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As filed with the Securities and Exchange Commission on January 18, 2002
Registration No.
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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FORM S-4
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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VAIL RESORTS, INC.
(Exact name of registrant as specified in its charter)
Exhibit 4.1
EXECUTION COPY
VAIL RESORTS, INC.
GUARANTORS (named in Schedule I hereto)
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$160,000,000
8 3/4% Senior Subordinated Notes due 2009
PURCHASE AGREEMENT
November 16, 2001
DEUTSCHE BANC ALEX. BROWN INC.
BANC OF AMERICA SECURITIES LLC
BEAR, STEARNS & CO. INC.
CIBC WORLD MARKETS CORP.
FLEET SECURITIES, INC.
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VAIL RESORTS, INC.
$160,000,000
8 3/4% Senior Subordinated Notes due 2009
PURCHASE AGREEMENT
November 16, 2001
New York, New York
DEUTSCHE BANC ALEX. BROWN INC.
BANC OF AMERICA SECURITIES LLC
BEAR, STEARNS & CO. INC.
CIBC WORLD MARKETS CORP
FLEET SECURITIES, INC.
c/o Deutsche Banc Alex. Brown Inc.
31 West 52nd Street
New York, New York 10019
Ladies & Gentlemen:
Vail Resorts, Inc., a Delaware corporation (the "Company"), proposes to
issue and sell to Deutsche Banc Alex. Brown Inc., Banc of America Securities
LLC, Bear, Stearns & Co. Inc., CIBC World Markets Corp. and Fleet Securities,
Inc. (each, an "Initial Purchaser" and, collectively, the "Initial Purchasers")
$160,000,000 in aggregate principal amount of 8 3/4% Senior Subordinated Notes
due 2009 (the "Restricted Notes"), subject to the terms and conditions set forth
herein. The Restricted Notes will be issued pursuant to an indenture (the
"Indenture"), to be dated the Closing Date (as defined), among the Company, the
Guarantors (as defined) and The Bank of New York, as trustee (the "Trustee").
The Notes (as defined) will be fully and unconditionally guaranteed (the
"Guarantees") as to payment of principal, interest, premium and liquidated
damages, if any, on an unsecured senior subordinated basis, jointly and
severally by each entity listed on Schedule I hereto (collectively, the
"Guarantors"). Capitalized terms used herein and not otherwise defined shall
have the meanings assigned to such terms in the Indenture.
1. Issuance of Securities. The Company proposes, upon the terms and subject
to the conditions set forth herein, to issue and sell to the Initial Purchasers
an aggregate of $160,000,000 in principal amount of Restricted Notes. The
Restricted Notes and the Exchange Notes (as defined) issuable in exchange
therefor are collectively referred to herein as the "Notes."
Upon original issuance thereof, and until such time as the same is no
longer required under the applicable requirements of the Securities Act of 1933,
as amended (the "Act"), the Restricted Notes (and all securities issued in
exchange therefor or in substitution thereof) shall bear the following legend:
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THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS,
EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT (a) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) (A "QIB") OR (b) IT IS NOT A U.S. PERSON AND
IS ACQUIRING THE NOTE EVIDENCED HEREBY IN AN OFFSHORE
TRANSACTION, (2) AGREES THAT IT WILL NOT, WITHIN TWO YEARS
AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR
OTHERWISE TRANSFER THIS SECURITY EXCEPT (a) TO THE COMPANY OR
ANY SUBSIDIARY THEREOF, (b) INSIDE THE UNITED STATES TO A QIB
IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (c)
INSIDE THE UNITED STATES TO AN ACCREDITED INVESTOR (AS DEFINED
IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT)
THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON
ITS BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE
FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE FOR THIS
SECURITY), (d) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER
THE SECURITIES ACT, (e) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE), OR (f) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, AND (3) AGREES THAT IT
WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED
A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THIS SECURITY, IF THE PROPOSED
TRANSFEREE IS AN ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR
TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE COMPANY SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER
OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER
IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES
ACT.
2. Offering. The Restricted Notes will be offered and sold to the Initial
Purchasers pursuant to an exemption from the registration requirements under the
Act. The
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Company has prepared an offering memorandum, dated November 16, 2001 (the
"Offering Memorandum"), relating to the Company and its subsidiaries and the
Restricted Notes.
The Initial Purchasers have advised the Company that the Initial Purchasers
will make offers (the "Exempt Resales") of the Restricted Notes on the terms set
forth in the Offering Memorandum, as amended or supplemented, solely to (i)
persons whom the Initial Purchasers reasonably believe to be "qualified
institutional buyers," as defined in Rule 144A under the Act ("QIBs") and (ii)
non-U.S. persons outside the United States in reliance upon Regulation S
("Regulation S") under the Act (each, a "Reg S Investor"). The QIBs and the Reg
S Investors are collectively referred to herein as the "Eligible Purchasers."
The Initial Purchaser will offer the Restricted Notes to such Eligible
Purchasers initially at a price equal to that set forth on the cover of the
Offering Memorandum. Such price may be changed by the Initial Purchasers at any
time without notice.
Holders (including subsequent transferees) of the Restricted Notes will
have the registration rights set forth in the registration rights agreement
relating thereto (the "Registration Rights Agreement"), to be dated the Closing
Date (as defined), for so long as such Restricted Notes constitute "Transfer
Restricted Securities" (as defined in the Registration Rights Agreement).
Pursuant to the Registration Rights Agreement, the Company and the Guarantors
will agree to file with the Securities and Exchange Commission (the
"Commission"), under the circumstances set forth therein, (i) a registration
statement under the Act (the "Exchange Offer Registration Statement") relating
to the Company's 8 3/4% Senior Subordinated Notes due 2009 (the "Exchange
Notes") and Guarantees thereof to be offered in exchange for the Restricted
Notes and Guarantees thereof (the "Exchange Offer") and (ii) a shelf
registration statement pursuant to Rule 415 under the Act (the "Shelf
Registration Statement" and, together with the Exchange Offer Registration
Statement, the "Registration Statements") relating to the resale by certain
holders of the Restricted Notes, and to use their commercially reasonable best
efforts to cause such Registration Statements to be declared effective and to
consummate the Exchange Offer. This Agreement, the Notes, the Guarantees, the
Indenture and the Registration Rights Agreement are hereinafter referred to
collectively as the "Operative Documents."
(a) Purchase, Sale and Delivery. On the basis of the representations,
warranties and covenants contained in this Agreement, and subject to its terms
and conditions, the Company agrees to issue and sell to the Initial Purchasers,
and each Initial Purchaser agrees, severally and not jointly, to purchase from
the Company the principal amounts of Restricted Notes set forth opposite the
name of such Initial Purchaser on Schedule II hereto. The purchase price for the
Restricted Notes will be $929.04 per $1,000 principal amount Restricted Note.
(b) Delivery of the Restricted Notes shall be made, against payment of the
purchase price therefor, at the offices of Kramer Levin Naftalis & Frankel LLP,
919 Third Avenue, New York, New York or such other location as may be mutually
acceptable. Such delivery and payment shall be made at 9:00 a.m., New York City
time, on November 21, 2001 or at such other time as shall be agreed upon by the
Initial Purchasers and the Company. The time and date of such delivery and
payment are herein called the "Closing Date."
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(c) On the Closing Date, one or more Restricted Notes in definitive global
form, registered in the name of Cede & Co., as nominee of The Depository Trust
Company ("DTC"), having an aggregate amount corresponding to the aggregate
principal amount of the Restricted Notes (the "Global Note") sold pursuant to
Exempt Resales to Eligible Purchasers shall be delivered by the Company to the
Initial Purchasers (or as the Initial Purchasers direct), against payment by the
Initial Purchasers of the purchase price therefor, by wire transfer of same day
funds, to an account designated by the Company, provided that the Company shall
give at least two business days' prior notice to the Initial Purchasers of the
information required to effect such wire transfer. The Global Note shall be made
available to the Initial Purchasers for inspection not later than 9:30 a.m. on
the business day immediately preceding the Closing Date.
3. Agreements of the Company and the Guarantors. Each of the Company and
the Guarantors covenants and agrees with the Initial Purchasers as follows:
(a) To advise the Initial Purchasers promptly and, if requested by the
Initial Purchasers, confirm such advice in writing, (i) of the issuance by any
state securities commission of any stop order suspending the qualification or
exemption from qualification of any Notes or the related Guarantees for offering
or sale in any jurisdiction, or the initiation of any proceeding for such
purpose by any state securities commission or other regulatory authority and
(ii) of the happening of any event that makes any statement of a material fact
made in the Offering Memorandum untrue or that requires the making of any
additions to or changes in the Offering Memorandum in order to make the
statements therein, in the light of the circumstances under which they are made,
not misleading. The Company and the Guarantors shall use their commercially
reasonable best efforts to prevent the issuance of any stop order or order
suspending the qualification or exemption of any Notes or the related Guarantees
under any state securities or Blue Sky laws and, if at any time any state
securities commission or other regulatory authority shall issue an order
suspending the qualification or exemption of any Notes or the related Guarantees
under any state securities or Blue Sky laws, the Company and the Guarantors
shall use their commercially reasonable best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time.
