10.29 to the Registrant’s Registration Statement on Form S-1 filed on October 20, 2014 and incorporated herein by reference). |
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10.30 |
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U.S. Department of Agriculture Forest Service Special Use Permit for Attitash (filed as Exhibit 10.30 to the Registrant’s Registration Statement on Form S-1 filed on October 20, 2014 and incorporated herein by reference). |
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10.31 |
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U.S. Department of Agriculture Forest Service Special Use Permit for Mount Snow (filed as Exhibit 10.31 to the Registrant’s Registration Statement on Form S-1 filed on October 20, 2014 and incorporated herein by reference). |
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10.32 |
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U.S. Department of Agriculture Forest Service Special Use Permit for Wildcat Mountain (filed as Exhibit 10.32 to the Registrant’s Registration Statement on Form S-1 filed on October 20, 2014 and incorporated herein by reference). |
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10.33 |
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Promissory Note from SNH Development, Inc. in favor of EPT Crotched Mountain Ski Resort, Inc., dated March 10, 2006 (filed as Exhibit 10.33 to the Registrant’s Registration Statement on Form S-1 filed on October 20, 2014 and incorporated herein by reference). |
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10.34 |
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Amended and Restated Promissory Note from SNH Development, Inc. in favor of EPT Crotched Mountain Ski Resort, Inc., dated July 13, 2012 (filed as Exhibit 10.34 to the Registrant’s Registration Statement on Form S-1 filed on October 20, 2014 and incorporated herein by reference). |
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10.35 |
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Guaranty of Payment made by Peak Resorts, Inc. for the benefit EPT Crotched Mountain, Inc., dated March 10, 2006 (filed as Exhibit 10.35 to the Registrant’s Registration Statement on Form S-1 filed on October 20, 2014 and incorporated herein by reference). |
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10.36 |
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Loan Agreement by and between Peak Resorts, Inc.; JFBB Ski Areas, Inc.; Mad River Mountain, Inc.; SNH Development, Inc.; L.B.O. Holding, Inc.; Mount Snow, Ltd.; HiddenValley Golf and Ski, Inc.; Snow Creek, Inc.; Paoli Peaks, Inc.; Deltrecs, Inc.; Brandywine Ski Resort, Inc.; Boston Mills Ski Resort, Inc.; and WC Acquisition Corp., as borrowers, and EPT Ski Properties, Inc., dated July 13, 2012 (filed as Exhibit 10.36 to the Registrant’s Registration Statement on Form S-1 filed on October 20, 2014 and incorporated herein by reference). |
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10.37 |
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Loan Agreement by and between Sycamore Lake, Inc. and Peak Resorts, Inc., as borrowers, and EPT Ski Properties, Inc., as lender, dated November 19, 2012 (filed as Exhibit 10.37 to the Registrant’s Registration Statement on Form S-1 filed on October 20, 2014 and incorporated herein by reference). |
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10.38 |
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First Amendment to Loan Agreement by and between Sycamore Lake, Inc. and Peak Resorts, Inc., as borrowers, and EPT Ski Properties, Inc. as lender, dated July 26, 2013 (filed as Exhibit 10.38 to the Registrant’s Registration Statement on Form S-1 filed on October 20, 2014 and incorporated herein by reference). |
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10.39 |
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Promissory Note from Sycamore Lake, Inc. and Peak Resorts, Inc. in favor of EPT Ski Properties, Inc., dated November 19, 2012 (filed as Exhibit 10.39 to the Registrant’s Registration Statement on Form S-1 filed on October 20, 2014 and incorporated herein by reference). |
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10.40 |
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Option Agreement between Peak Resorts, Inc. and Sycamore Lake, Inc., as sellers, and EPT Ski Properties, Inc., as purchaser, dated November 19, 2012 (filed as Exhibit 10.40 to the Registrant’s Registration Statement on Form S-1 filed on October 20, 2014 and incorporated herein by reference). |
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10.41 |
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Modification and Consent Agreement by and between Peak Resorts, Inc. and Mount Snow, Ltd., as borrowers, EPT Mount Snow, Inc., as lender, and EPT Ski Properties, Inc., dated July 26, 2013 (filed as Exhibit 10.41 to the Registrant’s Registration Statement on Form S-1 filed on October 20, 2014 and incorporated herein by reference). |
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10.42 |
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Letter Agreement regarding the Modification and Consent Agreement by and between Peak Resorts, Inc. and Mount Snow, Ltd., as borrowers, EPT Mount Snow, Inc., as lender, and EPT Ski Properties, Inc., dated June 13, 2014 (filed as Exhibit 10.42 to the Registrant’s Registration Statement on Form S-1 filed on October 20, 2014 and incorporated herein by reference). |
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10.43 |
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Purchase and Sale Agreement by and between Piggy and the Three J's, LLC and the Estate of James L. McGovern, III, as seller, and Mount Snow Ltd., as buyer, dated April 15, 2013 (filed as Exhibit 10.43 to the Registrant’s Registration Statement on Form S-1 filed on October 20, 2014 and incorporated herein by reference). |
