"Accessibility Laws" shall mean the Americans with Disabilities Act of 1990, as amended from time to time, and any similar state or local laws, rules or regulations relating to the accessibility of buildings or facilities.
"Administrative Agent" shall have the meaning assigned to such term in the preamble.
"Administrative Agent's Account" shall mean the account maintained by Administrative Agent with such bank as may from time to time be specified by Administrative Agent.
"Affiliate" shall mean, with respect to any Person, another Person that directly or indirectly controls, or is under common control with, or is controlled by, such Person and, if such Person is an individual, any member of the immediate family (including parents, spouse, children and siblings) of such individual and any trust whose principal beneficiary is such individual or one or more members of such immediate family and any Person who is controlled by any such member or trust.
"Agency Fee" shall mean any agency fees agreed to by Borrower and Administrative Agent.
"Agreement" shall mean this Construction Loan Agreement, as the same may be Modified from time to time.
"Anticipated Encumbrances" shall mean those encumbrances, easements and agreements first appearing after the date hereof that Borrower reasonably anticipates will be required to obtain final Government Approval of the Project or for the sale or operation of the Project. No encumbrance, easement or agreement materially adversely affecting the Project may be an "Anticipated Encumbrance." A preliminary description of Anticipated Encumbrances is included as Exhibit K.
"Anti--Terrorism Laws" shall mean any Applicable Laws relating to terrorism or money laundering, including, but not limited to, the Anti--Terrorism Order and the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107--56.
"Anti--Terrorism Order" shall mean Executive Order No. 13,224, 66 Fed. Reg. 49,079 (2001), issued by the President of the United States of America (Executive Order Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism).
"Applicable Law" shall mean any statute, law, regulation, ordinance, rule, judgment, rule of common law, order, decree, Government Approval, approval, concession, grant, franchise, license, agreement, directive, guideline, policy, requirement, or other governmental restriction or any similar form of decision of, or determination by, or any interpretation or administration of any of the foregoing by, any Governmental Authority, whether now or hereinafter in effect and, in each case, as amended (including any thereof pertaining to land use, zoning and building ordinances and codes).
"Applicable Interest Rate" shall mean, subject to Section 14.23 below, with respect to any Loan, (a) the LIBOR--Based Rate, (b) the Base Rate, or (c) during the existence of any Event of Default, the Default Rate.
"Applicable Lending Office" shall mean, for each Lender, the "Lending Office" of such Lender (or of an Affiliate of such Lender) designated by such Lender from time to time in writing to Administrative Agent.
"Applicable Margin" shall mean 145 basis points.
"Appraisal" shall mean the appraisal report of the Project from National Valuation Consultants, Inc. dated April 27, 2005, and any future appraisal of the Project ordered by Administrative Agent and prepared by an Appraiser, which Appraisal must comply in all respects with the standards for real estate appraisal established pursuant to Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, and otherwise in form and substance satisfactory to Administrative Agent.
"Appraised Land Value" shall mean the "as--is" appraised value of the Land only as determined by the Appraisal dated April 27, 2005, which amount is Thirty--Six Million, Seven Hundred Fifty Thousand and No/100 Dollars ($36,750,000.00) determined pursuant to the Appraisal by National Valuation Consultants, Inc.
"Appraised Value" shall mean the sum of the values of the Residential and Commercial Components as determined by an Appraisal. With respect to the Residential Component, the Appraised Value is the bulk discounted value to a single user "upon completion" of the Project, which amount, based upon the Appraisal dated April 27, 2005, is One Hundred Ninety--Nine Million and No/100 Dollars ($199,000,000.00), and with respect to the Commercial Component, the Appraised Value is the value "upon completion" of construction, which amount is Forty--Eight Million, Nine Hundred Thirty Thousand and No/100 Dollars ($48,930,000.00), as determined pursuant to the Appraisal dated April 27, 2005, by National Valuation Consultants, Inc.
"Appraiser" shall mean National Valuation Consultants, Inc., 950 S. Cherry Street, #800, Denver, CO 80246 or any other "state certified general appraiser" as such term is defined and construed under applicable regulations and guidelines issued pursuant to Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, which appraiser must have been licensed and certified by the applicable Governmental Authority having jurisdiction in the state where the Project is located, and which appraiser shall have been selected by Administrative Agent.
"Architecture Agreement" shall mean that certain agreement entitled Architectural Work Release Agreement between The Vail Corporation and 42|40 Architecture, Inc., dated May 1, 2003, as amended.
"Assignment and Assumption" shall mean an Assignment and Assumption, duly executed by the parties thereto and consented to by Borrower and Administrative Agent in accordance with Section 14.07(b).
"Assignment of Architectural Agreements" shall mean that certain Assignment of Architectural Agreements and Plans and Specifications of even date herewith, and the "Architect's Consent" dated effective January 31, 2006 attached thereto, executed by Borrower, and the Borrower's Architect, in favor of Administrative Agent, for the benefit of the Lenders, as the same may be Modified.
"Assignment of Borrower's Rights in Purchase Contracts" shall mean that certain Assignment of Borrower's Rights in Purchase Contracts of even date herewith, executed by the Borrower in favor of the Administrative Agent, for the benefit of the Lenders, as the same may be Modified.
"Assignment of Construction Agreements" shall mean that certain Assignment of Construction Agreements, and the "Contractor's Consent" attached thereto, of even date herewith executed by Borrower, and the General Contractor, in favor of Administrative Agent, for the benefit of the Lenders, as the same may be Modified.
"Authorized Officer" shall mean, (a) with respect to any Person, any authorized officer of such Person whose name appears on a certificate of incumbency delivered concurrently with the execution of this Agreement, as such certificate of incumbency may be amended from time to time to identify the names of the individuals then holding such offices, and (b) with respect to Borrower, its Managing Member.
"Available Contingency Amount" shall mean an amount equal to the applicable percentage of the Contingency Fund available to Borrower for reallocation as set forth in Section 7.03(b) during each phase of Project Completion as follows: (a) 0% -- 25% complete 25% shall be available, (b) 26 -- 50% complete 50% shall be available, (c) 51% -- 75% complete 75% shall be available, and (d) 76% -- 100% complete 100% shall be available. The percentage of Completion shall be as determined by Administrative Agent and the Construction Consultant in their reasonable discretion.
"Bankruptcy Action" shall mean, as to any Person, (a) an involuntary proceeding shall be commenced or an involuntary petition shall be filed, seeking (i) liquidation, reorganization or other relief in respect of such Person or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for such Person or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for a period of sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered; or (b) any Person shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (a) above, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official of such Person or for a substantial part of any of their assets, (iv) file an answer admitting the allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing.
"Bankruptcy Code" shall mean the Federal Bankruptcy Code of 1978, as amended from time to time.
"Base Building Work" shall mean all of that certain work to be performed by Borrower and/or its contractors constituting construction of the Improvements as more particularly described in the Plans and Specifications (except for (i) minor Punch List Items that do not adversely affect the use, occupancy or operation of the Project and (ii) tenant improvements to rentable space in the Commercial Component that is not yet occupied.)