(b) To furnish the Initial Purchasers and those persons identified by the
Initial Purchasers to the Company, without charge, as many copies of the
Offering Memorandum, including all documents incorporated therein by reference,
and any amendments or supplements thereto, as the Initial Purchasers may
reasonably request. The Company and the Guarantors consent to the use of the
Offering Memorandum, and any amendments and supplements thereto required
pursuant hereto, by the Initial Purchasers in connection with Exempt Resales.
(c) Not to amend or supplement the Offering Memorandum during such period
as in the opinion of counsel for the Initial Purchasers the Offering Memorandum
is required by law to be delivered in connection with Exempt Resales and in
connection with market-making activities of the Initial Purchasers for so long
as any Restricted Notes are outstanding unless the Initial Purchasers shall
previously have been advised thereof and shall not have objected thereto within
a reasonable time after being furnished a copy thereof. The Company and the
Guarantors shall promptly prepare, upon the Initial Purchasers' request, any
amendment or supplement to the
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Offering Memorandum that may be necessary or advisable in connection with such
Exempt Resales or such market making activities.
(d) If, during the period referred to in Section 4(c) above, any event
shall occur as a result of which, in the judgment of the Company and the
Guarantors or in the reasonable opinion of counsel for the Company and the
Guarantors or counsel for the Initial Purchasers, it becomes necessary or
advisable to amend or supplement the Offering Memorandum in order to make the
statements therein, in the light of the circumstances when such Offering
Memorandum is delivered to an Eligible Purchaser, not misleading, or if it is
necessary or advisable to amend or supplement the Offering Memorandum to comply
with applicable law, (i) to notify the Initial Purchasers and (ii) forthwith to
prepare an appropriate amendment or supplement to the Offering Memorandum so
that the statements therein as so amended or supplemented will not, in the light
of the circumstances when it is so delivered, be misleading, or so that the
Offering Memorandum will comply with applicable law.
(e) To cooperate with the Initial Purchasers and counsel for the Initial
Purchasers in connection with the qualification or registration of the
Restricted Notes and the Guarantees thereof under the securities or Blue Sky
laws of such jurisdictions as the Initial Purchasers may reasonably request and
to continue such qualification in effect so long as required for the Exempt
Resales; provided, however, that neither the Company nor any Guarantor shall be
required in connection therewith to register or qualify as a foreign corporation
where it is not now so qualified or to take any action that would subject it to
service of process in suits or taxation, in each case, other than as to matters
and transactions relating to the Offering Memorandum or Exempt Resales, in any
jurisdiction where it is not now so subject.
(f) Whether or not the transactions contemplated by this Agreement are
consummated or this Agreement becomes effective or is terminated, to pay all
costs, expenses, fees and taxes incident to the performance of the obligations
of the Company and the Guarantors hereunder, including in connection with: (i)
the preparation, printing, filing and distribution of the Offering Memorandum
(including but not limited to, without limitation, financial statements) and all
amendments and supplements thereto required pursuant hereto, (ii) the
preparation (including, without limitation, duplication costs) and delivery of
all agreements, correspondence and all other documents prepared and delivered in
connection herewith and with the Exempt Resales, (iii) the issuance, transfer
and delivery of the Restricted Notes and the Guarantees endorsed thereon to the
Initial Purchasers, (iv) the qualification or registration of the Notes and the
related Guarantees for offer and sale under the securities or Blue Sky laws of
the several states (including, without limitation, the cost of printing and
mailing a preliminary and final Blue Sky Memorandum and the reasonable fees and
disbursements of counsel for the Initial Purchasers relating thereto), (v)
furnishing such copies of the Offering Memorandum, and all amendments and
supplements thereto, as may be requested for use in connection with Exempt
Resales, (vi) the preparation of certificates for the Notes (including, without
limitation, printing and engraving thereof), (vii) the fees, disbursements and
expenses of the Company's and the Guarantors' counsel and accountants, (viii)
all fees and expenses (including fees and expenses of counsel) of the Company
and the Guarantors in connection with the approval of the Notes by DTC for
"book-entry" transfer, (ix) rating the Notes by rating agencies, (x) the
reasonable fees and expenses of the Trustee and its counsel, (xi) the
performance by the Company and the
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Guarantors of their other obligations under this Agreement and the other
Operative Documents and (xii) "roadshow" travel and other expenses incurred in
connection with the marketing and sale of the Notes.
(g) To use the proceeds from the sale of the Restricted Notes in the manner
described in the Offering Memorandum under the caption "Use of Proceeds."
(h) Not to voluntarily claim, and to resist actively any attempts to claim,
the benefit of any usury laws against the holders of any Notes.
(i) To use their respective commercially reasonable best efforts to do and
perform all things required to be done and performed under this Agreement by
them prior to or after the Closing Date and use their respective commercially
reasonable best efforts to satisfy all conditions precedent on their part to the
delivery of the Restricted Notes.
(j) Not to sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in the Act) that would be
integrated with the sale of the Restricted Notes in a manner that would require
the registration under the Act of the sale to the Initial Purchasers or the
Eligible Purchasers of the Restricted Notes or to take any other action that
would result in the Exempt Resales not being exempt from registration under the
Act.
(k) For so long as any of the Notes remain outstanding and during any
period in which the Company and the Guarantors are not subject to Section 13 or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
to make available to any holder or beneficial owner of Restricted Notes in
connection with any sale thereof and any prospective purchaser of such
Restricted Notes from such holder or beneficial owner, the information required
by Rule 144A(d)(4) under the Act.
(l) To cause the Exchange Offer to be made in the appropriate form to
permit registered Exchange Notes and the Guarantees thereof to be offered in
exchange for the Restricted Notes and the Guarantees thereof and to comply with
all applicable federal and state securities laws in connection with the Exchange
Offer.
(m) To comply with the Registration Rights Agreement and the representation
letters to DTC relating to the approval of the Notes by DTC for "book-entry"
transfer.
(n) To effect the inclusion of the Notes in PORTAL and to obtain approval
of the Restricted Notes by DTC for "book-entry" transfer.
(o) During a period of two years following the Closing Date, to deliver
without charge to the Initial Purchasers, as they may reasonably request,
promptly upon their becoming available, copies of (i) all reports or other
publicly available information that the Company and the Guarantors shall mail or
otherwise make available to their securityholders and (ii) all reports,
financial statements and proxy or information statements filed by the Company
with the Commission or any national securities exchange and such other publicly
available information concerning the Company or any of its subsidiaries.
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(p) Prior to the Closing Date, to furnish to the Initial Purchasers, as
soon as they have been prepared in the ordinary course by the Company, copies of
any unaudited interim financial statements for any period subsequent to the
periods covered by the financial statements appearing or incorporated in the
Offering Memorandum.
(q) Not to take, directly or indirectly, any action designed to, or that
might reasonably be expected to, cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Notes. Except as permitted by the Act, neither the Company nor
any Guarantor will distribute any (i) preliminary offering memorandum, (ii)
offering memorandum, including, without limitation, the Offering Memorandum, or
(iii) other offering material in connection with the offering and sale of the
Notes.
4. Representations and Warranties.
(a) The Company and the Guarantors, jointly and severally, represent and
warrant to the Initial Purchasers that:
(i) The Offering Memorandum as of its date and as of the Closing Date
does not and will not, and any supplement or amendment to it will not,
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, except that the representations and warranties
contained in this paragraph shall not apply to statements in or omissions
from the Offering Memorandum (or any supplement or amendment thereto) made
in reliance upon and in conformity with information relating to the Initial
Purchasers furnished to the Company and the Guarantors in writing by the
Initial Purchasers expressly for use therein. No stop order preventing the
use of the Offering Memorandum, or any amendment or supplement thereto, or
any order asserting that any of the transactions contemplated by this
Agreement are subject to the registration requirements of the Act, has been
issued.
(ii) (A) The documents incorporated by reference in the Offering
Memorandum, when they were filed with the Commission, did not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; (B) the documents incorporated by reference in the Offering
Memorandum when they were filed with the Commission conformed in all
material respects to the requirements of the Exchange Act; and (C) any
further documents so filed and incorporated by reference in the Offering
Memorandum or any further amendment or supplement thereto, when such
documents are filed with the Commission, will conform in all material
respects to the requirements of the Exchange Act.
(iii) The accountants who have certified or will certify the financial
statements included or to be included as part of the Offering Memorandum
are independent accountants as required by the Act. The historical
consolidated financial statements, together with related schedules and
notes thereto, comply as to form in all material
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respects with the requirements applicable to registration statements on
Form S-1 under the Act and present fairly in all material respects the
consolidated financial position and results of operations of the Company
and its subsidiaries at the dates and for the periods indicated. Such
financial statements have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis throughout the
periods presented. The pro forma financial statements included in the
Offering Memorandum fairly present the information purported to be shown
therein at the respective dates thereof and for all respective periods
covered thereby and all adjustments have been properly applied.