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10.44 |
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Form of Peak Resorts, Inc. Indemnification Agreement (filed as Exhibit 10.44 to the Registrant’s Registration Statement on Form S-1 filed on October 20, 2014 and incorporated herein by reference). |
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10.45 |
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Agreement by and between Mount Snow, Ltd. and Leitner ‑Poma of America, dated as of March 24, 2011 (filed as Exhibit 10.45 to the Registrant’s Registration Statement on Form S-1 filed on October 20, 2014 and incorporated herein by reference). |
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10.46 |
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Executive Employment Agreement by and between Peak Resorts, Inc. and Timothy D. Boyd, dated as of June 1, 2011 (filed as Exhibit 10.46 to Amendment No. 1 to the Registrant’s Registration Statement on Form S-1 filed on November 10, 2014 and incorporated herein by reference). |
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10.47 |
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Executive Employment Agreement by and between Peak Resorts, Inc. and Stephen J. Mueller, dated as of June 1, 2011 (filed as Exhibit 10.47 to Amendment No. 1 to the Registrant’s Registration Statement on Form S-1 filed on November 10, 2014 and incorporated herein by reference). |
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10.48 |
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Executive Employment Agreement by and between Peak Resorts, Inc. and Richard Deutsch, dated as of June 1, 2011(filed as Exhibit 10.48 to Amendment No. 1 to the Registrant’s Registration Statement on Form S-1 filed on November 10, 2014 and incorporated herein by reference). |
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10.49 |
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Peak Resorts, Inc. 2014 Equity Incentive Plan (filed as Exhibit 10.1 to the Registrant’s Registration Statement on Form S-8 filed on January 15, 2015 and incorporated herein by reference). |
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10.50 |
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Restructure Agreement by and between Peak Resorts, Inc., Hidden Valley Golf & Ski, Inc. Boston Mills Ski Resort, Inc., Brandywine Ski Resort, Inc., Paoli Peaks, Inc., Snow Creek, Inc., JFBB Ski Areas, Inc., Mad River Mountain, Inc., SNH Development, Inc., L.B.O. Holdings, Inc., Mount Snow, Ltd., Deltrecs, Inc. and Sycamore Lake, Inc. and EPT Crotched Mountain, Inc., EPT Mount Snow, Inc., EPT Mount Attitash, Inc., EPT Ski Properties, Inc., Crotched Mountain Properties, LLC, and EPT Mad River, Inc., dated as of November 10, 2014 (filed as Exhibit 10.50 to Amendment No. 1 to the Registrant’s Registration Statement on Form S-1 filed on November 10, 2014 and incorporated herein by reference). |
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10.51 |
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Master Credit and Security Agreement, dated as of December 1, 2014, among Peak Resorts, Inc., Mount Snow, Ltd., Sycamore Lake, Inc., Brandywine Ski Resort, Inc., Boston Mills Ski Resort, Inc., Deltrecs, Inc., and JFBB Ski Areas, Inc, as borrowers, and EPT Ski Properties, Inc. and EPT Mount Snow, Inc., as lender (filed as Exhibit 10.1 to the Quarterly Report on Form 10-Q filed on January 6, 2015 and incorporated herein by reference). |
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10.52 |
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Amendment to Master Credit and Security Agreement, effective as of December 1, 2014, by and among Peak Resorts, Inc., Mount Snow, Ltd., Sycamore Lake, Inc., Brandywine Ski Resort, Inc., Boston Mills Ski Resort, Inc., Deltrecs, Inc. and JFBB Ski Areas, Inc., as borrowers, and EPT Ski Properties, Inc. and EPT Mount Snow, Inc., as lenders (filed as Exhibit 10.1 to the Current Report on Form 8-K/A filed on January 29, 2015 and incorporated herein by reference). |
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10.53 |
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Amended and Restated Promissory Note from Peak Resorts, Inc., Boston Mills Ski Resort, Inc. Brandywine Ski Resort, Inc. and Deltrecs, Inc. in favor of EPT Ski Properties, Inc., dated December 1, 2014 (filed as Exhibit 10.2 to the Quarterly Report on Form 10-Q filed on January 6, 2015 and incorporated herein by reference). |
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10.54 |
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Amended and Restated Promissory Note from Peak Resorts, Inc. and Sycamore Lake, Inc. in favor of EPT Ski Properties, Inc., dated December 1, 2014 (filed as Exhibit 10.3 to the Quarterly Report on Form 10-Q filed on January 6, 2015 and incorporated herein by reference). |
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10.55 |
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Amended and Restated Promissory Note from Peak Resorts, Inc. and JFBB Ski Areas, Inc. in favor of EPT Ski Properties, Inc., dated December 1, 2014 (filed as Exhibit 10.4 to the Quarterly Report on Form 10-Q filed on January 6, 2015 and incorporated herein by reference). |
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10.56 |
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Amended and Restated Promissory Note from Peak Resorts, Inc. and Mount Snow, Ltd. in favor of EPT Ski Properties, Inc., dated December 1, 2014 (filed as Exhibit 10.5 to the Quarterly Report on Form 10-Q filed on January 6, 2015 and incorporated herein by reference). |