"Base Rate" shall mean, for any day, a rate per annum equal to the greater of the (a) Prime Rate for such day, and (b) the Federal Funds Rate in effect on that day as announced by the Federal Reserve Bank of New York, plus 0.5%. Each change in any interest rate provided for herein based upon the Base Rate resulting from a change in the Base Rate shall take effect at the time of such change in the Base Rate.
"Base Rate Loans" shall mean the portions of the Outstanding Principal Amount that bear interest at the Base Rate.
"Borrower" shall have the meaning assigned to such term in the preamble.
"Borrower Party" shall mean each of Borrower, and Guarantor.
"Borrower's Account" shall mean an account maintained by Borrower with U.S. Bank, National Association as may from time to time be specified by or approved by Administrative Agent to accept the deposit of loan advances in accordance with this Agreement.
"Borrower's Architect" shall mean 42|40 Architecture, Inc., or any replacement thereof approved by Administrative Agent.
"Business Day" shall mean any day that is not a Saturday, Sunday or other day on which commercial banks in Colorado are authorized or required by law to remain closed; provided that, when used in connection with a borrowing, or Continuation of, or Conversion into, a payment or prepayment of principal of or interest on, or an Interest Period for, a LIBOR Rate Loan, or a notice by Borrower with respect to any such borrowing, Continuation, Conversion, payment, prepayment or Interest Period, the term "Business Day" shall also exclude any day on which banks are not open for dealings in dollar deposits in the London interbank market.
"Casualty" shall mean any loss of or damage to, any portion of the Project by fire or other casualty.
"CCR Agreement" shall mean any agreement regarding conditions, covenants and restrictions which may be entered into by Borrower which are related to all or any portion of the Project.
"Change of Control" shall mean any transaction that results in, directly or indirectly, (a) any Person other than Vail Resorts, Inc. or the Vail Corporation or a wholly--owned subsidiary thereof, whether directly or indirectly, owning 51% or more of the Equity Interests in Borrower, (b) any Person other than Vail Resorts, Inc. or The Vail Corporation or a wholly--owned subsidiary thereof having the responsibility for managing and administering the day--to--day business and affairs of Borrower, (c) in any other respects, any Person other than Vail Resorts, Inc. or The Vail Corporation directly or indirectly controlling Borrower, or (d) a "Change of Control Transaction" under the Principal Bank Credit Facility.
"Change Order" shall mean any Modification to (a) the Plans and Specifications, (b) the Project Budget, (c) the Construction Schedule, or (d) the General Contract, a Major Subcontract or any subcontract, which increases the cost of Construction Work above the budgeted cost therefor previously approved by Administrative Agent but specifically excluding any Purchaser Upgrades.
"Closing Date" shall mean the date of this Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time to time.
"Collateral" shall mean, collectively, (a) all construction materials and equipment and all furniture, furnishings, fixtures, machinery, equipment, inventory and any other item of personal property in which Borrower now or hereafter owns or acquires any interest or right, including any of the foregoing that are leased, which are used or useful in the construction, operation, use, sale or occupancy of the Project (or any portion thereof); (b) all of Borrower's accounts receivable in connection with the Project (or any portion thereof); (c) all of Borrower's documents, instruments, contract rights (including any rights under any development agreement) and general intangibles relating to the present or future construction, use, sale, operation or occupancy of the Project (or any portion thereof), including the right to use the name "ArraBelle at Vail Square" or any such name given the Project, but excluding any rights to the Vail Resorts name and any tradenames or trademarks associated therewith; (d) all insurance proceeds from any policies of insurance covering any of the aforesaid; and (e) such other collateral as may be described in the Security Documents.
"Commercial Component" shall mean, collectively, the Hotel Component, Parking Club Component, Resort Services Component and the Retail Component.
"Commitment" shall mean, as to each Lender, the obligation of such Lender to make Loans in an aggregate amount up to but not exceeding the amount set opposite the name of such Lender on Exhibit C attached hereto under the caption "Commitment" or, in the case of a Person that becomes a Lender pursuant to an assignment permitted under Section 14.07(b), as specified in the respective Assignment and Assumption (consented to by Borrower and Administrative Agent in accordance with Section 14.07(b)) pursuant to which such assignment is effected, as such amount may be modified by any Assignment and Assumption or as determined by Administrative Agent.
"Completion" as applicable to the Construction Work, Project or Improvements shall mean the satisfaction of all of the following conditions: (a) the Construction Work (except for (i) minor Punch List Items that do not adversely affect the use, occupancy or operation thereof and (ii) tenant improvements to rentable space in the Commercial Component that is not yet occupied) or Base Building Work, as appropriate, shall be completed substantially in accordance with the Plans and Specifications; (b) the Construction Consultant or Design Professional, at Administrative Agent's discretion, shall have issued to Administrative Agent a report confirming the satisfaction of the condition set forth in clause (a) above; (c) valid certificates of occupancy for the entire Project (except the incomplete portions thereof referred to in clause (a) above) shall have been issued by the appropriate Governmental Authority (which certificates of occupancy may be temporary certificates of occupancy), and (d) the statutory lien period or periods within which contractors, subcontractors, mechanics, materialmen and others providing labor and/or materials must file mechanic's and other liens shall have expired or appropriate waivers of such liens or bonds sufficient to cover the amount of such liens reasonably acceptable to Administrative Agent shall have been obtained from such parties or the Borrower, as appropriate.
"Completion Date" shall mean, subject to Section 14.26, (a) with respect to the Residential Component, the first to occur of (i) the date that is fifteen (15) days in advance of the date required for delivery of a Unit pursuant to the terms of a Qualified Purchase Contract, or (ii) the date that is twenty--six (26) months after the Closing Date, and (b) with respect to the Project (other than the Residential Component), the Scheduled Maturity Date.
"Completion Guaranty" shall mean that certain Guaranty of Completion executed by Guarantor in favor of Administrative Agent substantially concurrently herewith, as the same may be Modified from time to time.
"Condemnation" shall mean a taking or voluntary conveyance during the term hereof of all or part of the Project, or any interest therein or right accruing thereto or use thereof, as the result of, or in settlement of, any condemnation or other eminent domain proceeding (including but not limited to any transfer made in lieu of or in anticipation of the exercise of such taking) by any Governmental Authority affecting the Project or any portion thereof whether or not the same shall have actually been commenced.
"Condemnation Awards" shall mean all compensation, awards, damages, rights of action and proceeds awarded to Borrower by reason of a Condemnation.
"Consents" shall mean the written consents of the Borrower's Architect and the General Contractor attached to the Assignment of Architecture Agreement and the Assignment of Construction Agreements, respectively.
"Construction Consultant" shall mean RE Tech + and/or such other consultant as Administrative Agent may engage on behalf of the Lenders in connection herewith.