(iv) Subsequent to the respective dates as of which information is
given in the Offering Memorandum and up to the Closing Date, except as set
forth in the Offering Memorandum, there has not been any material adverse
change in the business, properties, operations, condition (financial or
other) or results of operations of the Company and the subsidiaries (as
defined below) taken as a whole, whether or not arising from transactions
in the ordinary course of business, and since the date of the latest
balance sheet of the Company included in the Offering Memorandum, and
except as described in the Offering Memorandum, (A) neither the Company nor
any subsidiary (1) has incurred or undertaken any liabilities or
obligations, direct or contingent, that are, individually or in the
aggregate, material to the Company and the subsidiaries taken as a whole,
or (2) entered into any transaction not in the ordinary course of business
that is material to the Company and the subsidiaries taken as a whole; and
(B) the Company has not declared or paid any dividend on or made any
distribution of or with respect to any shares of its capital stock or
redeemed, purchased or otherwise acquired or agreed to redeem, purchase or
otherwise acquire any shares of its or its subsidiaries' capital stock. As
used in this Agreement, the term "subsidiary" means any corporation,
partnership, joint venture, association, company, business trust or other
entity in which the Company directly or indirectly (x) beneficially owns or
controls at least 50% of the outstanding voting securities having by the
terms thereof ordinary voting power to elect a majority of the board of
directors (or other body fulfilling a substantially similar function) of
such entity (irrespective of whether or not at the time any class or
classes of such voting securities shall have or might have voting power by
reason of the happening of any contingency) or (y) has the authority or
ability to control the policies of such entity (including, but without
limitation, any partnership of which the Company or a subsidiary is a
general partner or owns or has the right to obtain a majority of limited
partnership interests and any joint venture in which the Company or a
subsidiary has liability similar to the liability of a general partner of a
partnership or owns or has the right to obtain at least 50% of the joint
venture interests); provided, however, that for the purposes of any
representations and warranties made in this Section 5, the term
"subsidiaries" shall include Keystone/Intrawest LLC, Slifer, Smith &
Frampton/Vail Associates Real Estate, L.L.C., SSI Venture, LLC and Resort
Technology Partners, LLC only to the extent of the Company's actual
knowledge (the Company hereby representing to the Initial Purchasers that
the Company does not manage the day to day operations of any of such
subsidiaries); and provided further, that, for the purposes of any
representations and warranties made in this Section 5, except for Section
5(a)(i) and (ii), the term "subsidiaries" shall exclude
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Avon Partners II, Limited Liability Company; Clinton Ditch & Reservoir
Company; BC Housing, LLC; Eagle Park Reservoir Company; Boulder/Beaver,
LLC; Eclipse Television and Sports Marketing LLC; Breckenridge Terrace,
LLC; and Tenderfoot Seasonal Housing, LLC.
(v) When the Restricted Notes and the Guarantees thereof are issued
and delivered pursuant to this Agreement, no Restricted Note or Guarantee
thereof will be of the same class (within the meaning of Rule 144A under
the Act) as securities of the Company or any Guarantor that are listed on a
national securities exchange registered under Section 6 of the Exchange Act
or that are quoted in a United States automated inter-dealer quotation
system.
(vi) Each of the Company and the Guarantors has all requisite
corporate power and authority to execute, deliver and perform its
obligations under this Agreement and each of the other Operative Documents
to which it is a party. This Agreement has been duly and validly
authorized, executed and delivered by the Company and each Guarantor and
(assuming the due authorization, execution and delivery by the Initial
Purchasers) is a legal and binding obligation of the Company and each
Guarantor, enforceable against each of them in accordance with its terms,
subject to (A) applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or similar laws now or hereafter in effect
relating to creditors rights generally and (B) general principles of equity
(regardless of whether such enforceability is considered in a proceeding at
law or in equity except insofar as rights to indemnification and
contribution contained herein may be limited by federal or state securities
laws or related public policy).
(vii) The Indenture has been duly and validly authorized by the
Company and each Guarantor and, when duly executed and delivered by the
Company and each Guarantor (assuming the due authorization, execution and
delivery by the Trustee), will be a legal and binding agreement of the
Company and each Guarantor, enforceable against each of them in accordance
with its terms, subject to (A) applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or similar laws now or
hereafter in effect relating to creditors rights generally and (B) general
principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity except insofar as rights to
indemnification and contribution contained herein may be limited by federal
or state securities laws or related public policy). On the Closing Date,
the Indenture will conform in all material respects to the requirements of
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"),
and the rules and regulations of the Commission applicable to an indenture
which is qualified thereunder. The Offering Memorandum contains a summary
of the material terms of the Indenture, which is accurate in all material
respects.
(viii) The Registration Rights Agreement has been duly and validly
authorized by the Company and each Guarantor and, when duly executed and
delivered by the Company and each Guarantor (assuming due authorization,
execution and delivery by the Initial Purchasers), will be a legal and
binding obligation of the Company and each Guarantor, enforceable against
each of them in accordance with its terms, subject to (A) applicable
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bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or
similar laws now or hereafter in effect relating to creditors rights
generally and (B) general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in equity except
insofar as rights to indemnification and contribution contained herein may
be limited by federal or state securities laws or related public policy).
The Offering Memorandum contains a summary of the material terms of the
Registration Rights Agreement, which is accurate in all material respects.
(ix) The Restricted Notes have been duly and validly authorized by the
Company for issuance and sale to the Initial Purchasers pursuant to this
Agreement and, when issued and authenticated in accordance with the terms
of the Indenture and delivered against payment therefor in accordance with
the terms hereof and thereof, will be the legal and binding obligations of
the Company, enforceable against it in accordance with their terms and
entitled to the benefits of the Indenture, subject to (A) applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or
similar laws now or hereafter in effect relating to creditors rights
generally and (B) general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in equity except
insofar as rights to indemnification and contribution contained herein may
be limited by federal or state securities laws or related public policy).
The Offering Memorandum contains a summary of the material terms of the
Notes, which is accurate in all material respects.
(x) The Guarantees of the Restricted Notes have been duly and validly
authorized by each of the Guarantors and, when executed and delivered in
accordance with the terms of the Indenture and when the Restricted Notes
have been issued and authenticated in accordance with the terms of the
Indenture and delivered against payment therefor in accordance with the
terms hereof and thereof, will be the legal and binding obligations of each
of the Guarantors, enforceable against each of them in accordance with
their terms and entitled to the benefits of the Indenture, subject to (A)
applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or similar laws now and hereafter in effect relating to
creditors rights generally and (B) general principles of equity (regardless
of whether such enforceability is considered in a proceeding at law or in
equity except insofar as rights to indemnification and contribution
contained herein may be limited by federal or state securities laws or
related public policy). The Offering Memorandum contains a summary of the
material terms of the Guarantees, which is accurate in all material
respects.
(xi) The Exchange Notes have been duly and validly authorized for
issuance by the Company and, when issued and authenticated in accordance
with the terms of the Exchange Offer and the Indenture, will be the legal,
valid and binding obligations of the Company, enforceable against it in
accordance with their terms and entitled to the benefits of the Indenture,
subject to (A) applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or similar laws now and hereafter in effect
relating to creditors rights generally and (B) general principles of equity
(regardless of whether such enforceability is considered in a proceeding at
law or in equity except insofar as
-11-
rights to indemnification and contribution contained herein may be limited
by federal or state securities laws or related public policy).
(xii) The Guarantees of the Exchange Notes have been duly and validly
authorized by each of the Guarantors and, when executed and delivered in
accordance with the terms of the Indenture and when the Exchange Notes have
been issued and authenticated in accordance with the terms of the Exchange
Offer and the Indenture, will be the legal and binding obligations of each
of the Guarantors, enforceable against each of them in accordance with
their terms and entitled to the benefits of the Indenture, subject to (A)
applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or similar laws now and hereafter in effect relating to
creditors rights generally and (B) general principles of equity (regardless
of whether such enforceability is considered in a proceeding at law or in
equity except insofar as rights to indemnification and contribution
contained herein may be limited by federal or state securities laws or
related public policy).
(xiii) The execution, delivery or performance by the Company or any
Guarantor of this Agreement or any of the other Operative Documents to
which it is a party will not (1) conflict with or result in a breach of any
of the terms and provisions of, or constitute a default under (or an event
that with notice or lapse of time, or both, would constitute a default
under) or require approval or consent under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Company or any subsidiary pursuant to the terms of any agreement,
contract, indenture, mortgage, lease, license, arrangement or understanding
to which the Company or a subsidiary is a party, or to which any of their
properties is subject, that is material to the Company and the subsidiaries
taken as a whole (hereafter, collectively, "Material Contracts"), or any
governmental franchise, license or permit heretofore issued to the Company
or any subsidiary that is material to the Company and the subsidiaries
taken as a whole (hereafter, collectively, "Material Permits"), (2) violate
or conflict with any provision of the certificate of incorporation, by-laws
or similar governing instruments of the Company or any subsidiary listed on
Schedule III hereto (the "Material Subsidiaries") or (3) violate or
conflict with any judgment, decree, order, statute, rule or regulation of
any court or any public, governmental or regulatory agency or body having
jurisdiction over the Company or any Material Subsidiary or any of its
respective properties or assets, except for those violations or conflicts,
that, individually or in the aggregate, could not reasonably be expected to
have, a material adverse effect on the Company and its subsidiaries, taken
as a whole (hereinafter referred to as a "Material Adverse Effect").