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10.57 |
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Master Cross Default Agreement, dated as of December 1, 2014, by and among EPT Ski Properties, Inc., EPT Mount Snow, Inc. and EPT Mad River, Inc. and Peak Resorts, Inc., Mad River Mountain, Inc., Mount Snow, Ltd., Sycamore Lake, Inc., Deltrecs, Inc., Brandywine Ski Resort, Inc., Boston Mills Ski Resort, Inc. and JFBB Ski Areas, Inc., as borrowers, and SNH Development, Inc., L.B.O. Holding, Inc., Hidden Valley Golf and Ski, Inc., Snow Creek, Inc., Paoli Peaks, Inc. and Crotched Mountain Properties, LLC, as guarantors (filed as Exhibit 10.6 to the Quarterly Report on Form 10-Q filed on January 6, 2015 and incorporated herein by reference). |
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10.58 |
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Amended and Restated Master Cross Default Agreement by and among EPT Ski Properties, Inc., EPT Mount Snow, Inc. and EPT Mad River, Inc. and Peak Resorts, Inc., Mad River Mountain, Inc., Mount Snow, Ltd., Sycamore Lake, Inc., Deltrecs, Inc., Brandywine Ski Resort, Inc., Boston Mills Ski Resort, Inc., JFBB Ski Areas, Inc., Hunter Mountain Acquisition, Inc., Hunter Mountain Ski Bowl Inc., Hunter Mountain Festivals, Ltd., Hunter Mountain Rentals Ltd., Hunter Resort Vacations, Inc., Hunter Mountain Base Lodge, Inc. and Frosty Land, Inc., as borrowers, and SNH Development, Inc., L.B.O. Holding, Inc., Hidden Valley Golf and Ski, Inc., Snow Creek, Inc., Paoli Peaks, Inc. and Crotched Mountain Properties, LLC, as guarantors, dated as of January 6, 2016 (filed as Exhibit 10.3 to the Current Report on Form 8-K filed on January 8, 2016 and incorporated herein by reference). |
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10.59 |
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Guaranty Agreement, made as of December 1, 2014, by Peak Resorts, Inc., JFBB Ski Areas, Inc., Mad River Mountain, Inc., SNH Development, Inc., L.B.O. Holding, Inc., Mount Snow, Ltd., Sycamore Lake, Inc., Hidden Valley Golf and Ski, Inc., Snow Creek, Inc., Paoli Peaks, Inc., Deltrecs, Inc., Brandywine Ski Resort, Inc., Boston Mills Ski Resort, Inc., WC Acquisition Corp., Resort Holdings, L.L.C. and BLC Operators, Inc., as guarantors, for the benefit of EPT Ski Properties, Inc. and EPT Mount Snow, Inc. (filed as Exhibit 10.7 to the Quarterly Report on Form 10-Q filed on January 6, 2015 and incorporated herein by reference). |
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10.60 |
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Option Agreement between Brandywine Ski Resort, Inc., Boston Mills Ski Resort, Inc., JFBB Ski Areas, Inc. and Sycamore Lake, Inc., as seller, and EPT Ski Properties, Inc., as purchaser, dated as of December 1, 2014 (filed as Exhibit 10.8 to the Quarterly Report on Form 10-Q filed on January 6, 2015 and incorporated herein by reference). |
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10.61 |
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Master Right of First Refusal Agreement, made as of December 1, 2014, by and between EPT Ski Properties, Inc. and Peak Resorts, Inc. (filed as Exhibit 10.9 to the Quarterly Report on Form 10-Q filed on January 6, 2015 and incorporated herein by reference). |
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10.62 |
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Right of First Refusal Agreement (Mount Attitash), dated as of December 1, 2014, among L.B.O. Holding, Inc. and EPT Ski Properties, Inc. (filed as Exhibit 10.10 to the Quarterly Report on Form 10-Q filed on January 6, 2015 and incorporated herein by reference). |
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10.63 |
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Second Amendment to Lease Agreement, made as of December 1, 2014, by and between EPT Mad River, Inc. and Mad River Mountain, Inc. (filed as Exhibit 10.11 to the Quarterly Report on Form 10-Q filed on January 6, 2015 and incorporated herein by reference). |
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10.64 |
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Third Amendment to Lease agreement, made as of June 8, 2016, by and between EPT Mad River, Inc. and Mad River Mountain, Inc. |
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10.65 |
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Credit Facility, Loan and Security Agreement by and between Peak Resorts, Inc., Hidden Valley Golf and Ski, Inc., Paoli Peaks, Inc., Snow Creek, Inc., LBO Holding, Inc., and SNH Development, Inc., and Royal Banks of Missouri, dated as of December 22, 2015 (filed as Exhibit 10.1 to the Current Report on Form 8-K filed on December 29, 2015 and incorporated herein by reference). |
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10.66 |
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Promissory Note from Peak Resorts, Inc., Hidden Valley Golf and Ski, Inc., Paoli Peaks, Inc., Snow Creek, Inc., LBO Holding, Inc., and SNH Development, Inc. in favor of Royal Banks of Missouri, dated as of December 22, 2015 (filed as Exhibit 10.2 to the Current Report on Form 8-K filed on December 29, 2015 and incorporated herein by reference). |
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10.67 |
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Master Credit and Security Agreement among Peak Resorts, Inc., Hunter Mountain Acquisition, Inc., Hunter Mountain Ski Bowl Inc., Hunter Mountain Festivals, Ltd., Hunter Mountain Rentals Ltd., Hunter Resort Vacations, Inc., Hunter Mountain Base Lodge, Inc. and Frosty Land, Inc., as borrowers, and EPT Ski Properties, Inc., as lender, dated as of January 6, 2016 (filed as Exhibit 10.1 to the Current Report on Form 8-K filed on January 8, 2016 and incorporated herein by reference). |
