SECOND AMENDMENT TO LOAN AGREEMENT
Exhibit
10.11(c)
SECOND
AMENDMENT TO LOAN AGREEMENT
THIS
SECOND AMENDMENT TO LOAN AGREEMENT (this “Amendment”)
is
dated this 5th day of July, 2006, 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, as amended by that certain First Amendment to
Loan
Agreement dated effective September 12, 2005 (collectively, 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 amend the definition of
Net
Sales Proceeds 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 definition of
“Net Sales Price” as follows:
“Net
Sales Proceeds”
shall
mean (a) with respect to a request for a release of a Unit from the lien of
the
Security Instrument, the actual sales price of the Unit pursuant to a Qualified
Purchase Contract less Xxxxxxx Money Deposit, if applicable, and less
commissions and closing costs paid by Borrower to third parties; provided,
however, in no event shall such commissions and closing costs exceed ten percent
(10%) of the actual Unit sales price; (b) with respect to a casualty, the net
amount of all Insurance Proceeds received by Administrative Agent pursuant
to
any Policies as a result of any Casualty, after deduction of Administrative
Agent’s costs and expenses (including, but not limited to, reasonable counsel
fees), if any, in collecting same, and (c) with respect to a Condemnation,
the net amount of any Condemnation Award, after deduction of Administrative
Agent’s costs and expenses (including, but not limited to, reasonable counsel
fees), if any, in collecting same.
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2. 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.
3. 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.
4. 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.
5. 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.
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.
[Remainder
of Page Intentionally Left Blank-Signature Page
Follows]
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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/
Xxxx X. Xxxx
Name:
Hack X. Xxxx
Title:
Senior Vice President
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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
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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
Name:
Xxxxxxx X. Xxxxx
Title:
Senior Executive Vice President
VAIL
RESORTS, INC., a Delaware corporation
By:
/s/
Xxxxxxx X. Xxxxx
Name:
Xxxxxxx X. Xxxxx
Title:
Senior Executive Vice President
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