"Construction Schedule" shall mean the schedule prepared and certified by Borrower and verified by the Construction Consultant establishing a timetable for commencement and Completion of the Construction Work, showing, on a monthly basis, the anticipated progress of the Construction Work and showing that all of the Construction Work will be completed on or before the Completion Date, as the same may from time to time hereafter be Modified in accordance with the terms of this Agreement.
"Construction Work" shall mean all work and materials (including all labor, equipment and fixtures with respect thereto) necessary to construct the Improvements, all of which shall be performed and completed in accordance with and as contemplated by the Plans and Specifications and all Applicable Laws.
"Consumer Price Index" shall mean the consumer price index for the Denver area for all Urban Consumers--All Items, published monthly by the Bureau of Labor Statistics of the United States Department of Labor.
"Continue", "Continuation" and "Continued" shall refer to the continuation pursuant to Section 2.07 of (a) a LIBOR Rate Loan from one Interest Period to the next Interest Period or (b) a Base Rate Loan at the Base Rate.
"Controlled Account" shall mean one or more deposit accounts established by Administrative Agent (for the benefit of the Lenders) at a depository bank or financial institution that is acceptable to Administrative Agent, and which is established and maintained in accordance with Section 14.24 herewith.
"Convert", "Conversion" and "Converted" shall refer to a conversion pursuant to Section 2.07 of one Type of Loans into another Type of Loans.
"Cost and Plan Review" shall mean a report of the Construction Consultant in form and substance reasonably satisfactory to Administrative Agent, as to the Project Budget, the Plans and Specifications, the Pro Forma Draw Schedule, the Construction Schedule, equipment selection, expected performance, operating costs and as to such other matters as Administrative Agent may reasonably request, including, without limitation, a detailed plan and cost review.
"Date Down Endorsement" shall mean any date down endorsements to the Title Policy or other evidence of date down of title acceptable to Administrative Agent in its reasonable discretion covering disbursements of loan proceeds made or to be made subsequent to the date of the Title Insurance Policy.
"Default" shall mean an event that with notice, lapse of time, or both would become an Event of Default.
"Default Rate" shall mean, as applicable, a rate per annum equal to the greater of (a) the LIBOR--Based Rate plus three and one--half percent (3.5%) or (b) the Base Rate as in effect from time to time plus three and one--half percent (3.5%); provided, however, that in no event shall the Default Rate exceed the Maximum Rate.
"Depository Bank" shall mean any bank or financial institution in which a Controlled Account is established in accordance with Section 14.24 hereof.
"Design Professional" shall mean, collectively, Borrower's Architect, structural engineer, mechanical engineer and other design professionals relating to the Construction Work, as approved by Administrative Agent, and any reference in this Agreement to a certification or other document to be executed by the applicable Design Professional shall mean one or more of such Design Professionals designated by Administrative Agent as the Design Professionals to execute such certification or document, depending on the areas of expertise covered by such certification or document.
"Development Agreement" shall mean that certain Core Site Development Agreement dated effective November 8, 2004, by and among the Town of Vail, Vail Reinvestment Authority, and The Vail Corporation, d/b/a Vail Associates, Inc.
"Development Agreement Guaranty" shall mean that certain Development Agreement Guaranty executed by Guarantor in favor of Administrative Agent substantially concurrently herewith, as the same may be Modified from time to time.
"Discretionary Approvals" shall mean all discretionary governmental approvals, authorizations, permits and entitlements which have been or will be issued with respect to the Improvements, including, without limitation, all applicable building, land use and zoning approvals, annexation agreements, plot plan approvals, subdivision approvals (including the approval and recordation of any required subdivision map), environmental approvals (including a negative declaration or an environmental impact report if required under applicable law), and sewer and water permits.
"Distribution" shall mean a payment of cash, assets, or proceeds of any kind by a Person (the "Distributor") to any other Person (a "Distributee") that owns a direct or indirect Equity Interest in such Distributor, including, without limitation, repayment of any loans made by such Distributee to such Distributor, or a return of any capital contribution made by such Distributee, distributions upon termination, liquidation or dissolution of such Distributor.
"Dollars" and "$" shall mean lawful money of the United States of America.
"Earnest Money Deposits" shall mean any cash deposits, paid or given as security for obligations of purchasers under any Qualified Purchase Contract and referred to therein as a "Construction Deposit," "Reservation Deposit" or "Earnest Money." Earnest Money Deposits may be used in connection with construction of Improvements subject to a Qualified Purchase Contract.
"Eligible Assignee" shall mean any of the following, in each case acceptable to Administrative Agent and Borrower: (a) a commercial bank organized under the Laws of the United States, or any State thereof, and having (i) total assets in excess of $10 billion and (ii) the senior debt obligations of which for such bank's parents senior unsecured debt obligations are rated not less than (1) Baa--2 by Moody's Investors Service, Inc., or (2) BBB by S&P.
"Environmental Claim" shall mean, with respect to any Person, any written request for information by a Governmental Authority, or any written notice, notification, claim, administrative, regulatory or judicial action, suit, judgment, demand or other written communication by any Person or Governmental Authority alleging or asserting liability with respect to Borrower or the Project, whether for damages, contribution, indemnification, cost recovery, compensation, injunctive relief, investigatory, response, Remediation, damages to natural resources, personal injuries, fines or penalties arising out of, based on or resulting from (a) the presence, use or Release into the environment of any Hazardous Substance originating at or from, or otherwise affecting, the Project, (b) any fact, circumstance, condition or occurrence forming the basis of any violation, or alleged violation, of any Environmental Law by Borrower or otherwise affecting the health, safety or environmental condition of the Project or (c) any alleged injury or threat of injury to health, safety or the environment by Borrower or otherwise affecting the Project.
"Environmental Indemnity" shall mean that certain Environmental Indemnity Agreement by executed by Borrower and Guarantor substantially concurrently herewith, in favor of Administrative Agent, as the same may be Modified from time to time.
"Environmental Laws" shall mean any and all present and future federal, state and local laws, rules or regulations, and any orders or decrees, in each case as now or hereafter in effect, relating to the regulation or protection of health, safety or the environment or the Release or threatened Release of Hazardous Substances into the indoor or outdoor environment, including ambient air, soil, surface water, ground water, wetlands, land or subsurface strata, or otherwise relating to the use of Hazardous Substances.
"Environmental Losses" shall mean any losses, damages, costs, fees, expenses, claims, suits, judgments, awards, liabilities (including but not limited to strict liabilities), obligations, debts, diminutions in value, fines, penalties, charges, costs of Remediation (whether or not performed voluntarily), amounts paid in settlement, foreseeable and unforeseeable consequential damages, litigation costs, reasonable attorneys' fees and expenses, engineers' fees, environmental consultants' fees, and investigation costs (including, but not limited to, costs for sampling, testing and analysis of soil, water, air, building materials, and other materials and substances whether solid, liquid or gas), of whatever kind or nature, and whether or not incurred in connection with any judicial or administrative proceedings, actions, claims, suits, judgments or awards relating to Hazardous Substances, Environmental Claims, Environmental Liens and violation of Environmental Laws.