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10.68 |
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Promissory Note from Peak Resorts, Inc., Hunter Mountain Acquisition, Inc., Hunter Mountain Ski Bowl Inc., Hunter Mountain Festivals, Ltd., Hunter Mountain Rentals Ltd., Hunter Resort Vacations, Inc., Hunter Mountain Base Lodge, Inc. and Frosty Land, Inc. in favor of EPT Ski Properties, Inc., dated as of January 6, 2016 (filed as Exhibit 10.2 to the Current Report on Form 8-K filed on January 8, 2016 and incorporated herein by reference). |
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10.69 |
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Guaranty Agreement, by Peak Resorts, Inc., Hunter Mountain Acquisition, Inc., Hunter Mountain Ski Bowl Inc., Hunter Mountain Festivals, Ltd., Hunter Mountain Rentals Ltd., Hunter Resort Vacations, Inc., Hunter Mountain Base Lodge, Inc., Frosty Land, Inc., JFBB Ski Areas, Inc., Boston Mills Ski Resort, Inc., Brandywine Ski Resort, Inc., Sycamore Lake, Inc., Mount Snow, Ltd. and Deltrecs, Inc., as borrowers, Mad River Mountain, Inc., SNH Development, Inc., L.B.O. Holding, Inc., Hidden Valley Golf and Ski, Inc., Snow Creek, Inc., Paoli Peaks, Inc., WC Acquisition Corp., Resort Holdings, L.L.C. and BLC Operators, Inc., as guarantors, for the benefit of EPT Ski Properties, Inc. and EPT Mount Snow, Inc., made as of January 6, 2016 (filed as Exhibit 10.4 to the Current Report on Form 8-K filed on January 8, 2016 and incorporated herein by reference). |
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10.70 |
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Form of Peak Resorts, Inc. Director Restricted Stock Unit Agreement (filed as Exhibit 10.7 to the Quarterly Report on Form 10-Q filed on March 15, 2016 and incorporated herein by reference). |
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21.1 |
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List of Subsidiaries. |
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23.1 |
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Consent of RSM US LLP. |
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31.1 |
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Certification of Principal Executive Officer, pursuant to Rule 13a-14(a)/15d-14(a), as adopted pursuant to Section 302 of the Sarbanes Oxley Act of 2002. |
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31.2 |
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Certification of Principal Financial Officer, pursuant to Rule 13a-14(a)/15d-14(a), as adopted pursuant to Section 302 of the Sarbanes Oxley Act of 2002. |
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31.3 |
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Certification of Principal Executive Officer, pursuant to Rule 13a-14(a)/15d-14(a), as adopted pursuant to Section 302 of the Sarbanes Oxley Act of 2002. |
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31.4 |
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Certification of Principal Financial Officer, pursuant to Rule 13a-14(a)/15d-14(a), as adopted pursuant to Section 302 of the Sarbanes Oxley Act of 2002. |
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32.1 |
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Certification of Chief Executive Officer and Chief Financial Officer furnished pursuant to Section 906 of the Sarbanes Oxley Act of 2002 (18 USC. Section 1350). |
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32.2 |
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Certification of Chief Executive Officer and Chief Financial Officer furnished pursuant to Section 906 of the Sarbanes Oxley Act of 2002 (18 USC. Section 1350). |
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E Exhibit 10.64
THIRD AMENDMENT TO LEASE AGREEMENT
THIS THIRD AMENDMENT TO LEASE AGREEMENT (this “ Amendment ”) is made as of the __8___ day of June, 2016 (the “ Effective Date ”), by and between EPT MAD RIVER, INC., a Missouri corporation (“ Landlord ”) and MAD RIVER MOUNTAIN, INC., a Missouri corporation (“ Tenant ”).
RECITALS
A. Landlord and Tenant are parties to that certain Lease Agreement dated as of November 17, 2005 (the “ Original Lease ”) wherein Landlord leased to Tenant and Tenant leased from Landlord certain premises located on real property in the Village of Valley Hi, Logan County, Ohio, as more particularly described in the Original Lease.
B. The Original Lease was modified and amended pursuant to that certain First Amendment to Lease Agreement dated June 30, 2006 and that certain Second Amendment to Lease Agreement dated December 1, 2014 (as further amended by this Amendment, collectively referred to herein as the “ Lease ”).
C. On or about September 16, 2015, portions of the Leased Premises, consisting of the base lodge, existing office building, ticketing building and adaptive learning building, were damaged by fire and rendered unuseable (the “ Casualty Event ”), however, notwithstanding the Casualty Event, Tenant continued to fully operate on the Leased Premises and perform its obligations under, and in accordance with, the Lease, including, without limitation, the payment of Rent.
D. Landlord and Tenant are in the process of obtaining insurance proceeds from Tenant's insurers from which Tenant will use to construct the Tenant Improvements (hereinafter defined) on the Leased Premises, the costs of which will exceed the anticipated amount of insurance proceeds to be made available from Tenant's insurers and Landlord is willing to provide funding to Tenant to undertake development and construction of the Tenant Improvements as provided in this Amendment.