(xiv) No consent, approval, authorization, order, registration,
filing, qualification, license or permit of or with any court or any
public, governmental or regulatory agency or body having jurisdiction over
the Company or any subsidiary or any of its respective properties or assets
is required for (A) the execution, delivery and performance by each of the
Company and the Guarantors of this Agreement or any of the other Operative
Documents to which it is a party or (B) the issuance and sale of the Notes,
the issuance of the Guarantees and the transactions contemplated hereby and
thereby, except such as have been or will be obtained and made on or prior
to the Closing Date (or, in the case of the
-12-
Registration Rights Agreement, will be obtained and made under the Act, the
Trust Indenture Act, and state securities or Blue Sky laws and
regulations).
(xv) All of the currently outstanding shares of capital stock of the
Company, and all of the outstanding shares of capital stock (or similar
interests) owned directly or indirectly by the Company of each of the
subsidiaries of the Company have been duly and validly authorized and
issued, are fully paid and nonassessable and were not issued in violation
of or subject to any preemptive rights. The Company has, as of the date
hereof, and will have, as of the Closing Date an authorized and outstanding
capitalization as set forth in the Offering Memorandum, both on an
historical basis and as adjusted to give effect to the offering of the
Notes. The Company owns directly or indirectly such percentage of the
outstanding capital stock (or similar interests) of each of its
subsidiaries as is set forth opposite the name of such subsidiary in
Schedule IV hereto, free and clear of all claims, liens, security
interests, pledges, charges, encumbrances, stockholders agreements and
voting trusts, subject to such exceptions as would not have a Material
Adverse Effect.
(xvi) The Company has no subsidiaries other than those listed in
Schedule IV hereto. Each of the Company and the Material Subsidiaries has
been duly organized and is validly existing as a corporation or other
entity in good standing under the laws of its jurisdiction of incorporation
or organization, as the case may be. Each of the Company and the Material
Subsidiaries is duly qualified and in good standing as a foreign
corporation or other entity in each jurisdiction in which the character or
location of its properties (owned, leased or licensed) or the nature or
conduct of its business makes such qualification necessary, except for
those failures to be so qualified or in good standing that will not have a
Material Adverse Effect. Each of the Company and the Material Subsidiaries
has all requisite corporate, or other, power and authority, and all
necessary consents, approvals, authorizations, orders, registrations,
filings, qualifications, licenses and permits of and from all public,
regulatory or governmental agencies and bodies, to own, lease and operate
its properties and conduct its business as now being conducted and as
described in the Offering Memorandum (except for those the absence of which
would not have a Material Adverse Effect). Neither the Company nor any of
the Material Subsidiaries has received any notice of proceedings relating
to revocation or modification of any such consents, approvals,
authorizations, orders, registrations, filings, qualifications, licenses or
permits.
(xvii) Neither the Company nor any subsidiary is in violation or
breach of, or in default under (nor has an event occurred that with notice,
lapse of time or both, would constitute a default under) any Material
Contract, and each Material Contract is in full force and effect, and is
the legal, valid, and binding obligation of the Company or such subsidiary,
as the case may be, and (subject to applicable bankruptcy, insolvency, and
other laws affecting the enforceability of creditors' rights generally) is
enforceable as to the Company or such subsidiary, as the case may be, in
accordance with its terms, subject to such exceptions which, individually
or in the aggregate, do not have and are not reasonably likely to have a
Material Adverse Effect. Neither the Company nor any
-13-
Material Subsidiary is in violation of its certificate of incorporation,
by-laws or similar governing instrument.
(xviii) There is no litigation, arbitration, claim, governmental or
other proceeding or investigation pending or, to the best knowledge of the
Company, threatened in writing with respect to the Company or any Material
Subsidiary, or any of its respective operations, businesses, properties or
assets, except as described in the Offering Memorandum, that, individually
or in the aggregate, could reasonably be expected to have a Material
Adverse Effect. Neither the Company nor any Material Subsidiary is, or, to
the best knowledge of the Company, with the giving of notice or lapse of
time or both would be, in violation of or non-compliance with the
requirements of any Material Permit or the provisions of any law, rule,
regulation, order, judgment or decree, including, but without limitation
thereto, all applicable federal, state and local laws and regulations
relating to (A) zoning, land use, protection of the environment, human
health and safety or hazardous or toxic substances, wastes, pollutants or
contaminants and (B) employee or occupational safety, discrimination in
hiring, promotion or pay of employees, employee hours and wages or employee
benefits, except for such violations or failures of compliance that,
individually or in the aggregate, would not have a Material Adverse Effect.
(xix) Except as described in the Offering Memorandum, the Company and
each Material Subsidiary have (A) good and marketable title to all real and
personal properties owned by them, free and clear of all liens, security
interests, pledges, charges, encumbrances, and mortgages, and (B) valid,
subsisting and enforceable leases for all real and personal properties
leased by them, in each case, subject to such exceptions as, individually
or in the aggregate, do not have and are not reasonably likely to have a
Material Adverse Effect. Except as disclosed in the Offering Memorandum, no
real property owned, leased, licensed or used by the Company or by a
Material Subsidiary lies in an area that is, or to the best knowledge of
the Company will be, subject to zoning, use, or building code restrictions
that would prohibit or prevent the continued effective ownership, leasing,
licensing, or use of such real property in the business of the Company or
such Material Subsidiary as presently conducted or as the Offering
Memorandum indicates is contemplated to be conducted, subject to such
exceptions which, individually or in the aggregate, do not have and are not
reasonably likely to have a Material Adverse Effect.
(xx) The Company, directly or through one or more of the subsidiaries,
owns or possesses all patents, patent rights, licenses, inventions,
copyrights, trademarks, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), service marks and trade names (collectively,
"Intellectual Property") necessary to conduct its business as now conducted
and proposed to be conducted as disclosed in the Offering Memorandum,
except where the failure to own or possess such Intellectual Property,
individually or in the aggregate, would not have a Material Adverse Effect.
Neither the Company nor any subsidiary has received notice of infringement
of or conflict with the asserted rights of others with respect to any
Intellectual Property, except for those which would not have a
-14-
Material Adverse Effect. To the best actual knowledge of the Company's
senior management (no duty of inquiry being implied), there is no
infringement by others of any Intellectual Property of the Company or any
subsidiary that has had or may in the future have a Material Adverse
Effect. The Company or a predecessor has registered, and the Company or a
subsidiary owns the rights to all registrations of the rights to the
trademark and related logo for each of "Vail" and "Beaver Creek" in all
jurisdictions in which the failure to so register or to so own such rights
to such registrations would, individually or in the aggregate, have a
Material Adverse Effect.
(xxi) To the Company's best knowledge, neither the Company nor any
subsidiary, nor any director, officer or employee of the Company or any
subsidiary has, directly or indirectly, used any corporate funds for
unlawful contributions, gifts, entertainment, or other unlawful expenses
relating to political activity, made any unlawful payment to foreign or
domestic government officials or employees or to foreign or domestic
political parties or campaigns from corporate funds, violated any provision
of the Foreign Corrupt Practices Act of 1977, as amended, or made any
bribe, rebate, payoff, influence payment, kickback, or other unlawful
payment.
(xxii) There are no holders of securities of the Company or any of its
subsidiaries who, by reason of the execution by the Company or any of the
Guarantors of this Agreement or any other Operative Document to which it is
a party or the consummation by the Company or any of the Guarantors of the
transactions contemplated hereby and thereby, have the right to request or
demand that the Company or any of its subsidiaries register under the Act
or analogous foreign laws and regulations securities held by them other
than pursuant to the Registration Right Agreement.
(xxiii) None of the Company or any of its subsidiaries is an
"investment company" or a company "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(xxiv) Except pursuant to this Agreement, there are no contracts,
agreements or understandings between the Company and its subsidiaries and
any other person that would give rise to a valid claim against the Company
or any of its subsidiaries or the Initial Purchasers for a brokerage
commission, finder's fee or like payment in connection with the issuance,
purchase and sale of the Notes.
(xxv) Other than as disclosed in the Offering Memorandum, no labor
dispute with the employees of the Company or any subsidiary exists or, to
the best knowledge of the Company, is imminent that, individually or in the
aggregate, is reasonably likely to have a Material Adverse Effect.