"Environmental Reports" shall mean, collectively, (a) the Environmental Site Assessment (Phase I) prepared in May, 2005, by Stewart Environmental Consultants, Inc., (b) the Shaw Discharge Report, (c) Report of Air Monitoring and Visual Inspections prepared July 15, 2005, by Stewart Environmental Consultants, Inc., and (d) any environmental surveys and assessments Administrative Agent in its reasonable discretion may require.
"Equity Interests" shall mean shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any such equity interest.
"Equity Rights" shall mean, with respect to any Person, any subscriptions, options, warrants, commitments, preemptive rights or agreements of any kind (including any 'shareholders' or voting trust agreements) for the issuance, sale, registration or voting of, or securities convertible into, any additional shares of capital stock of any class, or partnership, membership or other ownership interests of any type in, such Person.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not incorporated) that, together with any Borrower Party, is treated as a single employer under Section 414(b) or (c) of the Code, or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30--day notice period is waived); (b) the existence with respect to any Plan of an "accumulated funding deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by a Borrower Party or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by any Borrower Party or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by a Borrower Party or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by a Borrower Party or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from a Borrower Party or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.
"Excluded Taxes" shall mean, with respect to Administrative Agent, any Lender, or any other recipient of any payment to be made by or on account of any obligation of Borrower hereunder, (a) income or franchise taxes imposed on (or measured by) its net income by the United States of America, or by the jurisdiction under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its Applicable Lending Office is located, or (b) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which Borrower is located.
"Facility Amount" shall mean One Hundred Seventy--Five Million and No/100 Dollars ($175,000,000.00) as such amount may be reduced pursuant to Sections 3.04 and 3.05 hereof.
"Federal Funds Rate" means, for any day, the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.
"Foreign Lender" shall mean any Lender that is organized under the laws of a jurisdiction other than that in which Borrower is located. For purposes of this definition, the United States of America, each state thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.
"Funding Date" shall mean any Business Day on which proceeds of the Commitment are advanced to or for the benefit of Borrower in accordance with and subject to the terms and conditions of this Agreement.
"GAAP" shall mean generally accepted accounting principles in the United States applied on a consistent basis, in accordance with Section 1.02.
"General Assignment" shall mean that certain Assignment of Contracts, Licenses, Approvals and Rights executed by Borrower for the benefit of Administrative Agent substantially concurrently herewith, as the same may be Modified from time to time.
"General Contract" shall mean that certain Construction Contract dated as of April 15, 2005, as amended by Change Orders, including without limitation, Change Order 13 dated January 13, 2006, between Borrower and the General Contractor, as the same may be Modified from time to time in accordance with the terms of this Agreement.
"General Contractor" shall mean Shaw Construction.
"General Contractor Fee" shall mean the general contractor fees agreed to by Borrower and General Contractor as provided in the General Contract.
"Government Approval" shall mean any action, authorization, consent, approval, license, lease, ruling, permit, tariff, rate, certification, exemption, filing or registration by or with any Governmental Authority, including all licenses, permits, allocations, authorizations, approvals and certificates obtained by or in the name of, or assigned to, Borrower and used in connection with the ownership, construction, operation, use or occupancy of the Project, including building permits, zoning and planning approvals, business licenses, licenses to conduct business, certificates of occupancy and all such other permits, licenses and rights.
"Governmental Authority" shall mean any governmental department, commission, board, bureau, agency, regulatory authority, instrumentality, judicial or administrative body, federal, state, local, or foreign having jurisdiction over the matter or matters in question.
"Guarantor Documents" shall mean the Completion Guaranty and the Development Agreement Guaranty.
"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."
"Hard Costs" shall mean the aggregate costs of all labor, materials, equipment and fixtures necessary for completion of construction of the Improvements, as more particularly set forth in the Project Budget.
"Hazardous Substance" shall mean, collectively, (a) any petroleum or petroleum products, flammable materials, explosives, radioactive materials, asbestos, urea formaldehyde foam insulation, and transformers or other equipment that contain polychlorinated biphenyls ("PCB"), (b) any chemicals or other materials or substances that are now or hereafter become defined as or included in the definition of "hazardous substances", "hazardous wastes", "hazardous materials", "extremely hazardous wastes", "restricted hazardous wastes", "toxic substances", "toxic pollutants", "contaminants", "pollutants" or words of similar import under any Environmental Law and (c) any other chemical or other material or substance, exposure to which is now or hereafter prohibited, limited or regulated under any Environmental Law.
"Hotel Component" shall mean the 36--room hotel unit comprising a portion of the Improvements, which hotel component shall include an approximately 11,125 square foot spa, and approximately 11,673 square feet of meeting space and a restaurant.
"Improvements" shall mean a mixed--use development comprised of the Residential Component and Commercial Component, and all of the other improvements to be constructed on the Land, as more particularly described in the Plans and Specifications, and including the "On--Site Streetscape," "Off--Site Streetscape" and "Lionshead Place" improvements.
"Indebtedness" shall mean, for any Person: (a) obligations created, issued or incurred by such Person for borrowed money (whether by loan, the issuance and sale of debt securities or the sale of Property to another Person subject to an understanding or agreement, contingent or otherwise, to repurchase such Property from such Person), other than trade accounts payable (other than for borrowed money) arising, and accrued expenses incurred, in the ordinary course of business so long as such trade accounts payable are payable within ninety (90) days of the date the respective goods are delivered or the respective services are rendered; (b) obligations of such Person to pay the deferred purchase or acquisition price of Property or services; (c) Indebtedness of others secured by a Lien on the Property of such Person, whether or not the respective indebtedness so secured has been assumed by such Person; (d) obligations of such Person in respect of letters of credit or similar instruments issued or accepted by banks and other financial institutions for account of such Person; and (e) Indebtedness of others Guaranteed by such Person. Indebtedness shall not include obligations to return Earnest Money Deposits to Purchasers of Units pursuant to a Qualified Purchase Contract.
"Indemnified Parties" shall mean Administrative Agent, the Affiliates of Administrative Agent, each Lender, and each of the foregoing parties' respective directors, officers, employees, attorneys, agents, successors and assigns.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes.
"Initial Equity Contribution" shall mean an equity contribution by Borrower in a minimum amount equal to Seventy Million Six Hundred One Thousand and No/100 Dollars ($70,601,000.00) which shall be comprised of the Land at its Appraised Land Value of Thirty--Six Million Seven Hundred Fifty Thousand and No/100 Dollars ($36,750,000.00) and all Earnest Money Deposits in an amount not less than Thirty--Three Million Eight Hundred Fifty Thousand Five Hundred and No/100 Dollars ($33,850,500.00) and cash contributions from Borrower in an amount not less than Nineteen Million Eight Hundred Eighty--six Thousand Eight Hundred Seventy --two and No/100 Dollars ($19,886,872.00).
"Insurance Proceeds" shall mean all insurance proceeds, damages, claims and rights of action and the right thereto under any insurance policies relating to the Project.
