EXHIBIT 10.63
GUARANTY
THIS GUARANTY, dated as of July 3, 1997 ("Guaranty"), is made by ASC
HOLDINGS, INC., a Maine corporation (together with its successors and assigns,
the "Guarantor"), in favor of WOLF MOUNTAIN RESORTS, L.C., a Utah limited
liability company ("Lender"), and its successors and assigns, in connection with
the Promissory Note dated as of the date hereof, given by ASC UTAH, INC., a
Maine corporation ("Maker"), to Lender (the "Note").
W I T N E S S E T H:
WHEREAS, Maker is a wholly-owned subsidiary of Guarantor; and
WHEREAS, Lender has agreed to sell to Maker and Maker has agreed to
purchase from Lender those certain buildings, improvements and personal property
constituting a portion of, or used in connection with, the Wolf Mountain Ski
Resort and described more fully in that Purchase and Sale Agreement by and
between Maker and Lender and dated as of the date of hereof ("Purchase and Sale
Agreement"); and
WHEREAS, the execution and delivery of the Note by the Maker and the
Guaranty by the Guarantor are conditions to the obligation of Lender to close
the transactions contemplated by the Purchase and Sale Agreement;
NOW, THEREFORE, in consideration of the premises and other valuable
considerations, the receipt and sufficiency of which are hereby acknowledged,
the Guarantor hereby agrees as follows:
ARTICLE I
GUARANTY
SECTION 1.1 The Guaranty. Guarantor hereby unconditionally and irrevocably
guarantees to Lender (a) the timely, complete and full performance by Maker of
all of the obligations of Maker under the terms of the Note, and (b) the due,
complete and punctual payment of all sums now or hereafter required to be paid
to Lender by Maker under the Note (to the extent not theretofore paid by
Guarantor or Maker) as and when the same shall become due and payable according
to the terms thereof. The obligations of the Guarantor under this Guaranty are
independent of the obligations of Lender and Maker under the Note, the Purchase
and Sale Agreement and the Ground Lease Agreement of even date herewith by and
between Maker and Lender, and Lender may proceed directly to enforce all of its
rights under this Guaranty without proceeding against or joining Maker or any
other person; provided, that the Guarantor shall have the same defenses to
performance hereunder that Maker has under any obligations guaranteed hereby,
except that Guarantor shall have no defense to performance based on the
bankruptcy, insolvency, moratorium, reorganization or other similar proceeding
affecting generally the enforcement of creditors' rights of Lender.
SECTION 1.2 Guaranty Unconditional. This Guaranty is a guaranty of
payment, not collection. The obligations of the Guarantor under this Article I
(the "Obligations") shall be unconditional, absolute, and irrevocable and,
without limiting the generality of the foregoing, shall not be released,
discharged or otherwise affected by:
(a) any extension, renewal, settlement, compromise, waiver or release in
respect of any obligation of Lender or Maker under the Note or any other
document;
(b) any modification or amendment of or supplement to the Note or any
other document;
(c) any change in the corporate existence, structure or ownership of the
Guarantor, Lender or Maker or any insolvency, bankruptcy, moratorium,
reorganization or other similar proceeding affecting generally the enforcement
of creditors' rights of Lender or Maker;
(d) any failure, omission or delay to enforce, assert, or exercise any
right, power, privilege or remedy conferred on Lender by the terms of the Note
or any other document or the waiver of any default thereunder; or
(e) any other occurrence, circumstance, happening or event whatsoever,
whether foreseen or unforeseen, and any other circumstance which might otherwise
constitute a legal or equitable defense, release or discharge of the liabilities
of the Guarantor or which might otherwise limit recourse against the Guarantor.
SECTION 1.3 Continuing Guaranty. This Guaranty shall be a continuing
guaranty and shall cover and secure any ultimate balance owing to Lender in
respect of the Obligations, including all costs, charges and any expenses which
they or any one or more of them may incur in enforcing or obtaining performance
or the payment of the sums of money due to them hereunder, but no such party
shall be obliged to seek any recourse against Maker or other persons or the
collateral it may hold, if any, for the Obligations before being entitled to
payment from the Guarantor. Lender may compromise or otherwise change the terms
of any of the Obligations hereby guaranteed to it, in each case without consent
of the Guarantor and without exonerating in whole or in part the Guarantor. The
Guarantor acknowledges that this Guaranty has been delivered free of any
conditions other than those set forth herein.
ARTICLE II
MISCELLANEOUS
SECTION 2.1 Notices. All notices, requests, demands and other
communications required or permitted to be given under this Guaranty shall be
deemed to have been duly given if in writing and delivered personally, or five
(5) business days after being mailed first class, postage prepaid, registered or
certified mail, or the next business day after being delivered to a nationally
recognized overnight courier service that keeps receipts of delivery or upon
delivery of a telecopy (provided it is later confirmed by one of the preceding
methods), as follows:
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If to Lender:
WOLF MOUNTAIN RESORTS, L.C.