E. Landlord and Tenant desire to enter into this Amendment to modify the terms of the Lease as set forth below.
NOW, THEREFORE , in consideration of the above recitals, the terms, covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, the parties hereby agree as follows :
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1. Defined Terms . Defined terms not otherwise defined herein shall have the meaning given to such term in the Lease . |
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2. Incorporation of Recitals . The foregoing recitals are hereby incorporated herein by reference. |
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3. Tenant Improvements . |
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a. Tenant Improvements . Tenant desires to construct certain improvements and the performance of certain work upon the Leased Premises, including the (i) demolition of the old base lodge, existing office building, ticketing building, and adaptive learning building, (ii) development and construction of a new base lodge, (iii) construction of a sidewalk to the rental facility from the new base lodge, and (iv) addition of traffic pattern lighting , all as described
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on Exhibit A , attached hereto and incorporated herein by reference (collectively, the “ Tenant Improvements ”), which shall be performed by Tenant pursuant to the terms of the Lease and this Amendment. The Tenant Improvements shall at all times fully comply with all applicable federal, state and municipal laws, ordinances, regulations, codes and other governmental requirements now or hereafter in force and Tenant shall, at Tenant's sole cost and expense, take all actions now or hereafter necessary to ensure such compliance. |
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b. Construction of Tenant Improvements . Within ten (10) days after the date hereof, Tenant shall cause delivery to Landlord, for Landlord’s review and approval two sets of blueline prints describing the Tenant Improvements (the “ Preliminary Plans ”) along with a draft budget for all of the Tenant Improvements (the “ Budget ”). Within ten (10) business days after receipt of Tenant’s Preliminary Plans and the Budget, the Landlord will review the Preliminary Plans and the Budget and reply, either “approving”, “approving with notations” or “disapproving” the same. Landlord’s approval shall not be unreasonably withheld , conditioned or delayed. If the Preliminary Plans or the Budget (or any portions of either) are rejected by the Landlord for any reason, the Preliminary Plans or Budget, as the case may be, must be corrected and re-submitted until fully approved by Landlord and Tenant. The Preliminary Plans, as submitted to, and approved by, Landlord are hereinafter referred to as the “ Final Plans ”. Landlord’s review of the Preliminary Plans and the Final Plans as set forth herein shall be for its sole purpose and shall not imply Landlord’s review of the same, or obligate Landlord to review the same, for quality design, code compliance or other like matters, and Landlord shall have no liability whatsoever in connection therewith and shall not be responsible for any omissions or errors contained in the Preliminary Plans or the Final Plans. Tenant shall retain a general contractor approved by Landlord (the “ General Contractor ”) pursuant to a construction contract in form approved by Landlord (the “ Construction Contract ”), whereby the General Contractor is required to construct the Tenant Improvements in accordance with the Final Plans and the Construction Contract. Tenant shall cause Landlord to be recognized as an expressly intended third party beneficiary of the Construction Contract and to require the General Contractor to execute with respect to the Construction Contract an Acknowledgement of Third Party Beneficiary which is substantially in the form attached hereto as Exhibit A . |
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c. Payment of Tenant Improvements . Tenant shall cooperate with Landlord and cause all available insurance proceeds made available to Tenant or Landlord arising from the Casualty Event (collectively, the “ Insurance Proceeds ”) to be delivered to Landlord and disbursed as part of the Tenant Improvement Allowance (hereinafter defined). In addition to the Insurance Proceeds, Landlord shall provide Tenant with an additional improvement allowance in excess of the Insurance Proceeds (the “ Landlord Contribution ”) for Tenant's expenses incurred in the construction of the Tenant Improvements on the Leased Premises (the Landlord Contribution together with the Insurance Proceeds shall hereinafter be referred to as the “ Tenant Improvement Allowance ”). The Landlord Contribution shall be an amount equal to the lesser of (i) the actual costs of the Tenant Improvements on the Leased Premises in excess of the Insurance Proceeds, or (ii) $2,700,000.00. The Tenant Improvement Allowance shall only be used for the Tenant Improvements as defined in this Amendment and shall not be used to fund any of Tenant's Property or any other furniture, fixtures and equipment without Landlord's consent in its sole judgement. Landlord shall disburse the Tenant Improvement Allowance in accordance with the following requirements: |
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i. |
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The parties shall instruct General Contractor, other equipment vendors and all third parties submitting bills or invoices relating to the Tenant Improvements to submit their bills or invoices to Tenant, who will prepare payment requests and submit the same in writing to Landlord for Landlord's approval. |
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ii. |
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Upon Landlord's approval of any payment request, Landlord shall pay directly to the payees identified in such payment request, funds equal to the requested funds (or such portion thereof approved by Landlord), until Landlord has disbursed the entirety of the Tenant Improvement Allowance; provided, however, in the event any portion of the Insurance Proceeds have not been received by Landlord and the then current balance of the Tenant Improvement Allowance is not sufficient to satisfy a payment request, Landlord may pay such payment request in excess of the Tenant Improvement Allowance, in Landlord's sole and absolute discretion, and then use any subsequent Insurance Proceeds to reimburse Landlord for such excess expenditures above and beyond the Landlord Contribution, or bill same directly to Tenant which Tenant shall pay to Landlord within fifteen (15) days after receipt of same from Landlord. In the event of a payment to the account of Tenant, Tenant shall then make payments in accordance with the request, and shall send to Landlord proof of payment in form reasonably requested by Landlord. |
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d. Payment Request Documentation . The following documentation shall be provided by or on behalf of Tenant in connection with any payment request for the Tenant Improvements: |
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i. |
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Copy of AIA G702 Application and Certificate for Payment form and AIA G703 Continuation Sheet signed by General Contractor and architect; |
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ii. |
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Copies of invoices from various contractors and/or subcontractors to match total amount reflected on each AIA G702 and AIA G703 forms that are submitted. Invoices greater than $5,000 should also be accompanied by conditional (for amounts to be paid) and unconditional (for amounts already paid) lien waivers if progress billings are involved, with a final unconditional lien waiver when the job is completed; |
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iii. |
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Copy of open invoices to be paid; |
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iv. |
