Exhibit
10.33(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 ARRABELLE AT VAIL SQUARE, 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 not to
exceed $175,000,000 (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:
(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) including all extensions thereof, 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 and such
failure is not cured within thirty (30) days after written notice
from the Bank), 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 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