AMENDED AND RESTATED COMPLETION GUARANTY AGREEMENT
Exhibit
10.11 (d)
AMENDED
AND RESTATED COMPLETION GUARANTY AGREEMENT
THIS
AMENDED AND RESTATED COMPLETION GUARANTY AGREEMENT (this “Guaranty”),
dated
December 1, 2005, but made effective as of September 12, 2005, is by and between
U.S. BANK NATIONAL ASSOCIATION, a national banking association as Administrative
Agent under the Construction Loan Agreement for the Lenders therein
(hereinafter, together with its successors and assigns, referred to as the
“Bank”),
THE
VAIL CORPORATION, a Colorado corporation and VAIL RESORTS, INC., a Delaware
corporation (hereinafter referred to, collectively, as the “Guarantor”).
Recitals
A. Bank
and
Guarantor, The Vail Corporation, entered into that certain Completion Guaranty
Agreement dated as of July 19, 2005, (the “Original
Guaranty”)
pursuant to which Vail Corporation agreed to the completion of construction
of
Improvements in the manner required by the Construction Loan Agreement by and
between Bank and XXXX CREEK PLACE, LLC, a Colorado limited liability company
(“Borrower”)
dated
July 19, 2005 (the “Construction
Loan Agreement”),
which
Construction Loan Agreement is evidenced by one or more promissory notes in
the
maximum aggregate principal amount not to exceed $30,000,000 (hereinafter
referred to, collectively, as the “Note”)
.
Capitalized terms that are used but not defined herein shall have the meanings
given to such terms in the Construction Loan Agreement.
B. On
September 12, 2005, Xxxxx Fargo Bank, N.A., a national banking association
(“Xxxxx Fargo”) agreed to become an additional lender as permitted by the
Construction Loan Agreement.
C. As
a
material inducement to Xxxxx Fargo to become an additional lender, and as
consideration therefore, Bank and Guarantor desire to amend and restate the
Original Guaranty in its entirety to add Vail Resorts, Inc., as an additional
Guarantor all as more particularly set forth herein.
Agreement
NOW,
THEREFORE, in consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Bank and the undersigned Guarantor agree as follows:
1. Subject
to the terms hereof, the Guarantor unconditionally and absolutely guarantees
to
the Bank, following an Event of Default by Borrower, completion of construction
of the Improvements (as defined in the Construction Loan Agreement) in the
manner required by the Construction Loan Agreement, the Note and the other
documents and instruments executed in connection therewith (all of the foregoing
being hereinafter collectively referred to as the “Loan
Documents”).
Specifically, following an Event of Default under the Loan Documents by
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Borrower
and written request to Guarantor from Bank for performance hereunder, the
Guarantor agrees:
(a) to
perform, complete, and pay for the construction of the Improvements in
accordance with the Plans and Specifications, as such Plans and Specifications
have been or may be modified or amended from time to time, within the time
period allotted therefor (if any) and to pay all costs of said construction
and
all costs associated therewith if the Borrower shall fail to perform or complete
such work as required by the Construction Loan Agreement;
(b) provided
that such actions by the Bank are authorized pursuant to the Loan Documents
and
provided Guarantor has failed to perform its obligations pursuant to Paragraph
1(a) hereof, to reimburse the Bank for all costs and expenses incurred by the
Bank in taking possession of the property described in the deed of trust
securing the Note (hereinafter referred to as the “Property”)
and
constructing the Improvements (whether in whole or in part) in accordance with
the Plans and Specifications as approved at the time the Bank takes possession
of the Property subject to such modifications thereto as Bank shall determine
are reasonably necessary provided that the same shall not materially increase
Guarantor’s obligations hereunder (unless as a result of unforeseen site
conditions which have been confirmed by an engineer reasonably acceptable to
Guarantor), including, without limitation, any sums expended in excess of the
principal amount of the Note and whether or not construction is actually
completed;
(c) if
any
mechanic’s or materialman’s liens should be filed, or should attach, with
respect to the Property by reason of the construction undertaken pursuant to
the
Construction Loan Agreement, to cause the removal of such liens within 45 days
after the recording thereof, or the posting of security against the consequences
of their possible foreclosure and the procurement of title insurance policies
or
endorsements insuring the Bank against the consequences of the foreclosure
or
enforcement of such liens, if the Borrower shall fail to take such
actions;
(d) to
pay
the costs and fees of all contractors, architects and engineers employed by
the
Borrower or the Bank (to the extent permitted under the Loan Documents) to
complete the Improvements if said costs and fees are not paid by the
Borrower;
(e) to
pay
the premiums for all policies of insurance required to be furnished by the
Borrower pursuant to the Construction Loan Agreement if such premiums are not
paid by the Borrower and written request from Lender has been given to Guarantor
in connection with any of the foregoing provisions of this Paragraph 1;
and
(f) to
pay
all of the Bank’s reasonable costs and expenses, including, without limitation,
attorney’s fees, incurred in the enforcement of this Guaranty and the provisions
of the Loan Documents covered by this Guaranty.