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Upon the final payment request, (a) certificate of occupancy, (b) certificate of Substantial Completion from Tenant's architect (on AIA form), (c) as-built plans detailing the building, site work, and site work utilities if materially different from the Final Plans, (d) copies of any and all warranties from Tenant's contractors and suppliers, and (e) copies of any and all operations and maintenance manuals related to the Leased Premises; |
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v. |
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Any documentation required to be furnished by the General Contractor pursuant to the Construction Contract; and |
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vi. |
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For each payment request for any portion of the Tenant Improvements not made, pursuant to (ii) above, on AIA G702 and AIA G703 forms: a certification from Tenant and each contractor, subcontractor, or other vendor or supplier with respect to which payment is requested, in a form reasonably acceptable to Landlord, confirming the identification of each subcontractor or sub-vendor or sub-supplier contributing labor, materials or supplies in connection with such portion of the Tenant Improvements,
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together with conditional (for amounts to be paid) and unconditional (for amounts already paid) lien waivers if progress billings are involved, and final unconditional lien waivers when the job is completed, for all invoices greater than $5,000. |
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e. Timing for Payment Requests . With respect to payment requests by Tenant or by the General Contractor, provided that an application for payment is received by Landlord on or before the last day of a given month, Landlord shall pay the amount due (recognizing that the “amount due” does not include retainage which may be withheld under the Construction Contract) directly to the General Contractor on or before the 15th day of the next month (unless otherwise provided in the Construction Contract). |
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f. Title to Tenant Improvements . Any and all Tenant Improvements which may be made in or upon the Leased Premises shall become the property of Landlord and remain upon and be surrendered with the Leased Premises at the expiration of the Term without compensation to Tenant. |
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g. No Setoff . No portion of the Tenant Improvement Allowance shall be allowed as a setoff against Rent or other charges owing to Landlord by Tenant. |
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h. Liens . Tenant shall keep the Leased Premises and any interest therein, free and clear of all mechanics' liens and all other liens. Tenant shall give Landlord immediate, written notice of any lien filed against the Leased Premises, or any interest therein related to or arising from work performed by or for Tenant. If Tenant shall in good faith contest the validity of any such lien, claim or demand in connection with the Tenant Improvements, then Tenant, at its sole expense, shall defend, indemnify, protect and hold the Leased Premises and Landlord harmless against the same and shall pay and satisfy any such adverse judgment that may be rendered thereon before the enforcement thereof against Tenant, Landlord, or the Leased Premises. Upon Landlord's request, Tenant shall furnish to Landlord a corporate surety bond, satisfactory to Landlord, in an amount equal to one and one-half (1 1/2) times the amount of any such contested lien, claim or demand, indemnifying Landlord and Tenant from liability for any such lien, claim or demand and holding the Leased Premises free and harmless from and against the effect of any such lien, claim or demand and causing the release and reconveyance of said lien from the Leased Premises. In addition, Landlord shall have the right to require that Tenant pay Landlord's attorneys' fees and disbursements, court costs and other costs in defending any such action if Landlord is named as a party to any such action, the lien encumbers any portion of the Leased Premises or if Landlord elects to defend any such action or lien. |
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i. Suspension of Tenant Improvement Allowance . In no event shall Landlord be obligated to disburse any portion of the Tenant Improvement Allowance if Tenant is in arrears with regard to any Rent or other charges which might be due or owing, or otherwise in default under the Lease. |
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4. Amendment of Section 2(A) of the Original Lease . Effective as of December 1, 2016, the definition of Percentage Rate in Section 2(A) of the Original Lease is hereby deleted in its entirety and replaced with the following : |
“ Percentage Rate ” shall mean 33%.
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5. Amendment of Section 1(B)(1) of the Rent and Expense Rider to the Original Lease . Effective as of December 1, 2016, Section 1(B)(1) of the Rent and Expense Rider to the Original Lease is hereby deleted in its entirety and replaced with the following : |
“(1) In addition to the Annual Fixed Rent, Tenant shall pay Landlord as percentage rent (the “ Annual Percentage Rent ”) an amount for each Lease Year
equal to the Percentage Rate multiplied by the Gross Receipts for such Lease Year in excess of $7,400,000.00 (“ Base Amount ”); provided, however, Annual Percentage Rent shall not exceed in any Lease Year, an amount equal to twenty percent (20%) of the Landlord Contribution. For purposes of example only, assume that the Landlord Contribution is $2,500,000.00 and that the Gross Receipts for the applicable Lease Year is $9,000,000.00. Under this example, the Annual Percentage Rent would be equal to the Percentage Rate (33%) multiplied by $1,600,000.00 (which equals the amount by which the Gross Receipts for the applicable Lease Year exceed the Base Amount divided by the Percentage Rate), or $500,000.00 (33% of $1,600,000, but capped at $500,000.00). Within 60 days following the end of each Lease Year, Tenant shall furnish Landlord with a statement, verified by a corporate officer of Tenant, showing the amount of Gross Receipts for the preceding Lease Year, which statement shall be accompanied by Tenant's payment of Annual Percentage Rent, if any, is due. Beginning on December 1, 2021 and continuing on every fifth (5 th ) anniversary thereafter, the Base Amount shall increase by five percent (5%) over the Base Amount in the immediately preceding Lease Year.”
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6. Amendment of Section 22(A) of the Original Lease . Section 22(A) of the Original Lease is hereby deleted in its entirety and replaced with the following : |
“ In General . So long as Landlord shall not be in default under this Lease, Tenant will, except when prevented from so doing by Force Majeure or by other causes beyond its reasonable control and subject to the provisions of the Articles captioned “Subletting and Assigning,” “Damage Clause,” and “Condemnation” during the Term of this Lease, operate or cause to be operated a ski resort in the Ski Facility (such covenant being herein called “ Tenant's Operating Covenant ”).”
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7. Counterparts . This Amendment may be executed at different times and in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment by facsimile or electronic mail shall be as effective as delivery of a manually executed counterpart of this Amendment. In proving this Amendment, it shall not be necessary to produce or account for more than one such counterpart signed by the party against whom enforcement is sought. |
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8. Successors and Assigns . This Amendment shall inure to the benefit of and be binding upon Landlord and Tenant and their respective representatives, successors and assigns. |
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9. Affirmation of Lease . All other terms and provisions of the Lease that are not specifically modified by this Amendment shall remain in full force and effect, unmodified by the terms of this Amendment. All references herein or in the Lease to the “Lease” shall mean and refer to the Lease as amended by this Amendment. |
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, Landlord and Tenant have caused this Amendment to be duly executed as of the day and year first above written.
