FIRST AMENDMENT CONSTRUCTION LOAN AGREEMENT
Exhibit
10.11(b)
FIRST
AMENDMENT CONSTRUCTION LOAN AGREEMENT
THIS
FIRST AMENDMENT TO CONSTRUCTION LOAN AGREEMENT (this “Amendment”)
dated
December 1, 2005, but effective as of September 12, 2005, by and among XXXX
CREEK PLACE, LLC, a Colorado limited liability company (the “Borrower”);
each
of the lenders that is a signatory hereto identified under the caption “LENDERS”
on the signature pages hereto (individually, a “Lender”
and,
collectively, the “Lenders”);
and
U.S. BANK NATIONAL ASSOCIATION, a national banking association, as
administrative agent for the Lenders (in such capacity, together with its
successors in such capacity, the “Administrative
Agent”).
RECITALS:
A. On
July
19, 2005, Borrower, Lenders and Administrative Agent entered into that certain
Construction Loan Agreement (the “Construction
Loan Agreement”)
pursuant to which the Lenders made a Commitment to Borrower to fund Loans in
the
maximum amount of $30,000,000 upon the terms and conditions set forth in the
Construction Loan Agreement. Capitalized terms used herein without further
definition shall have the meanings given such terms in the Construction Loan
Agreement.
B. The
parties hereto desire to amend the Loan Agreement to, among other things, (i)
provide for a second measure of Release Price, and (ii) to amend certain
financial reporting covenants all as more particularly set forth
herein.
NOW,
THEREFORE, in consideration of the foregoing, the mutual covenants contained
in
this Amendment, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Amendment.
a. Section
1.01, Certain
Defined Terms,
of the
Construction Loan Agreement is hereby amended by restating the definitions
of
“Guarantor” and “Release Price” in their entirety and adding a new definition
“Par Loan Value” as follows:
“Guarantor”
shall
mean each of Vail Resorts, Inc., a Delaware corporation and The Vail
Corporation, a Colorado corporation, and sometimes referred to collectively
herein as “Guarantor.”
“Release
Price”
shall
mean the amount paid by Borrower to Administrative Agent to obtain a release
or
partial release of the Security Instrument. The Release Price for each Unit
shall be equal to the greater of (i) Net Sales Proceeds for each Unit; or (ii)
125% of the Par Loan Value for the Unit being released.
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“Par
Loan Value”
shall
mean the amount for each Unit set forth on Exhibit
F
attached
hereto.
b. Section
9.01(a), Information,
of the
Loan Agreement, is hereby amended by restating that section in its entirety
as
follows:
9.01(a) Borrower
shall deliver to Administrative Agent:
(i) within
one hundred twenty (120) days after the close of each fiscal year of Borrower,
Borrower prepared annual financial statements, in form reasonably satisfactory
to Administrative Agent and certified by Borrower as being true and correct
in
all material respects, including a balance sheet, a statement of cash flows
and
a statement of profit and loss setting forth in comparative form figures for
the
preceding fiscal year, prepared in accordance with GAAP
(ii) within
one hundred twenty (120) days after the close of each fiscal year of Guarantor
Vail Resorts, Inc., audited annual financial statements of Vail Resorts, Inc.,
including a balance sheet, a statement of cash flows, and a statement of profit
and loss setting forth, in comparative form, figures for the preceding fiscal
year, prepared in accordance with GAAP.
(iii) within
forty-five (45) days after the close of each fiscal quarter of Vail Resorts,
Inc., quarterly financial statements of Guarantor Vail Resorts, Inc., in a
form
consistent with the financial statements previously provided to Administrative
Agent by Vail Resorts, Inc., certified as true and correct by an authorized
officer of Vail Resorts, Inc., and containing a balance sheet, statement of
cash
flows and a statement of profit and loss.
(iv) within
ninety (90) days after the close of each fiscal year of Guarantor Vail Resorts,
Inc., a statement of annual cash flow projections for Vail Resorts,
Inc.
(v) within
five (5) days after furnishing to the Lenders under the Vail Corporation’s
Principal Bank Credit Facility, a copy of the compliance certificate required
thereunder.
2. Section
12.02(a), Remedies,
of the
Loan Agreement, is hereby amended by restating that section in its entirety
as
follows:
(a) In
the
case of an Event of Default other than one referred to in Sections
12.01 (d)
or
12.01
(g)
with
respect to Borrower, terminate the Commitments and/or declare the Outstanding
Principal Amount, and the accrued interest on the Loans and all other amounts
payable by Borrower hereunder (including any amounts payable under Section
5.05)
and
under the Notes and the other Loan Documents to be forthwith due and payable
whereupon such amounts shall be immediately due and payable without presentment,
demand, protest or other formalities of any kind, all of which are hereby
expressly waived by Borrower; provided,
however,
that in
the case of the occurrence of an Event of Default referred to in Sections
12.01 (d)
or
12.01(g)
with
respect to a Borrower Party, the Commitments shall automatically be terminated
and the Outstanding Principal Amount, and the accrued interest on, the Loans
and
all other amounts payable by Borrower hereunder (including any amounts payable
under Section
5.05),
under
the Notes and the other Loan Documents shall automatically become immediately
62
due
and
payable without presentment, demand, protest or other formalities of any kind,
all of which are hereby expressly waived by Borrower;
3. Representations
and Warranties.