(xxvi) (A) All United States Federal income tax returns of the Company
and each subsidiary required by law to be filed have been filed and all
taxes shown by such returns or otherwise assessed that are due and payable
have been paid, except assessments against which appeals have been or will
be promptly taken and (B) the Company and the subsidiaries have filed all
other tax returns that are required to have been filed by them
-15-
pursuant to the applicable laws of all other jurisdictions, except, as to
each of the foregoing clauses (A) and (B), insofar as the failure to file
such returns, individually or in the aggregate, would not have a Material
Adverse Effect, and the Company and the subsidiaries have paid all taxes
due pursuant to said returns or pursuant to any assessment received by the
Company or any subsidiary, except for such taxes, if any, as are being
contested in good faith and as to which adequate reserves have been
provided in accordance with US GAAP. The charges, accruals and reserves on
the consolidated books of the Company in respect of any tax liability for
any years not finally determined are adequate to meet any assessments or
re-assessments for additional tax for any years not finally determined,
except to the extent of any inadequacy that would not have a Material
Adverse Effect.
(xxvii) The Company and each subsidiary is insured by insurers of
recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which the
Company and the subsidiaries are engaged.
(xxviii) Except as disclosed in, or incorporated by reference into,
the Offering Memorandum, there are no business relationships or related
party transactions of the nature described in Item 404 of Regulation S-K of
the Commission involving the Company or any other persons referred to in
such Item 404, except for such transactions that would be considered
immaterial under such Item 404.
(xxix) No action has been taken and no statute, rule, regulation or
order has been enacted, adopted or issued by any governmental agency that
prevents the issuance of the Notes or the Guarantees or prevents or
suspends the use of the Offering Memorandum; no injunction, restraining
order or order of any nature by a federal or state court of competent
jurisdiction has been issued that prevents the issuance of the Notes or the
Guarantees or prevents or suspends the sale of the Notes or the Guarantees
in any jurisdiction referred to in Section 4(e) hereof; and every request
of any securities authority or agency of any jurisdiction for additional
information has been complied with in all material respects.
(xxx) No registration under the Act of the Restricted Notes or the
Guarantees thereof is required for the sale of the Restricted Notes to the
Initial Purchasers as contemplated hereby or for the Exempt Resales
assuming (A) that the purchasers who buy the Restricted Notes in the Exempt
Resales are Eligible Purchasers and (B) the accuracy of the Initial
Purchasers' representations regarding the absence of general solicitation
in connection with the sale of Restricted Notes to the Initial Purchasers
and the Exempt Resales contained herein. No form of general solicitation or
general advertising (as defined in Regulation D under the Act) was used by
the Company or any of the Guarantors or any of their representatives (other
than the Initial Purchasers, as to which the Company and the Guarantors
make no representation or warranty) in connection with the offer and sale
of any of the Restricted Notes or the Guarantees thereof or in connection
with Exempt Resales, including, but not limited to, articles, notices or
other communications published in any newspaper, magazine, or similar
medium or broadcast over television or radio, or any seminar or meeting
whose attendees have been invited by any general solicitation or general
advertising. No securities of the
-16-
same class as the Notes have been issued and sold by the Company or any of
its subsidiaries within the six-month period immediately prior to the date
hereof.
(xxxi) The execution and delivery of this Agreement and the other
Operative Documents and the sale of the Restricted Notes to be purchased by
Eligible Purchasers will not involve any prohibited transaction within the
meaning of Section 406 of ERISA or Section 4975 of the Internal Revenue
Code of 1986, as amended. The representation made by the Company and the
Guarantors in the preceding sentence is made in reliance upon and subject
to the accuracy of, and compliance with, the representations and covenants
made or deemed made by Eligible Purchasers as set forth in the Offering
Memorandum under the caption "Transfer Restrictions."
(xxxii) The statistical and market-related data included in the
Offering Memorandum are based on or derived from sources which the Company
and the Guarantors believe to be reliable and accurate in all material
respects.
(xxxiii) The Offering Memorandum, as of its date, contains the
information specified in, and meets the requirements of, Rule 144A(d)(4)
under the Act.
(xxxiv) Prior to the effectiveness of any Registration Statement, the
Indenture is not required to be qualified under the Trust Indenture Act.
(xxxv) None of the execution, delivery and performance of this
Agreement, the issuance and sale of the Notes, the application of the
proceeds from the issuance and sale of the Notes and the consummation of
the transactions contemplated thereby as set forth in the Offering
Memorandum, will violate Regulations T, U or X promulgated by the Board of
Governors of the Federal Reserve System.
(xxxvi) Neither the Company nor any Guarantor intends to, nor believes
that it will, incur debts beyond its ability to pay such debts as they
mature. The present fair saleable value of the assets of the Company and
each Guarantor exceeds the amount that will be required to be paid on or in
respect of its existing debts and other liabilities (including contingent
liabilities) as they become absolute and matured. The assets of the Company
and each Guarantor does not constitute unreasonably small capital to carry
out its business as conducted or as proposed to be conducted. Upon the
issuance of the Notes and the Guarantees, the present fair saleable value
of the assets of the Company and each Guarantor will exceed the amount that
will be required to be paid on or in respect of its existing debts and
other liabilities (including contingent liabilities) as they become
absolute and matured. Upon the issuance of the Notes and the Guarantees,
the assets of the Company and each Guarantor will not constitute
unreasonably small capital to carry out its business as now conducted.
(xxxvii) Each certificate signed by any officer of the Company or any
Guarantor and delivered to the Initial Purchasers or counsel for the
Initial Purchasers shall be deemed to be a representation and warranty by
the Company or such Guarantor, as the case may be, to the Initial
Purchasers as to the matters covered thereby.
-17-
(xxxviii)Each of the Company and the Guarantors acknowledge that the
Initial Purchasers and, for purposes of the opinions to be delivered to the
Initial Purchasers pursuant to Section 8 hereof, counsel for the Company
and the Guarantors and counsel for the Initial Purchasers, will rely upon
the accuracy and truth of the foregoing representations and hereby consent
to such reliance.
(xxxix) None of the Company, the Guarantors nor any of their
respective affiliates or any person acting on its or their behalf (other
than the Initial Purchasers, as to whom the Company and the Guarantors make
no representation) has engaged or will engage in any directed selling
efforts within the meaning of Regulation S with respect to the Restricted
Notes.
(xl) The Restricted Notes offered and sold in reliance on Regulation S
have been and will be offered and sold only in offshore transactions.
(xli) The sale of the Restricted Notes pursuant to Regulation S is not
part of a plan or scheme to evade the registration provisions of the Act.
(xlii) The Company, the Guarantors and their respective affiliates and
all persons acting on their behalf (other than the Initial Purchasers, as
to whom the Company and the Guarantors make no representation) have
complied with and will comply with the offering restrictions requirements
of Regulation S in connection with the offering of the Restricted Notes
outside the United States and, in connection therewith, the Offering
Memorandum contains the disclosure required by Rule 902(g)(2).
(xliii) Each of the Company and the Guarantors is a "reporting
issuer," as defined in Rule 902 under the Act.
(b) Each of the Initial Purchasers, severally and not jointly, represents,
warrants and covenants to the Company and the Guarantors and agrees that:
(i) Such Initial Purchaser is a QIB, with such knowledge and
experience in financial and business matters as are necessary in order to
evaluate the merits and risks of an investment in the Restricted Notes.
(ii) Such Initial Purchaser (A) is not acquiring the Restricted Notes
with a view to any distribution thereof that would violate the Act or the
securities laws of any state of the United States or any other applicable
jurisdiction and (B) will be reoffering and reselling the Restricted Notes
only to QIBs in reliance on the exemption from the registration
requirements of the Act provided by Rule 144A and in offshore transactions
in reliance upon Regulation S under the Act.
(iii) No form of general solicitation or general advertising (within
the meaning of Regulation D under the Act) has been or will be used by such
Initial Purchaser or any of its representatives in connection with the
offer and sale of any of the Restricted Notes or Guarantees, including, but
not limited to, articles, notices or other communications published in any
newspaper, magazine, or similar medium or broadcast over television or
-18-
radio, or any seminar or meeting whose attendees have been invited by any
general solicitation or general advertising.
(iv) Such Initial Purchaser agrees that, in connection with the Exempt
Resales, it will solicit offers to buy the Restricted Notes only from, and
will offer to sell the Restricted Notes only to, Eligible Purchasers. Such
Initial Purchaser further agrees that (A) it will offer to sell the
Restricted Notes only to, and will solicit offers to buy the Restricted
Notes only from Eligible Purchasers who in purchasing such Restricted Notes
will be deemed to have represented and agreed that they are purchasing the
Restricted Notes for their own account or accounts with respect to which
they exercise sole investment discretion and that they or such accounts are
Eligible Purchasers, and (B) such Eligible Purchasers will acknowledge and
agree that such Restricted Notes will not have been registered under the
Act and may be resold, pledged or otherwise transferred within two years of
issuance only (1) to the Company or any subsidiary thereof, (2) inside the
United States to a QIB in compliance with Rule 144A under the Act, (3)
inside the United States to an accredited investor (as defined in Rule
501(a)(1), (2), (3) or (7) under the Act) that, prior to such transfer,
furnishes (or has furnished on its behalf by a U.S. broker-dealer) to the
trustee a signed letter containing certain representations and agreements
relating to the restrictions on transfer of this security (the form of
which letter can be obtained from the trustee for this security), (4)
outside the United States in an offshore transaction in compliance with
Rule 904 of Regulation S under the Act, (5) pursuant to the exemption from
registration provided by Rule 144 under the Act (if available), or (6)
pursuant to an effective registration statement under the Act, and (C)
acknowledges that it will, and each subsequent holder is required to,
notify any purchaser of a Restricted Note of the resale restrictions set
forth in (B) above.