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/s/Craig L. Evans _Craig L. Evans _________ Vice Pres/Secretary _____
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/s/Stephen Mueller __Stephen Mueller ________ Vice President ___________
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“Landlord”
EPT MAD RIVER, INC., a Missouri corporation
By : /s/Craig L. Evans Name: Craig L. Evans Title: Vice Pres/Secretary |
“Tenant”
MAD RIVER MOUNTAIN, INC., a Missouri corporation
By: /s/Stephen Mueller Name: Stephen Mueller Title: Vice President |
GUARANTOR’S CONSENT
The undersigned Guarantor of the Lease hereby (i) acknowledges and consents to the terms of the foregoing Amendment, (ii) reaffirms the full force and effect of its Guaranty dated November 17, 2005 (the “ Guaranty ”), as of the day and year first above written, (iii) agrees that the Guaranty guarantees payment and performance of all Obligations, as defined in the Guaranty, as modified pursuant to this Amendment, and (iv) absolutely, unconditionally and irrevocably guarantees the prompt, full, and faithful performance of all of the terms, covenants and provisions of this Amendment by the Tenant to Landlord and Landlord's successors and assigns, including, but not limited to, the full, prompt and complete performance by the Tenant of all covenants, conditions and provisions in this Amendment required to be performed by the Tenant, including but not limited to the construction and completion of the Tenant Improvements thereunder.
PEAK RESORTS, INC.,
a Missouri corporation
By: /s/Stephen Mueller
Name: Stephen Mueller
Title: Vice President
Exhibit A
Acknowledgement of Third Party Beneficiary
This Acknowledgment of Third Party Beneficiary is executed this ____________ day of __________________, 20__, by ______________________ (" General Contractor "), a contractor retained by Mad River Mountain, Inc., a Missouri corporation (" Tenant ") to perform certain work and services for EPT Mad River, Inc., a Missouri corporation (together with its successors and assigns, collectively, " Landlord ") and Tenant relating to the construction of a new ski area base lodge and related improvements on that certain tract of real estate at Mad River Mountain Ski Resort in Bellefountaine, Ohio (the " Project "). In consideration of the contract(s) between Tenant and General Contractor (the " Construction Contract "), relating to construction of such improvements and construction and performance of such site improvement work and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, General Contractor agrees as follows:
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General Contractor acknowledges and agrees that General Contractor is responsible to complete the Work required by the Construction Contract in accordance with the terms thereof, in accordance with the plans and specifications for the Project, and in compliance with all applicable codes, ordinances and laws. |
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General Contractor acknowledges that the Project is being performed for the benefit of Landlord and Tenant. In addition, General Contractor hereby acknowledges and agrees that Landlord is an expressly intended third-party beneficiary of the Construction Contract. General Contractor agrees that Landlord's status as an intended third-party beneficiary does not constitute or create a contractual relationship between Landlord and General Contractor and does not allow General Contractor to enforce the Construction Contract directly against Landlord. However, General Contractor agrees that as an intended third-party beneficiary, Landlord shall have the right to enforce the terms of the Construction Contract directly against General Contractor, without accepting any assignment of the Construction Contract, and that in such event Landlord shall be entitled to full and direct performance from General Contractor of the Construction Contract and all warranties provided therein. Specifically, in this regard, General Contractor acknowledges and agrees that it shall be directly and fully responsible to Landlord for the work and services provided by General Contractor on the Project and for all non-conformities, defects or deficiencies in such work and services provided by General Contractor for the Project. In addition, General Contractor hereby agrees that all indemnities and insurance coverages procured by General Contractor under the Construction Contract shall include and run to the benefit of Landlord and its agents, employees, officers and servants. |
____________________________________,
a __________________________________
By:
Print Name : __________________________
Title:_____ ___________________________
dwwww
Exhibit 21.1
SUBSIDIARIES OF PEAK RESORTS, INC.
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Name of Subsidiary |
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State of
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Boulder View Tavern, Inc. |
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Pennsylvania |
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Deltrecs, Inc. |
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Ohio |
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Boston Mills Ski Resort, Inc. (subsidiary of Deltrecs, Inc.) |
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Ohio |
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Brandywine Ski Resort, Inc. (subsidiary of Deltrecs, Inc.) |
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Ohio |
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Hidden Valley Golf and Ski, Inc. |
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Missouri |
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Hunter Mountain Acquisition, Inc. |
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Missouri |
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Hunter Mountain Ski Bowl, Inc. |
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New York |
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Hunter Mountain Festivals, Ltd. |
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New York |
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Hunter Mountain Rentals, Inc. |
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New York |
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Hunter Resort Vacations, Inc. |
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New York |
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Hunter Mountain Base Lodge, Inc. |
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New York |
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Frosty Land, Inc. |
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New York |
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JFBB Ski Areas, Inc. |
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Missouri |
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JFBB LQ, Inc. (subsidiary of JFBB Ski Areas, Inc.) |
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Pennsylvania |
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BBJF LQ, Inc. (subsidiary of JFBB Ski Areas, Inc.) |
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Pennsylvania |
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L.B.O. Holding, Inc. |
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Maine |
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Mad River Mountain, Inc. |
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Missouri |
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Mount Snow, Ltd. |
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Vermont |
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Carinthia Group 1, L.P. (subsidiary of Mount Snow, Ltd.) |
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Vermont |
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Carinthia Ski Lodge LLC (subsidiary of Mount Snow, Ltd.) |
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Vermont |
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Mount Snow Develop and Build LLC (subsidiary of Mount Snow, Ltd.) |
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Vermont |
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Mount Snow GP Services, LLC (subsidiary of Mount Snow, Ltd.) |
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Vermont |
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West Lake Water Project LLC (subsidiary of Mount Snow, Ltd.) |
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Vermont |
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Paoli Peaks, Inc. |
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Missouri |
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Resort Holdings, L.L.C. |
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Missouri |
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S N H Development, Inc. |
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Missouri |
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Snow Creek, Inc. |
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Missouri |
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Sycamore Lake, Inc. |
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Ohio |
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WC Acquisition Corp. |
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New Hampshire |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in the Registration Statement (No. 333-201525) on Form S-8 of Peak Resorts, Inc. and Subsidiaries of our report dated July 14, 2016, relating to the consolidated financial statements Peak Resorts, Inc. and Subsidiaries, appearing in this Annual Report on Form 10-K of Peak Resorts, Inc. and Subsidiaries for the year ended April 30, 2016.