"Interest Period" shall mean each period commencing on the date such LIBOR Rate Loan is made or Converted from a Base Rate Loan or (in the event of a Continuation) the last day of the immediately preceding Interest Period for such Loan and ending on the numerically corresponding day in the first, second, third or sixth calendar month thereafter, as Borrower may select (subject to the terms and conditions hereof).
"Knowledge" shall mean, with respect to a Person, (a) the actual knowledge of such Person (and if such Person is an entity, the actual knowledge of the individuals with responsibility for the management, control, and day to day operations of such entity), including, without limitation, with respect to Borrower and its Affiliates, in connection with the acquisition, development and construction of the Improvements, and (b) the knowledge such Person would have after having undertaken and completed such commercially reasonable diligence and investigation that a similarly--situated commercial property owner or developer would have undertaken with respect to the matter about which the applicable representation is made.
"Land" shall have the meaning assigned to such term in the Recitals.
"Lender" shall have the meaning assigned to such term in the preamble.
"LIBOR" shall mean, as of the applicable date and time for determination provided herein, a per annum rate of interest (rounded upward, if necessary, to the nearest 1/100th of 1%) equal to the rate which appears on the Telerate Page 3750 (or any successor or substitute thereto selected by Administrative Agent in its sole discretion) as of 11:00 a.m., London time, two (2) Banking Days prior to the first day of the applicable Interest Period selected by Borrower, for United States dollar deposits having a term coinciding with the Interest Period selected by Borrower, adjusted for any reserve requirements and any subsequent costs arising from a change in government regulation; provided that if such rate does not appear on such page as of the date of determination, or if such page shall cease to be publicly available at such time, or if the information contained on such page, in the sole judgment of Administrative Agent shall cease accurately to reflect the rate offered by leading banks in the London interbank market, LIBOR shall be based on the rate that appears as of 11:00 a.m. London time on such date of determination on the LIBOR Page of Reuters Screen for Dollar deposits having a term comparable to such Interest Period and in an amount comparable to the amount of the applicable LIBOR Rate Loan; and provided further if both of such pages shall cease to be publicly available as of the time of determination, or if the information contained on such page, in the sole judgment of Administrative Agent shall cease accurately to reflect the rate offered by leading banks in the London interbank market, LIBOR shall be based on the rate reported by any publicly available source of similar market data selected by Administrative Agent that, in its sole judgment, accurately reflects such rate offered by leading banks in the London interbank market.
"LIBOR--Based Rate" shall mean the sum of (a) LIBOR, plus (b) the Applicable Margin.
"LIBOR Rate Loans" shall mean the portions of the Outstanding Principal Amount that bear interest at LIBOR--Based Rate.
"Lien" shall mean, with respect to any Property (including the Project), any mortgage, deed of trust, lien, pledge, charge, security interest or encumbrance of any kind in respect of such Property. For purposes of this Agreement and the other Loan Documents, a Person shall be deemed to own subject to a Lien any Property that it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement (other than an operating lease) relating to such Property.
"Lien Law" shall mean the mechanics' lien laws of the State of Colorado, as amended from time to time.
"Limiting Regulation" shall mean any law or regulation of any jurisdiction, or any interpretation, directive or request under any such law or regulation (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) by any court or Governmental Authority charged with the interpretation or administration thereof, or any internal bank policy resulting therefrom (applicable to loans made in the United States of America) which would or could in any way require a Lender to have the approval right contained in Section 10.03(d).
"Loan Documents" shall mean, collectively, this Agreement, the Notes, the Security Documents, the Guarantor Documents, the Representation Agreement, and each other agreement, instrument or document required to be executed and delivered in connection with, or evidencing, securing, or supporting, the Loans, together with any Modifications thereof.
"Loan Par Value" shall mean the portion of the Facility Amount allocated to each Unit as set forth on Exhibit F.
"Loan to Cost Ratio" shall mean the ratio, expressed as a percentage that (a) the Facility Amount bears to (b) the Project Budget.
"Loan to Value Ratio" shall mean the ratio, expressed as a percentage, that (a) the Facility Amount bears to (b) the Appraised Value as determined on the basis of the most recent Appraisal obtained by Administrative Agent, any such Appraisal to be conclusive absent demonstrable error.
"Major Subcontract" shall mean any subcontract, trade contract, material agreement or supply contract relating to the construction of the Improvements or a component thereof in the amount of One Million and No/100 Dollars ($1,000,000.00) or more.
"Major Subcontractor" shall mean any subcontractor or trade contractor or supplier, other than a Design Professional, who is a party to a Major Subcontract.
"Managing Member" shall mean Vail Resorts Development Company, a Colorado corporation, as managing member under the Organizational Documents of Borrower, and its successors thereunder as managing member of Borrower as permitted under the Loan Documents.
"Material Adverse Effect" shall mean (a) as to Borrower, the likely inability or reasonably anticipated inability of Borrower to pay and perform its respective obligations under and in full compliance with the terms of the Loan Documents (including, without limitation, Completion of the Base Building Work on or before the Completion Date) as a result of (i) a material and adverse effect on the condition (financial or otherwise), assets or business of Borrower (other than a change solely as a result of a change in the financial markets), (ii) a material and adverse effect on the value of the Project (other than a change solely as a result of a change in the financial markets), or (iii) a material and adverse effect on the status of the liens in favor of Administrative Agent on the Collateral; (b) as to Guarantor Vail Resorts, Inc., the acceleration of that certain Indenture dated as of January 29, 2004, by Vail Resorts, Inc. as Issuer and The Bank of New York, as Trustee, as a result of any material default thereunder after giving effect to all applicable notice, cure and grace periods and all consents, waivers or modifications entered into or permitted therein, and (c) as to Guarantor Vail Corporation, the acceleration of the Vail Corporation's Principal Bank Credit Facility as the result of any material default thereunder after giving effect to all applicable notice, cure and grace periods and all consents, waivers or modifications which have been entered into by the requisite lenders under the terms of the such facility. In the event that the Principal Bank Credit Facility or its successor is terminated without replacement or that such agreement or its successor is Modified on terms and conditions that are not substantially similar, "Principal Bank Credit Facility" as to The Vail Corporation shall mean The Vail Corporation's principal bank revolving credit agreement as in effect at the time of determination, and in the event that no such bank revolving credit agreement exists, "Principal Bank Credit Facility" shall mean those covenants agreed upon by Borrower and Administrative Agent to be incorporated herein, which covenants shall be substantially similar to those contained in the Principal Bank Credit Facility at the time of its termination in which case "Material Adverse Effect" shall mean a material default of any such covenants.
"Material Agreement" shall mean, individually and collectively, the General Contract, Architecture Agreement, each Qualified Purchase Contract, any CCR Agreement, and Borrower's Organizational Documents.
"Maturity Date" shall mean the earliest to occur of (a) the Scheduled Maturity Date in the event Borrower does not properly exercise the Extension Option pursuant to Article IV below; (b) the Extended Maturity Date in the event Borrower has properly exercised the Extension Option pursuant to Article IV; (c) the occurrence of any Transfer prohibited by the Loan Documents; and (d) the date on which the Outstanding Principal Balance is accelerated pursuant to the terms of this Agreement.