2. Without
in any way limiting the generality of the foregoing, following written request
from Bank for performance by Guarantor hereunder to complete construction of
the
Improvements, Bank shall make available any undisbursed Commitments which are
not subject to legal impairment to disbursement pursuant to a court order,
a
mechanic’s or materialman’s lien, a bankruptcy proceeding or notice to disburser
and which have been designated in the
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Project
Budget for the payment of Project Costs directly related to the construction
of
the Improvements. Such funds shall be disbursed only upon satisfaction by
Guarantor of all requirements for disbursement set forth in the Construction
Loan Agreement and in accordance with the disbursement procedures set forth
in
the Construction Loan Agreement, and any amendments thereof, except that
Guarantor shall not be required to satisfy Borrower’s requirements set forth in
Sections 6.01 (d) and 6.02 (a) and (c)(i), (or to cure any Events of Default
by
Borrower in connection with the matters addressed in those sections) nor shall
Guarantor be obligated to repay to Bank and Lenders the Loans. In connection
with Guarantor’s obligations hereunder, Guarantor shall be entitled to all
rights of Borrower under the Construction Loan Agreement to reallocate the
Borrower Contingency Fund so long as Guarantor has satisfied the requirements
set forth in the preceding sentence. In the event that Guarantor does not
satisfy all of the requirements for disbursement of Loans set forth
hereinabove,
does
not
comply with the disbursement procedures set forth in the Construction Loan
Agreement following a request from Bank pursuant to Paragraph 1,
or any
representation warranty or certification made by Guarantor in the Representation
Agreement shall prove to be false or misleading:
(i) Bank shall have no further obligation to disburse any portion of the
Commitments to Guarantor; (ii) Bank may pursue whatever remedies it may have
available at law or in equity for breach of such terms and conditions; and
(iii)
at Bank’s option, to be exercised in its sole discretion, Guarantor shall
perform the Completion Obligations at its sole cost and expense without any
right or recourse to any portion of the Commitments or Bank may complete the
Project itself or cause the Project to be completed by a third party and charge
the entire cost thereof to Guarantor. In connection with the Guarantor’s
obligations hereunder, whenever it is necessary for Guarantor to cure an Event
of Default in order to satisfy any such requirement or procedure for
disbursements described herein, Guarantor shall have such time to cure an Event
of Default as may be granted by Bank, in its sole discretion, but in no event
less than ten (10) Business Days after Guarantor receives a request from Bank
under Paragraph 1 for performance hereunder.
3. This
is a
guaranty of performance and not of collection, and the Bank shall not be
required to take any action against the Borrower (other than providing such
notice to Borrower as is required by the Construction Loan Agreement) or resort
to any other security given for the performance of the Borrower’s obligations as
a precondition to the obligations of the Guarantor hereunder. Nothing herein
shall constitute a guaranty of repayment of the Loan by Guarantor.
4. The
Bank,
in its sole discretion, following the delivery of such notice to Borrower as
is
required by the Construction Loan Agreement, may proceed to exercise any right
or remedy which the Bank may have under this Guaranty or
the
Representation Agreement without
pursuing or exhausting any right or remedy which it may have against the
Borrower, against any other guarantor or against any other person or entity,
and
the Bank may proceed to exercise any right or remedy which the Bank may have
under this Guaranty without regard to any actions or omissions of the Borrower
or any other person or entity.
