Exhibit
10.22(b)
COMPLETION GUARANTY
AGREEMENT
In order to induce 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"), to
make advances to GORE CREEK PLACE, LLC, a Colorado limited
liability company (hereinafter referred to as the
"Borrower"), in connection with a construction loan,
pursuant to and in accordance with a Construction Loan Agreement,
dated as of even date herewith, by and between the Borrower and the
Bank (hereinafter referred to as the "Construction Loan
Agreement") and evidenced by one or more promissory notes of
even date herewith in the maximum aggregate principal amount of
$30,000,000 (hereinafter referred to, collectively, as the
"Note"), the undersigned, THE VAIL CORPORATION, a Colorado
corporation (hereinafter referred to as the "Guarantor"),
hereby agrees as follows pursuant to this Completion Guaranty
Agreement (this "Guaranty"):
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 Borrower and written request to
Guarantor from Bank for performance hereunder, the Guarantor
agrees:
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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;
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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;
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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;
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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;
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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
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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 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.
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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.
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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.
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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
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,
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