"Member(s)" shall mean, collectively, the Managing Member and such other Person or Persons as may be a member of Borrower from time to time in accordance with the terms of the Loan Documents.
"Metro District" shall mean the Vail Square Metropolitan Districts 1, 2 and 3.
"Metro District Bonds" shall mean Metro District bond proceeds in the amount of approximately Eight Million Five Hundred Thousand and No/100 Dollars ($8,500,000.00), (or such greater amount as may be approved by Administrative Agent) that may be available to Borrower from a planned bond offering and which may be used to fund certain Project Costs related to construction of infrastructure improvements.
"Minimum Loan Coverage Ratio" shall mean the ratio that (a) Net Sales Proceeds derived from sales pursuant to Qualified Purchase Contracts bears to (b) the Facility Amount, which ratio shall not be less than 1:1.
"Ministerial Matter" shall mean matters of an administrative or ministerial nature with respect to the Borrower, the Improvements, or the Loan, including, without limitation, matters involving: (a) construction budgets, schedules, plans and specifications, and any changes made (or requested by Borrower to be made) with respect thereto, (b) construction contracts, architecture contracts, bonds, and other documents related to the Project, and any changes made (or requested by Borrower to be made) thereto, (c) forms of documents and Collateral required to be executed and/or delivered by Borrower or any other Person in connection with the Loan, including documents relating to Anticipated Encumbrances, (d) approval of Anticipated Encumbrances and Subordination of the Security Documents thereto, and (e) the satisfaction of conditions precedent to disbursements of the Loan to Borrower; provided, however, that Ministerial Matters shall not be deemed to include any of the matters described in Section 13.09(b) below.
"Modifications" shall mean any amendments, supplements, modifications, renewals, replacements, consolidations, severances, substitutions and extensions thereof from time to time; "Modify", "Modified", or related words shall have meanings correlative thereto.
"Multiemployer Plan" shall mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
"Net Sale Proceeds" shall mean, 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, less Earnest 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 seven percent (7%) of the actual Unit sales price, and, with respect to the calculation of the Minimum Loan Coverage Ratio, the projected aggregate amount of the actual sales prices less commissions and closing costs and Earnest Money Deposits described above, for Units subject to Qualified Purchase Contracts.
"Non--Discretionary Approvals" shall mean all non--discretionary governmental approvals, authorizations, permits and entitlements where issuing of the same is based solely on a determination of compliance or non--compliance with applicable laws and previously issued Discretionary Approvals, including, without limitation, all grading, shoring, excavating, and building permits.
"Notes" shall mean those certain Promissory Notes, each of even date herewith, executed and delivered by Borrower to the order of the Lender named therein, in the aggregate original principal amount of the Facility Amount, to evidence the Loans, as the same may be Modified from time to time, and including any Replacement Notes.
"Obligations" shall mean all obligations, liabilities and indebtedness of every nature of Borrower, from time to time owing to Administrative Agent or any Lender under or in connection with this Agreement, the Notes or any other Loan Document to which it is a party, including principal, interest, fees (including fees of counsel), and expenses whether now or hereafter existing under the Loan Documents.
"Official Records" shall mean the official records of the office of the Clerk and Recorder of Eagle County, State of Colorado.
"Organizational Documents" shall mean (a) for any corporation, the certificate or articles of incorporation, the bylaws, any certificate of determination or instrument relating to the rights of preferred shareholders of such corporation, any shareholder rights agreement, and any amendments thereto, (b) for any limited liability company, the articles of organization and any certificate relating thereto and the limited liability company (or operating) agreement of such limited liability company, and any amendments thereto, and (c) for any partnership (general or limited), the certificate of limited partnership or other certificate pertaining to such partnership and the partnership agreement of such partnership (which must be a written agreement), and any amendments thereto.
"Other Charges" shall mean all maintenance charges, impositions other than Real Estate Taxes, and any other charges, including license fees for the use of areas adjoining the Project, now or hereafter levied or assessed or imposed against the Project or any part thereof
"Other Taxes" shall mean any and all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made under any Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, any Loan Document.
"Outstanding Principal Amount" shall mean the aggregate outstanding principal amount of the Loans at any point in time.
"Parking Club" shall mean the private membership club comprised of approximately 300 members who have paid a Parking Club Membership fee for the privilege of access to and use of the Parking Club Component.
"Parking Club Component" shall mean the approximately 100 underground parking spaces comprising a portion of the Improvements to be available for use to third party purchasers of memberships in the Parking Club.
"Parking Club Memberships" shall mean the approximately 300 memberships in the Parking Club sold by Borrower pursuant to membership agreements.
"Parking Club Membership Fee" the initial fee of not less than Fifty Thousand Dollars ($50,000.00) paid to Borrower for each of the Parking Club Memberships.
"Payment Date" shall mean the first Business Day of each calendar month. The first Payment Date shall be the first Business Day of the first calendar month following the making of the first Loan pursuant to this Agreement.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.
"Permitted Liens" shall mean (a) any Lien created by the Loan Documents, (b) those matters listed as exception on Schedule B to the Title Policy, (c) Liens for Real Estate Taxes and Other Charges imposed by any Governmental Authority not yet due or delinquent, (d) the Anticipated Encumbrances approved by Administrative Agent, and (e) any Lien created by the recordation of documents required for the establishment of a homeowners association, and such other title and survey exceptions as Administrative Agent may approve.
"Person" shall mean any individual, corporation, company, voluntary association, partnership, limited liability company, joint venture, trust, unincorporated organization or government (or any agency, instrumentality or political subdivision thereof).
"Plan" shall mean any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which any of their ERISA Affiliates is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Plans and Specifications" shall mean the plans and specifications for the construction of the Improvements delivered by Borrower to Administrative Agent, prepared by Borrower's Design Professionals and approved by Administrative Agent, the Construction Consultant and, to the extent then required, by any applicable Governmental Authority and such other parties whose approval or consent may be required under any law, regulation, prior agreement, this Agreement and all Modifications thereof made by Change Orders permitted pursuant to the terms of this Agreement. A list of the presently existing Plans and Specifications is attached hereto as Exhibit E.
"Prime Rate" shall mean the rate of interest most--recently announced by U.S. Bank at its principal office in Minneapolis, Minnesota, from time to time as its prime rate, notwithstanding the fact that Administrative Agent and the Lenders may lend funds to their customers at rates that are at, above or below said prime rate, it being understood that such prime commercial rate is a reference rate and does not necessarily represent the lowest or best rate being charged by U.S. Bank to any customer. Changes in the Prime Rate shall become effective on the same day as the date of any change in said prime rate.
"Principal Bank Credit Facility" means that certain Fourth Amended and Restated Credit Agreement, dated as of January 28, 2005, among The Vail Corporation (d/b/a Vail Associates, Inc.), Bank of America, N.A., as Administrative Agent and the other financial institutions identified therein, as amended, modified, extended or replaced from time to time on substantially similar terms and conditions
"Principal Office" shall mean the office of Administrative Agent, located on the date hereof at 918 -- 17th Street, 5th Floor, Denver, Colorado 80202, or such other office as Administrative Agent shall designate upon ten (10) days' prior notice to Borrower and the Lenders.