5. The
Guarantor authorizes the Bank, without notice to the Guarantor and without
impairing the liability of the Guarantor hereunder, to exercise the Bank’s right
to complete construction in accordance with the Construction Loan Agreement
pursuant to the Plans and Specifications, and, subject to Paragraph 1(b), to
add
expenses incurred during the course of such completion to the Borrower’s
principal obligations under the Loan (as defined in the
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Construction
Loan Agreement). The Guarantor acknowledges that the Bank has no obligation
to
exercise such right, and that the Bank is entitled to make expenditures toward
completion without actually completing construction. The Guarantor waives any
claims, rights or defenses resulting from (a) the Bank’s proper exercise of its
right to complete construction, and (b) the Bank’s failure to complete
construction. The Guarantor agrees that appropriate expenses to complete
construction in accordance with Paragraph 1(b) hereof, include, without
limitation, payments to release liens, payments to contractors, laborers,
materialmen and suppliers, purchase of equipment, services of experts, interest
on amounts advanced, and all additional categories of expense, both hard and
soft, set forth on the Project Budget defined in and attached to the
Construction Loan Agreement.
6. The
obligations of the Guarantor hereunder shall be direct and independent of any
obligations of the Borrower to the Bank and absolute and unconditional
irrespective of the validity, legality or enforceability of any of the Loan
Documents, or any other circumstances (except for those actions of the Bank
in
violation of the Loan Documents or applicable law) which might otherwise
constitute a legal or equitable discharge of a surety or guarantor (including,
without limitation, the finding or conclusions of any proceeding under the
federal Bankruptcy code or of similar present or future federal or state law),
it being agreed that the obligations of the Guarantor hereunder shall not be
discharged except by payment or performance as herein provided.
7. From
and
after the date that Guarantor satisfies the requirements for disbursements
of
Loans as set forth in paragraph 2 hereof, and so long as there shall occur
no
other Event of Default, interest shall accrue on the outstanding principal
balance of the Loans at the LIBOR-Based Rate . In addition, Bank agrees to
forbear pursuit of remedies against Borrower for Events of Default during any
period of time that Guarantor is performing its obligations hereunder and
satisfying the requirements for disbursement of Loans pursuant paragraph 2
hereof.
8. Without
limiting the generality of Paragraph 5 above, the Guarantor hereby consents
and
agrees that, at any time and from time to time:
(a) any
action may be taken under any of the Loan Documents in the exercise of any
remedy, power or privilege therein contained (including, without limitation,
the
acceleration of the maturity of the Note) or otherwise with respect thereto,
or
such remedy, power or privilege may be waived, omitted, or not
enforced;
(b) the
time
for the Borrower’s performance of or compliance with any term, covenant or
agreement on its part to be performed or observed under any of the Loan
Documents may be extended, or such performance or compliance waived, or failure
in or departure from such performance or compliance consented to;
(c) any
of
the Loan Documents (except this Guaranty), or any terms thereof may be amended
or modified in any respect (including without limitation, with respect to
interest on the Note); and
(d) the
Guarantor waives any rights it might otherwise have under Colorado Revised
Statutes §§ 00-00-000 or 00-00-000 (or under any corresponding future statute or
rule of
76
law
in
any jurisdiction) by reason of any release of fewer than all of the guarantors
of the obligations of the Guarantor hereunder, all in such manner and upon
such
terms as the Bank may deem proper, and without notice to or further assent
from
the Guarantor, and all without affecting this Guaranty or the obligations of
the
Guarantor hereunder, which shall continue in full force and effect until all
of
the obligations of the Guarantor hereunder shall have been fully paid and
performed.
9. The
Guarantor hereby waives notice of acceptance of this Guaranty, presentment,
demand, protest, notice of the occurrence of an event of default under the
Loan
Documents and any other notice of any kind whatsoever, with respect to any
or
all of the obligations of Guarantor hereunder and promptness in making any
claim
or demand hereunder; but no act or omission of any kind shall in any way affect
or impair this Guaranty.
10. The
Guarantor hereby represents and warrants as follows:
(a) The
Guarantor is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction indicated in the first paragraph hereof
and
has all requisite power and authority, corporate or otherwise, to conduct its
business, to own its properties and to execute and deliver, and to perform
all
of its obligations under, this Guaranty.
(b) The
execution, delivery and performance of this Guaranty by Guarantor will not
(i)
require any consent or approval of any person, (ii) violate any provision of
any
law, rule, regulation, order, writ, judgment, injunction, decree, determination
or award presently in effect having applicability to the Guarantor, or (iii)
result in a breach of or constitute a default under any indenture or loan or
credit agreement or any other agreement, lease or instrument to which the
Guarantor is a party or by which Guarantor or its properties may be bound or
affected; and the Guarantor is not in default under any such law, rule,
regulation, order, writ, judgment, injunction, decree, determination or award
or
any such indenture, agreement, lease or instrument.
