Exhibit 10.5


    
      

    


    Exhibit
      10.5

     

    COMPLETION
      GUARANTY AGREEMENT

     

    In
      order
      to induce WELLS FARGO 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 THE CHALETS AT THE LODGE AT VAIL, 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 $123,000,000 (hereinafter referred
      to,
      collectively, as the "Note"),
      the
      undersigned, VAIL RESORTS, INC., a Delaware 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 6.1 (d) and 6.2 (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 or does not comply with the disbursement procedures
      set forth in the Construction Loan Agreement in any material respect (and such
      failure is not cured within ten (10) days after request by Bank), 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 hereunder or 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 hereunder or 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 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 §§ 13-50-102 or 13-50-103 (or under any corresponding future
      statute or rule of 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.

     

    (c)  This
      Guaranty constitutes a legal, valid and binding obligation of the Guarantor
      enforceable against Guarantor in accordance with its terms, except as limited
      by
      applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
      moratorium and other laws or equitable principles relating to or affecting
      the
      rights of creditors and general principles of equity.

     

    (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 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: Vail
      Resorts, Inc.

    390
      Interlocken Crescent, Suite 1000

    Broomfield,
      CO 80021

    Attention:  Jeffrey
      W. Jones

    Facsimile:  303-404-6404

     

    With
      a
      copy to: Holme
      Roberts & Owen LLP

    1700
      Lincoln Street, Suite 4100

    Denver,
      CO 80203

    Attention:  Robert
      H. Bach, Esq.

    Facsimile:  303-866-0200

     

    If
      to
      Bank: Wells
      Fargo Bank, National Association

    Denver
      Real Estate Group

    4643
      S.
      Ulster, Suite 1400

    Denver,
      CO 80237

    Attention:  Mr.
      John W. McKinny

    Facsimile:  303-741-0867

     

    With
      a
      copy to:  Ryley
      Carlock & Applewhite

    1999
      Broadway, Suite 1800

    Denver,
      CO 80202

    Attention:
      Andrew A. Folkerth, Esq.

    Facsimile:
      303-595-3159

    


    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.  Except
      to
      the extent permitted by the Loan Agreement, 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.

     

    18.  The
      Guarantor hereby represents and agrees that this is a continuing guaranty and
      (a) shall remain in full force and effect until the Loan has been repaid in
      full and the Commitments terminated or until such time as the Project reaches
      Completion (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 earnest 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
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    SIGNED
      AND DELIVERED as of the 19th
      day of
      March, 2007.

     

    GUARANTOR:

    


    VAIL
      RESORTS, INC., 

    a
      Delaware corporation 

    
 

    By:
      /s/
      Jeffrey W. Jones

    Jeffrey
      W. Jones

    Senior
      Executive Vice President

    


    


    


    BANK:

    


    WELLS
      FARGO BANK,

    NATIONAL
      ASSOCIATION, 

    a
      national banking association

    
 

    By:
      /s/
      John W. McKinny

    Name:  John
      W. McKinny

    Title:  
      Senior Vice President