/s/ RSM US LLP
St. Louis, Missouri
July 14, 2016
EXHIBIT 31.1
CERTIFICATION OF THE CHIEF EXECUTIVE OFFICER
PURUANT TO SECTION 302 OF THE
SARBANES-OXLEY ACT OF 2002
I, Timothy D. Boyd, certify that:
1. I have reviewed this annual report on Form 10-K of Peak Resorts, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b) Designed such internal control over financial reporting , or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c ) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d ) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
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Date: July 14, 2016 |
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/s/ Timothy D. Boyd |
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Timothy D. Boyd Chief Executive Officer and Director (Principal Executive Officer) |
EXHIBIT 31.2
CERTIFICATION OF THE CHIEF FINANCIAL OFFICER
PURUANT TO SECTION 302 OF THE
SARBANES-OXLEY ACT OF 2002
I, Stephen J. Mueller, certify that:
1. I have reviewed this annual report on Form 10-K of Peak Resorts, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b) Designed such internal control over financial reporting , or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c ) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d ) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
a)All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
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Date: July 14, 2016 |
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/s/ Stephen J. Mueller |
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Stephen J. Mueller Chief Financial Officer and Director (Principal Financial Officer) |
EXHIBIT 31. 3
CERTIFICATION OF THE CHIEF EXECUTIVE OFFICER
PURUANT TO SECTION 302 OF THE
SARBANES-OXLEY ACT OF 2002
I, Timothy D. Boyd, certify that:
1. I have reviewed this annual report on Form 10-K /A of Peak Resorts, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b) Designed such internal control over financial reporting , or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c ) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d ) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
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Date: July 1 5 , 2016 |
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/s/ Timothy D. Boyd |
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Timothy D. Boyd Chief Executive Officer and Director (Principal Executive Officer) |
EXHIBIT 31. 4
CERTIFICATION OF THE CHIEF FINANCIAL OFFICER
PURUANT TO SECTION 302 OF THE
SARBANES-OXLEY ACT OF 2002
I, Stephen J. Mueller, certify that:
1. I have reviewed this annual report on Form 10-K /A of Peak Resorts, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b) Designed such internal control over financial reporting , or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c ) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d ) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
a)All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
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Date: July 1 5 , 2016 |
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/s/ Stephen J. Mueller |
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Stephen J. Mueller Chief Financial Officer and Director (Principal Financial Officer) |
EXHIBIT 32.1
CERTIFICATIONS OF CHIEF EXECUTIVE OFFICER AND
CHIEF FINANCIAL OFFICER
PURSUANT TO 18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
I, Timothy D. Boyd, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that the Annual Report on Form 10-K of Peak Resorts, Inc. (the “Company”) for the fiscal year ended April 30, 2016 fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and that information contained in such Annual Report on Form 10-K fairly presents, in all material respects, the financial condition and results of operations of the Company.
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Date: July 14, 2016 |
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By: /s/ Timothy D. Boyd Name: Timothy D. Boyd Title: Chief Executive Officer
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I, Stephen J. Mueller, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that the Annual Report on Form 10-K of Peak Resorts, Inc. (the “Company”) for the fiscal year ended April 30, 2016 fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and that information contained in such Annual Report on Form 10-K fairly presents, in all material respects, the financial condition and results of operations of the Company.
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Date: July 14, 2016 |
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By: /s/ Stephen J. Mueller Name: Stephen J. Mueller Title: Chief Financial Officer
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EXHIBIT 32. 2
CERTIFICATIONS OF CHIEF EXECUTIVE OFFICER AND
CHIEF FINANCIAL OFFICER
PURSUANT TO 18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
I, Timothy D. Boyd, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that the Annual Report on Form 10-K /A of Peak Resorts, Inc. (the “Company”) for the fiscal year ended April 30, 2016 fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and that information contained in such Annual Report on Form 10-K /A fairly presents, in all material respects, the financial condition and results of operations of the Company.
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Date: July 1 5 , 2016 |
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By: /s/ Timothy D. Boyd Name: Timothy D. Boyd Title: Chief Executive Officer
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I, Stephen J. Mueller, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that the Annual Report on Form 10-K /A of Peak Resorts, Inc. (the “Company”) for the fiscal year ended April 30, 2016 fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and that information contained in such Annual Report on Form 10-K /A fairly presents, in all material respects, the financial condition and results of operations of the Company.
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Date: July 1 5 , 2016 |
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By: /s/ Stephen J. Mueller Name: Stephen J. Mueller Title: Chief Financial Officer
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