(d) There
are
no actions, suits or proceedings pending or, to the knowledge of the Guarantor,
threatened against or affecting it or any of its assets before any court or
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, which, if determined adversely to the Guarantor, would
have
a material adverse effect on any of his financial condition, properties, or
operations.
(e) No
authorization, consent, approval, license, exemption of or filing or
registration with any court or governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, is or will be necessary
to the valid execution, delivery or performance by the Guarantor of this
Guaranty.
11. No
failure or delay on the part of the Bank in exercising any right, power or
remedy hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or remedy preclude any other or
further exercise thereof or the exercise of any
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other
right, power or remedy hereunder. No amendment, modification, termination,
or
waiver of any provision of this Guaranty nor consent to any departure by the
Guarantor therefrom, shall in any event be effective unless the same shall
be in
writing and signed by the Bank (and Guarantor as to any modification or
amendment of this Guaranty), and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given.
No
notice or demand on the Guarantor in any case shall entitle the Guarantor to
any
other or further notice or demand in similar or other
circumstances.
12. All
notices, requests, demands, statements, authorizations, approvals, directions
and other communications provided for herein shall be given or made in writing
and shall be deemed sufficiently given or served for all purposes as of the
date
(i) when hand delivered (provided that delivery shall be evidenced by a receipt
executed by or on behalf of the addressee), (ii) one (1) Business Day after
being sent by reputable overnight courier service (with delivery evidenced
by
written receipt), or (iii) with a simultaneous delivery by one of the shall
mean
in clause
(i)
or
(ii)
above,
by facsimile, when sent, with confirmation and a copy sent by first class mail,
in each case addressed to the intended recipient at the address specified below;
or, as to any party, at such other address as shall be designated by such party
in a notice to each other party hereto. Guarantor shall only be required to
send
notices, requests, demands, statements, authorizations, approvals, directions
and other communications to Bank on behalf of all of the Lenders.
If
to
Guarantor: c/o
The
Vail Corporation
000
Xxxxxxxxx Xxxx
Xxxx,
Xxxxxxxx 00000
Attention:
Xxxxxxx X. Xxxxx
Facsimile:
000-000-0000
With
a
copy to: Xxxxxxxxxx
Hyatt & Xxxxxx, P.C.
000
Xxxxxxxxxxx Xxxxxx
Xxxxxx-Xxxxxx
Xxxxx
Xxxxxx,
Xxxxxxxx 00000
Attention:
Xxxxxxxx X. Xxxxxx, Esq.
Facsimile:
303-223-1111
If
to
Bank: U.S.
Bank
National Association
DN-CO-BB5R
000
Xxxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx,
Xxxxxxxx 00000
Attention:
Xx. Xxxxxxx Xxxxxxxxxx
Facsimile:
000-000-0000
With
a
copy to: U.S.
Bank
National Association
Capital
Markets Group
00000
Xxxxxx Xxxxxxx
Xxxxx
000
Xxxxxx,
Xxxxx 00000
Attention:
Mr.
Huvishka Ali
Facsimile:
000-000-0000
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With
a
copy to: Xxxxx
& Xxxxxx L.L.P.
0000
Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx,
Xxxxxxxx 00000
Attention:
Xxxxxx X. XxXxxx, Esq.
Facsimile:
303-634-2020
Bank
or
Guarantor may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be
limited to particular notices or communications.
13. The
Guarantor hereby waives and agrees not to assert or take advantage of any duty
on the part of the Bank to disclose to the Guarantor any facts Bank may now
or
hereafter know about the Borrower, regardless of whether the Bank has reason
to
believe that any such facts materially increase the risk beyond that which
the
Guarantor intends to assume or has reason to believe that such facts are unknown
to the Guarantor or has a reasonable opportunity to communicate such facts
to
the Guarantor, it being understood and agreed that the Guarantor is fully
responsible for being and keeping informed of the financial condition of the
Borrower and of any and all circumstances bearing the risk of non-payment on
any
obligations hereby guaranteed.