Borrower hereby certifies to Lenders and Administrative Agent that as of the
date of this Amendment (taking into consideration the transactions contemplated
by this Amendment): (a) all of Borrower’s representations and warranties
contained in the Construction Loan Agreement or any other Loan Documents are
true, accurate, and complete in all material respects, and (b) after giving
effect to this Amendment no Default or Event of Default has occurred under
the
Construction Loan Agreement or any other Loan Document. Without limiting the
generality of the foregoing, Borrower represents and warrants that the execution
and delivery of this Amendment has been authorized by all necessary action
on
the part of Borrower, that each person executing this Amendment on behalf of
Borrower is duly authorized to do so, and that this Amendment constitutes the
legal, valid, binding and enforceable obligation of Borrower.
4. Additional
Documents.
Borrower shall execute and deliver to Administrative Agent at anytime and from
time to time such additional amendments to the Construction Loan Agreement,
or
any other Loan Documents as Administrative Agent may reasonably request to
confirm and carry out the transactions contemplated hereby.
5. Continuation
of the Construction Loan Agreement.
Except
as specified in this Amendment, the provisions of the Construction Loan
Agreement, and all other Loan Documents remain in full force and effect. If
there is a conflict between the terms of this Amendment and those of the
Construction Loan Agreement, or any other Loan Documents, the terms of this
Amendment will control.
6. Miscellaneous.
a. This
Amendment is governed by and must be construed under the laws of the State
of
Colorado. This Amendment is binding upon and inures to the benefit of the
parties hereto and their successors and permissible assigns.
b. This
Amendment may be executed in two or more counterparts, each of which shall
be
deemed an original and all of which together shall constitute one
instrument.
c. This
Amendment and all documents to be executed and delivered hereunder may be
delivered in the form of a facsimile copy, subsequently confirmed by delivery
of
the originally executed document.
d. Time
is
of the essence hereof with respect to the dates, terms and conditions of this
Amendment and the documents to be delivered pursuant hereto.
e. This
Amendment constitutes the entire agreement among Borrower, Lenders and
Administrative Agent Concerning the subject matter of this Amendment. This
Amendment may not be amended or modified orally, but only by a written agreement
executed by Borrower, Lenders and Administrative Agent and designated as an
amendment or modification of the Construction Loan Agreement.
63
f. If
any
provision of this Amendment is held invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions of this
Amendment shall not be impaired thereby.
g. The
section headings herein are for convenience only and must not affect the
construction hereof.
h. Except
as
expressly provided herein, execution of this Amendment is not intended to and
shall not constitute a waiver by Lenders or Administrative Agent of any Default
or Event of Default under the Construction Loan Agreement, or any Loan
Documents.
i. Lenders
acknowledge and agree that if Borrower delivers, within thirty (30) days of
the
date hereof, any of the information required pursuant to Section 9.01 (a) of
the
Construction Loan Agreement (as amended by Section 1 (b) above) that is due
but
has not yet been delivered, Borrower shall be deemed to be in compliance with
its obligations under that Section.
[Remainder
of Page Intentionally Left Blank-Signature Page
Follows]
64
IN
WITNESS WHEREOF, the parties have executed this Amendment the date first stated
above for the purposes set forth herein.
BORROWER:
XXXX
CREEK PLACE, LLC, a Colorado limited liability company
By: The
Vail
Corporation, a Colorado corporation, its Managing Member
By:
/s/
Xxxxxxx X. Xxxxx
Xxxxxxx
X. Xxxxx
Senior
Vice President & Chief Financial Officer
LENDERS:
U.S.
BANK
NATIONAL ASSOCIATION, a national banking association
By:
/s/
Xxxxxxx X. Xxxxxxxxxx
Xxxxxxx
X. Xxxxxxxxxx
Vice
President
XXXXX
FARGO BANK, N.A., a national banking association
By:
/s/
Xxxx X. XxXxxxx
Xxxx
X.
XxXxxxx
Senior
Vice President
ADMINISTRATIVE
AGENT:
U.S.
BANK
NATIONAL ASSOCIATION, a national banking association
By:
/s/
Xxxxxxx X. Xxxxxxxxxx
Xxxxxxx
X. Xxxxxxxxxx
Vice
President
65
Guarantor
acknowledges the foregoing amendments to the Construction Loan Agreement and
that the obligations of Guarantor under the Completion Guaranty remain in full
force and effect.
GUARANTOR:
THE
VAIL
CORPORATION, a Colorado corporation
By:
/s/
Xxxxxxx X. Xxxxx
Xxxxxxx
X. Xxxxx
Senior
Vice President & Chief Financial Officer
VAIL
RESORTS, INC., a Delaware corporation
By:
/s/
Xxxxxxx X. Xxxxx
Xxxxxxx
X. Xxxxx
Senior
Vice President & Chief Financial Officer
66
EXHIBIT
F
Loan
Amount
|
$30,000,000
|
|
Retail
Value
|
$63,900,000
|
|
Loan
to "Retail" Value
|
0.46948357
|
|
Unit
|
Retail
Value
|
Par
Loan Value
|
1
|
$3,050,000
|
$1,431,925
|
2
|
$3,950,000
|
$1,854,460
|
3
|
$3,550,000
|
$1,666,667
|
4
|
$3,650,000
|
$1,713,615
|
5
|
$4,500,000
|
$2,112,676
|
6
|
$4,600,000
|
$2,159,624
|
7
|
$3,850,000
|
$1,807,512
|
8
|
$4,650,000
|
$2,183,099
|
9
|
$3,650,000
|
$1,713,615
|
10
|
$4,650,000
|
$2,183,099
|
11
|
$4,550,000
|
$2,136,150
|
12
|
$4,650,000
|
$2,183,099
|
13
|
$3,650,000
|
$1,713,615
|
14
|
$3,550,000
|
$1,666,667
|
15
|
$3,450,000
|
$1,619,718
|
16
|
$3,950,000
|
$1,854,460
|
TOTAL
|
$63,900,000
|
$30,000,000
|
67