0000 Xxxxxxxx Xxxxx
Xxxx Xxxx, Xxxx 00000
With a copy to:
Xxxxxxxxx & Xxxxxxxxx, L.L.P.
South Tower, Pennzoil Place
000 Xxxxxxxxx Xx., Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Attn: Xxxxx X. Xxxxxxxx, Xx.
If to Guarantor:
ASC HOLDINGS, INC.
c/o American Skiing Company
Sunday Xxxxx Xxxx
X. X. Xxx 000
Xxxxxx, Xxxxx 00000
Any party may change the address to which such communications are to be
directed to it by giving written notice to the other in the manner specified in
this Section 3.1.
SECTION 2.2 Amendments and Waivers. Any provision of this Guaranty may be
amended or waived if, and only if, such amendment or waiver is in writing and is
signed by Lender and the Guarantor.
SECTION 2.3 Applicable Law. This Guaranty shall be construed in accordance
with and governed by the laws of the State of Utah without regard to any choice
of law provisions existing thereunder.
SECTION 2.4 Successors and Assigns. All of the provisions of this Guaranty
shall be binding upon the Guarantor and its permitted successors and assigns.
None of the interests, rights or obligations of the Guarantor hereunder shall be
assignable (whether by operation of law or otherwise) without the consent of
Lender, which shall not be unreasonably withheld.
SECTION 2.5 Remedies. (a) Upon any failure by the Guarantor to comply with
its Obligations, Lender shall be authorized to demand specific performance of
such provisions upon five (5) days' prior written notice to the Guarantor. The
Guarantor hereby waives, to the extent permitted by applicable law, any defense
based on the adequacy of a remedy at law which might be asserted as a bar to the
remedy of specific performance of the Obligations in any action brought therefor
by Lender.
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(b) The Guarantor hereby waives presentment, demands for performance,
notices of nonperformance, and any other notice of any kind in connection with
the Guaranty, other than the notice provided by Section 2.5 above.
SECTION 2.6 Expenses. If the Guarantor shall default in any of its
obligations hereunder, the Guarantor shall also pay the reasonable out-of-pocket
costs of Lender (including reasonable fees and expenses of legal counsel)
incurred in connection with the enforcement of this Guaranty against it.
SECTION 2.7 Waiver of Subrogation. Notwithstanding any payment or payments
made by the Guarantor hereunder, the Guarantor shall not be entitled to, and
shall not be subrogated to, any of the rights of Lender against Maker for the
payment of the Obligations. If, notwithstanding the preceding sentence, any
amount shall be paid to the Guarantor on account of such subrogation rights at
any time when any of the Obligations shall not have been paid in full, such
amount shall be held by the Guarantor in trust for Lender, as the case may be,
segregated from other funds of the Guarantor and, if payment of the Obligations
by Guarantor is otherwise due, be turned over to Lender in the exact form
received by the Guarantor (duly endorsed by the Guarantor to Lender if
required), to be applied against the Obligations.
SECTION 2.8 Reliance, Etc. All liabilities to which this Guaranty applies
or may apply under the terms hereof shall be conclusively presumed to have been
created in reliance hereon. No failure or delay on the part of Lender in
exercising any right, power or privilege hereunder and no course of dealing
between the Guarantor or Lender shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, power or privilege. The rights, powers
and remedies herein expressly provided are cumulative and not exclusive of any
rights, powers or remedies which Lender would otherwise have. No notice to or
demand on the Guarantor in any case shall entitle the Guarantor to any other
further notice or demand in similar or other circumstances or constitute a
waiver of the rights of Lender to any other or further action in any
circumstances without notice or demand.
SECTION 2.9 Delivery of Documents. The Guarantor acknowledges that
executed (or conformed) copies of the Note and the Purchase and Sale Agreement
have been delivered to it.
SECTION 2.10 Judgments. If claim is ever made upon Lender for repayment or
recovery of any amount or amounts received from or on behalf of Maker or the
Guarantor in payment or on account of any of the Obligations and Lender repays
all or part of said amount by reason of (a) any judgment, decree or order of any
court or administrative body having jurisdiction over Lender or any of Lender's
property or (b) any settlement or compromise of any such claim effected by
Lender with any such claimant (including Guarantor and Maker), then and in such
event the Guarantor agrees that any such judgment, decree, order, settlement or
compromise shall be binding upon it, notwithstanding any revocation hereof and
the Guarantor shall be and remain liable to Lender hereunder for the amount so
repaid or recovered to the same extent as if such amount had never originally
been received by Lender.
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed by its authorized officer as of the date first above written.
ASC HOLDING, INC.
By: /s/ Xxxxxxxx Xxxxxxxx
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Name: Xxxxxxxx Xxxxxxxx
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Title: Vice President
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