14. The
Guarantor will file all claims against the Borrower in any bankruptcy or other
similar proceedings in which the filing of claims is required by law upon any
indebtedness of the Borrower to the Guarantor and will assign to the Bank all
rights of the Guarantor thereunder. In all such cases, whether in
administration, bankruptcy or otherwise, the person or persons authorized to
pay
such claim shall pay to the Bank the full amount thereof and to the full extent
necessary for that purpose, the Guarantor hereby assigns to the Bank all of
the
Guarantor’s rights to any such payments or distributions to which the Guarantor
would otherwise be entitled; provided that the Bank shall thereafter be
obligated to deliver to Guarantor any payments or distributions so received
by
the Bank in excess of the amounts due from Guarantor to the Bank
hereunder.
15. To
the
extent that the Guarantor receives any payments, distributions or any other
consideration with respect to any shares, debentures or partnership interests
of
the Borrower however described, the Guarantor shall immediately pay over and
deliver such payments, distributions or other consideration to the Bank to
the
extent that such payments, distributions or other consideration were made in
contravention of the Loan Documents.
16. By
execution hereof, the Guarantor certifies to the Bank that the Guarantor has
received a copy of the Construction Loan Agreement and all other Loan Documents
in execution form and represents that Guarantor is knowledgeable of the contents
thereof.
17. Wherever
possible each provision of this Guaranty shall be interpreted in such manner
as
to be effective and valid under applicable law, but if any provision of this
Guaranty shall be prohibited by or invalid under such law, such provision shall
be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this
Guaranty.
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18. The
Guarantor hereby represents and agrees that this is a continuing guaranty and
(a) shall remain in full force and effect until such time as a temporary
certificate of occupancy is issued for the Project (as defined in the
Construction Loan Agreement), so long as sufficient Loan funds remain available
under the Loan Budget to cover all of the punch list items remaining to be
completed and thereupon Bank shall provide written confirmation to Guarantor
of
termination hereof in such form as is reasonably requested by Guarantor, (b)
shall be governed by, and construed in accordance with, the laws of the State
of
Colorado, (c) shall be binding upon the Guarantor, its successors, and assigns,
and (d) shall inure to the benefit of and be enforceable by the Bank and its
respective successors, transferees and assigns. Without limiting the generality
of the foregoing clause (d), the Bank may assign or otherwise transfer the
Note
held by it to any other person or entity, and such subsequent holder of the
Note
shall thereupon become vested with all the powers and rights in respect thereof
granted to the Bank herein or otherwise.
19. The
Guarantor shall furnish to the Bank as and when required by the Construction
Loan Agreement the financial statements required to be furnished by the
Guarantor.
20. The
Guarantor shall indemnify and hold the Bank harmless from any loss, cost, claim
or expense (including, without limitation, attorneys’ fees) suffered by the Bank
as the result of a claim by third party arising from any failure by the Borrower
to return any xxxxxxx money deposits made by purchasers under the Purchase
Contracts (as defined in the Construction Loan Agreement) as required by the
terms of such Purchase Contracts. Guarantor’s liability under this Paragraph 20
is in addition to the sums referenced in Paragraph 1 above.
21. Both
the
Guarantor and the Bank hereby waives any right to jury trial of any claim,
cross-claim or counter-claim relating to or arising out of or in connection
with
this Guaranty.
22. FOR
PURPOSES OF ANY ACTIONS RELATING TO THIS GUARANTY, THE GUARANTOR AND THE BANK
CONSENT TO THE PERSONAL JURISDICTION OF THE STATE AND FEDERAL COURTS OF THE
STATE OF COLORADO.
23. This
Guaranty may be executed in any number of counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
[REMAINDER
OF PAGE INTENTIONALLY BLANK]
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SIGNED
AND DELIVERED effective as of the 1st day of December, 2005.
GUARANTOR:
THE
VAIL
CORPORATION, a Colorado corporation
By:
/s/
Xxxxxxx X. Xxxxx
Xxxxxxx
X. Xxxxx
Senior
Vice President & Chief Financial Officer
GUARANTOR:
VAIL
RESORTS, INC, a Delaware corporation
By:
/s/
Xxxxxxx X. Xxxxx
Xxxxxxx
X. Xxxxx
Senior
Vice President & Chief Financial Officer
BANK:
U.S.
BANK
NATIONAL ASSOCIATION, a national banking association
By:
/s/
Xxxxxxx X. Xxxxxxxxxx
Xxxxxxx
X. Xxxxxxxxxx
Vice
President
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