(v) Such Initial Purchaser and its affiliates or any person acting on
its or their behalf have not engaged and will not engage in any directed
selling efforts within the meaning of Regulation S with respect to the
Restricted Notes or the Guarantees thereof.
(vi) The Restricted Notes offered and sold by such Initial Purchaser
pursuant hereto in reliance on Regulation S have been and will be offered
and sold only in offshore transactions.
(vii) The sale of Restricted Notes offered and sold by such Initial
Purchaser pursuant hereto in reliance on Regulation S is not part of a plan
or scheme to evade the registration provisions of the Act.
(viii) Such Initial Purchaser agrees that it has not offered or sold
and will not offer or sell the Restricted Notes in the United States or to,
or for the benefit or account of, a U.S. Person (other than a distributor),
in each case, as defined in Rule 902 under the Act (1) as part of its
distribution at any time and (2) otherwise until 40 days after the later of
the commencement of the offering of the Restricted Notes pursuant hereto
and the Closing Date, other than in accordance with Regulation S of the Act
or another exemption from the registration requirements of the Act. Such
Initial Purchaser agrees that, during such 40-day distribution compliance
period, it will not cause any
-19-
advertisement with respect to the Restricted Notes (including any
"tombstone" advertisement) to be published in any newspaper or periodical
or posted in any public place and will not issue any circular relating to
the Restricted Notes, except such advertisements as are permitted by and
include the statements required by Regulation S.
(ix) Such Initial Purchaser agrees that, at or prior to confirmation
of a sale of Restricted Notes by it to any distributor, dealer or person
receiving a selling concession, fee or other remuneration during the 40-day
distribution compliance period referred to in Rule 903(c)(2) under the Act,
it will send to such distributor, dealer or person receiving a selling
concession, fee or other remuneration a confirmation or notice to
substantially the following effect:
"The Restricted Notes covered hereby have not been registered under
the U.S. Securities Act of 1933, as amended (the "Securities Act"),
and may not be offered and sold within the United States or to, or for
the account or benefit of, U.S. persons (i) as part of your
distribution at any time or (ii) otherwise until 40 days after the
later of the commencement of the Offering and the Closing Date, except
in either case in accordance with Regulation S under the Securities
Act (or Rule 144A or to an accredited investor (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) in transactions
that are exempt from the registration requirements of the Securities
Act), and in connection with any subsequent sale by you of the
Restricted Notes covered hereby in reliance on Regulation S during the
period referred to above to any distributor, dealer or person
receiving a selling concession, fee or other remuneration, you must
deliver a notice to substantially the foregoing effect. Terms used
above have the meanings assigned to them in Regulation S."
The Initial Purchasers acknowledge that the Company and the Guarantors and,
for purposes of the opinions to be delivered to the Initial Purchasers pursuant
to Section 8 hereof, counsel for the Company and the Guarantors and counsel for
the Initial Purchasers will rely upon the accuracy and truth of the foregoing
representations and hereby consent to such reliance.
5. Indemnification.
(a) The Company and the Guarantors, jointly and severally, agree to
indemnify and hold harmless (i) the Initial Purchasers, (ii) each person, if
any, who controls the Initial Purchasers within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act and (iii) the respective officers,
directors, partners, employees, representatives and agents of the Initial
Purchasers or any controlling person against any and all losses, liabilities,
claims, damages and expenses whatsoever (including but not limited to reasonable
attorneys' fees and any and all expenses whatsoever incurred in investigating,
preparing or defending against any investigation or litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in settlement
of any claim or litigation, provided that such settlement was effected with the
Company's and the Guarantor's written consent in accordance with Section 6(c)
hereof), joint or several, to which they or any of them may become subject under
the Act, the Exchange Act or
-20-
otherwise, insofar as such losses, liabilities, claims, damages or expenses (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Offering
Memorandum (including the documents incorporated by reference therein), or in
any supplement thereto or amendment thereof, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that neither the Company nor any Guarantor will be liable in any such case to
the extent, but only to the extent, that any such loss, liability, claim, damage
or expense arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with information relating to the Initial Purchasers furnished
to the Company and the Guarantors in writing by or on behalf of the Initial
Purchasers expressly for use therein. This indemnity agreement will be in
addition to any liability which the Company and the Guarantors may otherwise
have, including under this Agreement.
(b) The Initial Purchasers, severally and not jointly, agree to indemnify
and hold harmless (i) the Company and the Guarantors, (ii) each person, if any,
who controls the Company or any of the Guarantors within the meaning of Section
15 of the Act or Section 20(a) of the Exchange Act, and (iii) the officers,
directors, partners, employees, representatives and agents of the Company and
the Guarantors, against any losses, liabilities, claims, damages and expenses
whatsoever (including but not limited to reasonable attorneys' fees and any and
all expenses whatsoever incurred in investigating, preparing or defending
against any investigation or litigation, commenced or threatened, or any claim
whatsoever and any and all amounts paid in settlement of any claim or
litigation, provided that such settlement was effected with such Initial
Purchaser's written consent in accordance with Section 6(c) hereof), joint or
several, to which they or any of them may become subject under the Act, the
Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages
or expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Offering Memorandum, or in any amendment thereof or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, in each case to the extent, but only to the extent, that any such
loss, liability, claim, damage or expense arises out of or is based upon any
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with information relating to the
Initial Purchasers furnished to the Company and the Guarantors in writing by or
on behalf of the Initial Purchasers expressly for use therein; provided,
however, that in no case shall the Initial Purchasers be liable or responsible
for any amount in excess of the discounts and commissions received by the
Initial Purchasers, as set forth on the cover page of the Offering Memorandum.
This indemnity will be in addition to any liability which the Initial Purchasers
may otherwise have, including under this Agreement.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify each party against whom indemnification is
to be sought in writing of the commencement thereof (but the failure so to
notify an indemnifying party shall not relieve it from any liability which it
may
-21-
have under this Section 6 except to the extent that it has been prejudiced in
any material respect by such failure or from any liability which it may
otherwise have). In case any such action is brought against any indemnified
party, and it notifies an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent it
may elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof with counsel reasonably satisfactory to such indemnified party.
Notwithstanding the foregoing, the indemnified party or parties shall have the
right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such indemnified party or
parties unless (i) the employment of such counsel shall have been authorized in
writing by the indemnifying parties in connection with the defense of such
action, (ii) the indemnifying parties shall not have employed counsel to take
charge of the defense of such action within a reasonable time after notice of
commencement of the action, or (iii) such indemnified party or parties shall
have reasonably concluded that there may be defenses available to it or them
which are different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying party or parties shall not
have the right to direct the defense of such action on behalf of the indemnified
party or parties with respect to such different defenses), in any of which
events such fees and expenses of counsel shall be borne by the indemnifying
parties; provided, however, that the indemnifying party under subsection (a) or
(b) above shall only be liable for the legal expenses of one counsel (in
addition to any local counsel) for all indemnified parties in each jurisdiction
in which any claim or action is brought. Anything in this subsection to the
contrary notwithstanding, an indemnifying party shall not be liable for any
settlement of any claim or action effected without its prior written consent,
provided that such consent was not unreasonably withheld.
6. Contribution. In order to provide for contribution in circumstances in
which the indemnification provided for in Section 6 is for any reason held to be
unavailable from an indemnifying party or is insufficient to hold harmless a
party indemnified thereunder, the Company and the Guarantors, on the one hand,
and the Initial Purchasers, on the other hand, shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
such indemnification provision (including any investigation, legal and other
expenses reasonably incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claims asserted, but after
deducting in the case of losses, liabilities, claims, damages and expenses
suffered by the Company or any Guarantor, any contribution received by the
Company and the Guarantors from persons, other than the Initial Purchasers, who
may also be liable for contribution, including persons who control the Company
or any of the Guarantors within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act) to which the Company, the Guarantors and the Initial
Purchasers may be subject, in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Guarantors, on the one hand,
and the Initial Purchasers, on the other hand, from the offering of the
Restricted Notes or, if such allocation is not permitted by applicable law or
indemnification is not available as a result of the indemnifying party not
having received notice as provided in Section 6, in such proportion as is
appropriate to reflect not only the relative benefits referred to above but also
the relative fault of the Company and the Guarantors, on the one hand, and the
Initial Purchasers, on the other hand, in connection with the statements or
-22-
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Guarantors, on the one hand, and the
Initial Purchasers, on the other hand, shall be deemed to be in the same
proportion as (i) the total proceeds from the offering of Restricted Notes (net
of discounts and commissions but before deducting expenses) received by the
Company and the Guarantors and (ii) the discounts and commissions received by
the Initial Purchasers, respectively, in each case as set forth on the cover
page of the Offering Memorandum. The relative fault of the Company and the
Guarantors, on the one hand, and of the Initial Purchasers, on the other hand,
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company, any
Guarantor or the Initial Purchasers and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company, the Guarantors and the Initial Purchasers agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Initial Purchasers were treated
as one entity for such purpose) or by any other method of allocation which does
not take into account the equitable considerations referred to above.