"Project" shall mean, collectively, (a) the Land, together with any air rights and other rights, privileges, easements, hereditaments and appurtenances thereunto relating or appertaining to the Land, (b) the Improvements, together with all fixtures and equipment required for the operation of the Improvements, (c) all building materials and personal property related to the foregoing, and (d) all other items described as "Property" in the Security Instrument.
"Project Budget" shall mean the budget attached as Exhibit B hereto as the same may be Modified from time to time in accordance with the provisions of this Agreement.
"Project Costs" shall mean, collectively, the Appraised Land Value, Hard Costs and Soft Costs.
"Project Documents" shall mean, collectively, (a) the General Contract, (b) the Architecture Agreement, (c) the Plans and Specifications, (d) all Major Subcontracts, (e) the Government Approvals, (f) the Construction Schedule, (g) Consents, (h) the Design Professionals' Certificates, and (i) the Development Agreement, as the same may be Modified from time to time as permitted under the Loan Documents.
"Property" shall mean any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible.
"Proportionate Share" shall mean, with respect to each Lender, the percentage set forth opposite such Lender's name on Exhibit C attached hereto under the caption "Proportionate Share," as such percentage may change from time to time as permitted herein.
"Protective Advance" shall mean all necessary costs and expenses (including attorneys' fees and disbursements) incurred by Administrative Agent (a) in order to remedy an Event of Default under the Loan Documents, which Event of Default, by its nature, may impair any portion of the Collateral for the Loans or the value of such Collateral, interfere with the enforceability or enforcement of the Loan Documents, or otherwise materially impair the payment of the Loan (including, without limitation, the costs of unpaid insurance premiums, foreclosure costs, costs of collection, costs incurred in bankruptcy proceedings and other costs incurred in enforcing any of the Loan Documents); or (b) in respect of the operation of the Project following a foreclosure under the Security Instrument.
"Punch List Items" shall mean minor construction items to be completed or constructed with respect to the Base Building Work or Construction Work which do not materially interfere either with the use of the Improvements or the acceptance and occupancy of the space to a buyer.
"Purchaser Upgrade" shall mean a Modification or upgrade to the Plans and Specifications for a Unit requested by the purchaser of such Unit and required to be paid for by such purchaser.
"Purchaser Upgrade Account" shall mean one or more deposit accounts established by Borrower with Administrative Agent, and which is established and into which deposits for Purchaser Upgrades shall be held for disbursement in accordance with Section 2.02(c).
"Qualified Purchase Contract" shall mean with respect to Units in the Residential Component (a) each of the contracts listed on Exhibit D, provided no defaults exist thereunder and the same is in full force and effect for the purchase of a Unit or (b) such other or substitute contract for the purchase of a Unit which is in full force and effect and meets the following criteria: (i) is in substantially the form previously submitted to and accepted by Administrative Agent; (ii) is with an unaffiliated third--party purchaser purchasing no more than two (2) Units (except as described herein); (iii) pursuant to which the purchaser of such Unit, in accordance with the provisions of such contract, has placed into escrow or delivered to Borrower or Guarantor a non--refundable cash Earnest Money Deposit equal to at least 15% of the purchase price; (iv) contains no major contingencies (other than construction of the Improvements and customary inspection, and title); and (v) the Administrative Agent has received a fully executed copy of the contract. The provisions of (ii) above notwithstanding, up to five (5) Units may be sold to Purchasers affiliated with Borrower and up to 10 Units may be purchased by Exclusive Resorts, Inc. pursuant to agreements reasonably acceptable to Administrative Agent and still be classified as Qualified Purchase Contracts hereunder. The Administrative Agent acknowledges that all of the contracts currently listed on Exhibit D constitute "Qualified Purchase Contracts."
"Real Estate Taxes" shall mean all real estate taxes and all general and special assessments, levies, permits, inspection and license fees, all water and sewer rents and charges, all charges for utilities and all other public charges whether of a like kind or different nature, imposed upon or assessed against Borrower or the Project or any part thereof or upon the revenues, rents, issues, income and profits of the Project or arising in respect of the occupancy, use or possession thereof.
"Regulations A, D, T, U and X" shall mean, respectively, Regulations A, D, T, U and X of the Board of Governors of the Federal Reserve System (or any successor), as the same may be Modified and in effect from time to time.
"Regulatory Change" shall mean, with respect to any Lender, any change after the Closing Date in federal, state or foreign law or regulations (including Regulation D) or the adoption or making after such date of any interpretation, directive or request applying to a class of banks including such Lender of or under any federal, state or foreign law or regulations (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) by any Governmental Authority or monetary authority charged with the interpretation or administration thereof.
"Release" shall mean any release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching or migration into the indoor or outdoor environment, including the movement of Hazardous Substances through ambient air, soil, surface water, ground water, wetlands, land or subsurface strata.
"Release Price" shall mean the amount paid by Borrower to Administrative Agent to obtain a release or partial release of the Security Instrument. With respect to the Residential Component, the Release Price for each Unit shall be equal to the greater of (a) Net Sales Proceeds for each Unit, and (b) Loan Par Value. With respect to each Commercial Component, the Release Price shall be equal to the greater of (a) the Net Sales Proceeds and (b) the minimum release price established therefore on Exhibit J.
"Remediation" shall mean, without limitation, any investigation, site monitoring, response, remedial, removal, or corrective action, any activity to cleanup, detoxify, decontaminate, contain or otherwise remediate any Hazardous Substance, any actions to prevent, cure or mitigate any Release of any Hazardous Substance, any action to comply with any Environmental Laws or with any permits issued pursuant thereto, any inspection, investigation, study, monitoring, assessment, audit, sampling and testing, laboratory or other analysis, or evaluation relating to any Hazardous Substances.
"Replacement Note(s)" shall mean any Note executed by Borrower to the order of a Lender upon the assignment by such Lender of all or any portion of such Lender's interest in the Loan and the Loan Documents.
"Representation Agreement" shall mean that certain Representation Agreement of even date herewith executed by Guarantor in favor of Administrative Agent and Lenders.
"Request for Continuation or Conversion" shall mean the notice to be given by Borrower to Administrative Agent in respect of each Loan, in the form of Exhibit G hereto.
"Request for Loan Advance" shall mean the notice to be given by Borrower to Administrative Agent in respect of each Loan, in the form of Exhibit H hereto.
"Required Lenders" shall mean Lenders holding an aggregate Proportionate Share of at least 66.67% of the Facility Amount, or, if the Commitments have been terminated, then Lenders holding an aggregate Proportionate Share of the Outstanding Principal Balance of at least 66.67%.
"Residential Component" shall mean, collectively, the 67 residential condominium Units comprising a portion of the Improvements.