Notwithstanding the provisions of this Section 7, (i) in no case shall the
Initial Purchasers be required to contribute any amount in excess of the amount
by which the discounts and commissions applicable to the Restricted Notes
purchased by the Initial Purchasers pursuant to this Agreement exceeds the
amount of any damages which the Initial Purchasers has otherwise been required
to pay by reason of any untrue or alleged untrue statement or omission or
alleged omission and (ii) no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, (A) each person, if any, who
controls the Initial Purchasers within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act and (B) the respective officers, directors,
partners, employees, representatives and agents of the Initial Purchasers or any
controlling person shall have the same rights to contribution as the Initial
Purchasers, and (A) each person, if any, who controls the Company or any
Guarantor within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act and (B) the respective officers, directors, partners, employees,
representatives and agents of the Company and the Guarantors shall have the same
rights to contribution as the Company and the Guarantors, subject in each case
to clauses (i) and (ii) of this Section 7. Any party entitled to contribution
will, promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties under this Section 7, notify such party
or parties from whom contribution may be sought, but the failure to so notify
such party or parties shall not relieve the party or parties from whom
contribution may be sought from any obligation it or they may have under this
Section 7 or otherwise. No party shall be liable for contribution with respect
to any action or claim settled without its prior written consent, provided that
such written consent was not unreasonably withheld. The Initial Purchasers'
obligations to contribute pursuant to this Section 7 are several in proportion
to the respective principal amounts of Restricted Notes purchased by each of the
Initial Purchasers hereunder and not joint.
-23-
7. Conditions of Initial Purchasers' Obligations. The obligations of the
Initial Purchasers to purchase and pay for the Restricted Notes, as provided
herein, shall be subject to the satisfaction of the following conditions:
(a) At the Closing Date, the Initial Purchasers shall have received a
certificate of the Company, executed by each of the Chief Executive Officer and
the Chief Financial Officer of the Company, and a certificate of each Guarantor,
executed by two authorized officers of such Guarantor, dated the date of its
delivery, to the effect that as of the date of such certificate the
representations and warranties of the Company or the Guarantor, as applicable,
set forth in Section 5 hereof are true and correct in all material respects as
of such Closing Date, the obligations of the Company or the Guarantor, as
applicable, to be performed hereunder on or prior thereto have been duly
performed in all material respects, and subsequent to the respective dates of
which information is given in the Offering Memorandum, the Company or Guarantor,
as applicable, and its subsidiaries have not sustained any material loss or
interference with their respective businesses or properties from fire, flood,
hurricane, accident or other calamity, whether or not covered by insurance, or
from any labor dispute or any legal or governmental proceeding, and there has
not been any material adverse change, or any development involving a material
adverse change, in the business prospects, properties, operations, condition
(financial or otherwise), or results of operations of the Company and its
subsidiaries taken as a whole, except in which case as described in or
contemplated by the Offering Memorandum.
(b) At the Closing Date, the Initial Purchasers shall have received (i) the
written opinion of Martha D. Rehm, Esq., General Counsel to the Company, dated
the Closing Date, addressed to the Initial Purchasers, in form and substance
reasonably acceptable to the Initial Purchasers' counsel, (ii) the written
opinion of Cahill Gordon & Reindel, special counsel for the Company, dated the
Closing Date, addressed to the Initial Purchasers, in form and substance
reasonably satisfactory to Initial Purchasers' counsel and (iii) the written
opinion of Arnold & Porter, special counsel for the Company, dated the Closing
Date, addressed to the Initial Purchasers, in form and substance reasonably
satisfactory to Initial Purchasers' counsel.
(c) At the Closing Date, the Initial Purchasers shall have received the
written opinion of Balcomb & Green, P.C., special counsel for the Initial
Purchasers, dated the Closing Date, addressed to the Initial Purchasers, in form
and substance reasonably satisfactory to Initial Purchasers' counsel.
(d) At the time this Agreement is executed and at the Closing Date, the
Initial Purchasers shall have received from Arthur Andersen LLP, independent
public accountants, dated as of the date of this Agreement and as of the Closing
Date, customary comfort letters addressed to the Initial Purchasers and in form
and substance satisfactory to the Initial Purchasers and counsel for the Initial
Purchasers with respect to the financial statements and certain financial
information of the Company and its subsidiaries contained in the Offering
Memorandum and/or incorporated therein by reference.
(e) The Initial Purchasers shall have received an opinion, dated the
Closing Date, in form and substance reasonably satisfactory to the Initial
Purchasers, of Kramer Levin Naftalis
-24-
& Frankel LLP, counsel for the Initial Purchasers, covering such matters as are
customarily covered in such opinions.
(f) Kramer Levin Naftalis & Frankel LLP shall have been furnished with such
documents, in addition to those set forth above, as they may reasonably require
for the purpose of enabling them to review or pass upon the matters referred to
in this Section 8 and in order to evidence the accuracy, completeness or
satisfaction in all material respects of any of the representations, warranties
or conditions herein contained.
(g) Prior to the Closing Date, the Company and the Guarantors shall have
furnished to the Initial Purchasers such further information, certificates and
documents as the Initial Purchasers may reasonably request.
(h) The Company, the Guarantors and the Trustee shall have entered into the
Indenture and the Initial Purchasers shall have received counterparts, conformed
as executed, thereof.
(i) The Company, the Guarantors and the Initial Purchasers shall have
entered into the Registration Rights Agreement and the Initial Purchasers shall
have received counterparts, conformed as executed, thereof.
(j) On or after the date hereof, (i) there shall not have occurred any
downgrading, suspension or withdrawal of, nor shall any notice have been given
of any potential or intended downgrading, suspension or withdrawal of, or of any
review (or of any potential or intended review) for a possible change that does
not indicate the direction of the possible change in, any rating of the Company
or any Guarantor or any securities of the Company or any Guarantor (including,
without limitation, the placing of any of the foregoing ratings on credit watch
with negative or developing implications or under review with an uncertain
direction) by any "nationally recognized statistical rating organization" as
such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there
shall not have occurred any change, nor shall any notice have been given of any
potential or intended change, in the outlook for any rating of the Company or
any Guarantor or any securities of the Company or any Guarantor by any such
rating organization and (iii) no such rating organization shall have given
notice that it has assigned (or is considering assigning) a lower rating to the
Notes than that on which the Notes were marketed.
(k) The Notes shall have been approved for trading on PORTAL.
(l) All opinions, certificates, letters and other documents required by
this Section 8 to be delivered by the Company and the Guarantors will be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to the Initial Purchasers. The Company and the Guarantors
shall furnish the Initial Purchasers with such conformed copies of such
opinions, certificates, letters and other documents as it shall reasonably
request.
8. Initial Purchasers' Information. The Company and the Guarantors
acknowledge that the statements with respect to the offering of the Restricted
Notes set forth in (i) the third sentence of the penultimate paragraph on the
cover page and (ii) the first and last two
-25-
paragraphs in "Private Placement" in the Offering Memorandum constitute the only
information relating to any of the Initial Purchasers furnished to the Company
and the Guarantors in writing by or on behalf of the Initial Purchasers
expressly for use in the Offering Memorandum.
9. Survival of Representations and Agreements. All representations and
warranties, covenants and agreements of the Initial Purchasers, the Company and
the Guarantors contained in this Agreement, including the agreements contained
in Sections 4(f) and 11(d), the indemnity agreements contained in Section 6 and
the contribution agreements contained in Section 7, shall remain operative and
in full force and effect regardless of any investigation made by or on behalf of
the Initial Purchasers, any controlling person thereof, or by or on behalf of
the Company, the Guarantors or any controlling person thereof, and shall survive
delivery of and payment for the Restricted Notes to and by the Initial
Purchasers. The representations contained in Section 5 and the agreements
contained in Sections 4(f), 6, 7 and 11(d) shall survive the termination of this
Agreement, including any termination pursuant to Section 11.
10. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective upon execution and delivery of a
counterpart hereof by each of the parties hereto.