"Resort Services Component" shall mean the approximately 23,124 square foot Unit comprising a portion of the Improvements designated for use for skier services and mountain operations offices.
"Retail Component" shall mean the approximately 33,094 square foot Unit comprising a portion of the Improvements designated for use as retail space.
"Scheduled Maturity Date" shall mean August 1, 2008, as such date may be extended by the Extension Period.
"Security Documents" shall mean, collectively, the Security Instrument, the General Assignment, the Assignment of Architecture Agreements, the Assignment of Construction Agreements, any Controlled Account Agreement, the Assignment of Accounts, any other agreements executed by any Borrower Party granting a Lien on any Property or rights as security for the Loans, and all Uniform Commercial Code financing statements required by this Agreement (provided in no event shall the Guarantor Documents or the Environmental Indemnity be deemed Security Documents).
"Security Instrument" shall mean the Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing executed by Borrower for the benefit of Administrative Agent concurrently herewith, as the same may be Modified from time to time.
"Shaw Discharge Report" shall mean the reported unlawful discharge by the General Contractor of non--Hazardous Substances in to Gore Creek resulting in the General Contractor being cited for a violation of the Town of Vail Municipal Code.
"Solvent" shall mean, when used with respect to any Person, that at the time of determination: (a) the fair saleable value of its assets is in excess of the total amount of its liabilities (including contingent liabilities); (b) the present fair saleable value of its assets is greater than its probable liability on its existing debts as such debts become absolute and matured; (c) it is then able and expects to be able to pay its debts (including contingent debts and other commitments) as they mature; and (d) it has capital sufficient to carry on its business as conducted and as proposed to be conducted.
"Soft Costs" shall mean those Project Costs associated with the development, construction, marketing, leasing, operation and maintenance of the Improvements which are not Hard Costs or Appraised Land Value, including, without limitation, the sales and leasing commissions, architectural and engineering fees, consultant fees, professional fees, marketing fees and expenses, real estate taxes, insurance and bonding costs, financing fees, interest payable on the principal amount of the Loans and any other items identified as "Soft Costs" on the Project Budget.
"S&P" shall mean Standard & Poor's Ratings Services, a division of The McGraw--Hill Companies, Inc., or any successor thereto.
"Subsidiary" shall mean, with respect to any Person, any corporation, limited liability company, partnership or other entity of which at least a majority of the securities or other ownership interests having by the terms thereof ordinary voting power to elect a majority of the board of directors or other persons performing similar functions of such corporation, limited liability company, partnership or other entity (irrespective of whether or not at the time securities or other ownership interests of any other class or classes of such corporation, limited liability company, partnership or other entity shall have or might have voting power by reason of the happening of any contingency) is at the time directly or indirectly owned or controlled by such Person or one or more Subsidiaries of such Person or by such Person and one or more Subsidiaries of such Person.
"Survey" shall mean an ALTA survey of the Project reasonably satisfactory to Administrative Agent in form and content and made by a registered land surveyor reasonably satisfactory to Administrative Agent.
"Taxes" shall mean any and all present or future taxes, levies, imposts, duties, deductions, charges or withholdings imposed by any Governmental Authority.
"Title Company" shall mean Land Title Guaranty Co. and any one or more co--insurers or reinsurers acceptable to Administrative Agent.
"Title Policy" shall mean an ALTA policy or policies of title insurance satisfactory to Administrative Agent, together with evidence of the payment of all premiums due thereon, issued by the Title Company (a) insuring Administrative Agent for the benefit of the Lenders in an amount equal to the Facility Amount that Borrower is lawfully seized and possessed of a valid and subsisting fee simple interest in the Project and that the Security Instrument constitutes a valid fee simple deed of trust lien on the Project, subject to no Liens other than Permitted Liens and (b) providing (i) affirmative insurance or endorsements for coverage against all mechanics' and materialmen's liens, and (ii) such other affirmative insurance and endorsements as Administrative Agent may require (including, without limitation, 100 or its equivalent (comprehensive endorsement, modified for a lender), 116.1 ( same land as shown on survey), 116.4 (contiguity endorsement), 103.4 or equivalent (street access endorsement), 100.30 (mineral protection) and ALTA 8.1 (environmental).
"Trading with the Enemy Act" shall mean 50 U.S.C. App. 1 et seq.
"Transactions" shall mean, collectively, (a) the execution, delivery and performance by Borrower of this Agreement and the other Loan Documents, the borrowing of the Loans, the use of the proceeds thereof and (b) the execution, delivery and performance by the other Borrower Parties of the other Loan Documents to which they are a party and the performance of their obligations thereunder.
"Transfer" shall mean any transfer, sale, lease, assignment, mortgage, encumbrance (other than an Anticipated Encumbrance), pledge or conveyance (other than an Anticipated Encumbrance) of all or a portion of any of (a) the Project, (b) the direct or indirect Equity Interests in Borrower (other than Transfers of interest in Vail Resorts, Inc.), or (c) the direct or indirect right or power to direct the operations, decisions and affairs of Borrower, whether through the ability to exercise voting power, by contract or otherwise (other than rights in connection with the ownership of interest in Vail Resorts, Inc.).
"Types of Loans" refers to whether such Loan is a Base Rate Loan or a LIBOR Rate Loan, each of which constitutes a "Type". Loans hereunder are distinguished by "Type".
"Unavoidable Delay" shall mean any delay due to strikes, acts of God, fire, earthquake, floods, explosion, actions of the elements, other accidents or casualty, declared or undeclared war, terrorist acts, riots, mob violence, inability to procure or a general shortage of labor, equipment, facilities, energy, materials or supplies in the open market, failure of transportation, lockouts, actions of labor unions, condemnation, court orders, laws, rules, regulations or orders of Governmental Authorities, or other cause beyond the reasonable control of Borrower; provided, however, "Unavoidable Delays" shall not include delays caused by Borrower's lack of or inability to procure monies to fulfill Borrower's commitments and obligations under this Agreement or the other Loan Documents.
"Uniform Commercial Code" shall mean the Uniform Commercial Code of the State of Colorado and the state of formation/organization of Borrower, as applicable.
"Unit" shall mean each and any of the (i) 67 residential condominium units comprising the Residential Component, including Purchaser Upgrades and Unit Specific Personal Property, (ii) the approximately 100 Units comprising the Parking Club Component and (iii) each of the Hotel Component, the Resort Services Component, and the Retail Component.
"Unit Specific Personal Property" shall mean furnishings and other personal property sold or conveyed in connection with the sale of a Unit pursuant to a Qualified Purchase Contract.
"Unsatisfactory Work" shall mean any Construction Work which Administrative Agent and/or the Construction Consultant has reasonably determined has not been completed in a good and workmanlike manner, and, to the extent any Construction Work is not specifically addressed in the construction drawings and specifications, in a manner consistent with sound design principles and/or sound construction practices, or in substantial conformity with the Plans and Specifications, or in accordance with all Applicable Law.
"U.S. Bank" shall mean U.S. Bank National Association, a national banking association, and its successors and/or assigns.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