(b) The Initial Purchasers shall have the right to terminate this Agreement
at any time prior to the Closing Date by notice to the Company from the Initial
Purchasers, without liability (other than with respect to Sections 6 and 7) on
the Initial Purchasers' part to the Company or any of the Guarantors if, on or
prior to such date, (i) the Company or any of the Guarantors shall have failed,
refused or been unable to perform in any material respect any agreement on its
part to be performed hereunder, (ii) any other condition to the obligations of
the Initial Purchasers hereunder as provided in Section 8 is not fulfilled when
and as required in any material respect, (iii) in the reasonable judgment of the
Initial Purchasers, any material adverse change shall have occurred since the
respective dates as of which information is given in the Offering Memorandum in
the condition (financial or otherwise), business, prospects, or results of
operations of the Company and its subsidiaries, taken as a whole, other than as
set forth in the Offering Memorandum, or (iv) (A) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange, or the
Nasdaq National Market shall have been suspended or materially limited, or
minimum or maximum prices for trading shall have been established, or maximum
ranges for prices for securities shall have been required, on such exchange or
the Nasdaq National Market, or by such exchange or other regulatory body or
governmental authority having jurisdiction; or (B) a banking moratorium shall
have been declared by federal or state authorities; or (C) there is an outbreak
or escalation of armed hostilities involving the United States on or after the
date hereof, or if there has been a declaration by the United States of a
national emergency or war, the effect of which shall be, in the Initial
Purchasers' judgment, to make it inadvisable or impracticable to proceed with
the offering or delivery of the Restricted Notes on the terms and in the manner
contemplated in the Offering Memorandum; or (D) there shall have occurred such a
material adverse change in the financial markets in the United States or any
other calamity or crisis or materially adverse change in general economic,
political or financial conditions having an effect on the U.S. financial
-26-
markets such as, in the Initial Purchasers' judgment, makes it inadvisable or
impracticable to proceed with the delivery of the Restricted Notes as
contemplated hereby.
(c) Any notice of termination pursuant to this Section 11 shall be by
telephone or facsimile and, in either case, confirmed in writing by letter.
(d) If this Agreement shall be terminated pursuant to any of the provisions
hereof (otherwise than pursuant to clause (iv) of Section 11(b), in which case
each party will be responsible for its own expenses), or if the sale of the
Restricted Notes provided for herein is not consummated because any condition to
the obligations of the Initial Purchasers set forth herein is not satisfied or
because of any refusal, inability or failure on the part of the Company or any
Guarantor to perform any agreement herein or comply with any provision hereof,
the Company and the Guarantors shall reimburse the Initial Purchasers for all
out-of-pocket expenses (including the reasonable fees and expenses of the
Initial Purchasers' counsel), incurred by the Initial Purchasers in connection
herewith.
(e) If on the Closing Date any one or more of the Initial Purchasers shall
fail or refuse to purchase the Restricted Notes which it or they have agreed to
purchase hereunder on such date and the aggregate principal amount of the
Restricted Notes which such defaulting Initial Purchaser or Initial Purchasers,
as the case may be, agreed but failed or refused to purchase is not more than
one-tenth of the aggregate principal amount of the Restricted Notes to be
purchased on such date by all Initial Purchasers, each non-defaulting Initial
Purchaser shall be obligated severally, in the proportion which the principal
amount of the Restricted Notes set forth opposite its name in Schedule II bears
to the aggregate principal amount of the Restricted Notes which all the
non-defaulting Initial Purchasers, as the case may be, have agreed to purchase,
or in such other proportion as Deutsche Banc Alex. Brown Inc. ("Deutsche Bank")
may specify, to purchase the Restricted Notes which such defaulting Initial
Purchaser or Initial Purchasers, as the case may be, agreed but failed or
refused to purchase on such date; provided that in no event shall the aggregate
principal amount of the Restricted Notes which any Initial Purchaser has agreed
to purchase pursuant to Section 3 hereof be increased pursuant to this Section
11 by an amount in excess of one-ninth of such principal amount of the
Restricted Notes without the written consent of such Initial Purchaser. If on
the Closing Date any Initial Purchaser or Initial Purchasers shall fail or
refuse to purchase the Restricted Notes and the aggregate principal amount of
the Restricted Notes with respect to which such default occurs is more than
one-tenth of the aggregate principal amount of the Restricted Notes to be
purchased by all Initial Purchasers and arrangements satisfactory to the Initial
Purchasers and the Company for purchase of such the Restricted Notes are not
made within 48 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Initial Purchaser and the Company.
In any such case which does not result in termination of this Agreement, either
Deutsche Bank or the Company shall have the right to postpone the Closing Date,
but in no event for longer than seven days, in order that the required changes,
if any, in the Offering Memorandum or any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve any defaulting
Initial Purchaser from liability in respect of any default of any such Initial
Purchaser under this Agreement.
-27-
11. Notice. All communications hereunder, except as may be otherwise
specifically provided herein, shall be in writing and, if sent to the Initial
Purchasers shall be mailed, delivered, telecopied and confirmed in writing or
sent by a nationally recognized overnight courier service guaranteeing delivery
on the next business day to Deutsche Banc Alex. Brown Inc., 31 West 52nd Street,
New York, New York 10019, Attention: Leveraged Finance Group, telecopy number:
(646) 324-7467, with a copy to Kramer Levin Naftalis & Frankel LLP, 919 Third
Avenue, New York, New York 10022, Attention: Howard A. Sobel, Esq., telecopy
number: (212) 715-8000; and if sent to the Company and the Guarantors, shall be
mailed, delivered, telecopied and confirmed in writing or sent by a nationally
recognized overnight courier service guaranteeing delivery on the next business
day to Vail Resort, Inc., 137 Benchmark Road, Avon, Colorado 81620, Attention:
Chief Financial Officer, telecopy number: (970) 845-2521, with a copy to Cahill
Gordon & Reindel, 80 Pine Street, New York, New York 10005, Attention: James J.
Clark, Esq., telecopy number: (212) 269-5420.
12. Parties. This Agreement shall inure solely to the benefit of, and shall
be binding upon, the Initial Purchasers, the Company, the Guarantors and the
controlling persons and agents referred to in Sections 6 and 7, and their
respective successors and assigns, and no other person shall have or be
construed to have any legal or equitable right, remedy or claim under or in
respect of or by virtue of this Agreement or any provision herein contained. The
term "successors and assigns" shall not include a purchaser, in its capacity as
such, of Notes from the Initial Purchasers.
13. Construction. This Agreement shall be construed in accordance with the
internal laws of the State of New York.
14. Captions. The captions included in this Agreement are included solely
for convenience of reference and are not to be considered a part of this
Agreement.
15. Counterparts. This Agreement may be executed in various counterparts
which together shall constitute one and the same instrument.
-28-
If the foregoing correctly sets forth the understanding among the Initial
Purchasers, the Company and the Guarantors please so indicate in the space
provided below for that purpose, whereupon this letter shall constitute a
binding agreement among us.
Very truly yours,
VAIL RESORTS, INC.
By: /s/ Martha D. Rehm
------------------------------------
Name: Martha D. Rehm
Title: Senior Vice President
[Purchase Agreement Signature Page for Company]
-29-
BEAVER CREEK ASSOCIATES, INC.
BEAVER CREEK CONSULTANTS, INC.
BEAVER CREEK FOOD SERVICES, INC.
BRECKENRIDGE RESORT PROPERTIES, INC.
COMPLETE TELECOMMUNICATIONS, INC.
GHTV, INC.
GILLETT BROADCASTING, INC.
GRAND TETON LODGE COMPANY
JACKSON HOLE GOLF AND TENNIS CLUB, INC.
JHL&S LLC
KEYSTONE CONFERENCE SERVICES, INC.
KEYSTONE DEVELOPMENT SALES, INC.
KEYSTONE FOOD AND BEVERAGE COMPANY
KEYSTONE RESORT PROPERTY MANAGEMENT COMPANY
LARKSPUR RESTAURANT & BAR, LLC
LODGE PROPERTIES, INC.
LODGE REALTY, INC.
PROPERTY MANAGEMENT ACQUISITION CORP., INC.
TETON HOSPITALITY LLC
TETON HOSPITALITY SERVICES, INC.
THE VAIL CORPORATION
THE VILLAGE AT BRECKENRIDGE ACQUISITION CORP., INC.
VAIL ASSOCIATES CONSULTANTS, INC.
VAIL ASSOCIATES HOLDINGS, LTD.
VAIL ASSOCIATES MANAGEMENT COMPANY
VAIL ASSOCIATES REAL ESTATE, INC.
VAIL FOOD SERVICES, INC.
VAIL HOLDINGS, INC.
VAIL RESORTS DEVELOPMENT COMPANY
VAIL SUMMIT RESORTS, INC.
VAIL TRADEMARKS, INC.
VAIL/ARROWHEAD, INC.
VAIL/BATTLE MOUNTAIN, INC.
VAIL/BEAVER CREEK RESORT PROPERTIES, INC.
VAMHC, INC.
VAIL RR, INC.
VA RANCHO MIRAGE I, INC.
VA RANCHO MIRAGE II, INC.
Each by its authorized officer:
By: /s/ Martha D. Rehm
--------------------------------------------------
Name: Martha D. Rehm
Title: Senior Vice President of each Guarantor
listed above
[Purchase Agreement Signature Page for Guarantors]
-30-
Accepted and agreed to as of the date first above written:
DEUTSCHE BANC ALEX. BROWN INC.
By: /s/ Scott Tolchin
--------------------------------
Name: Scott Tolchin
Title: Managing Director
BANC OF AMERICA SECURITIES LLC
By: /s/ Diane Scott
--------------------------------
Name: Diane Scott
Title: Vice President
BEAR, STEARNS & CO. INC.
By: /s/ John Kilgallon
--------------------------------
Name: John Kilgallon
Title: SMD
CIBC WORLD MARKETS CORP.
By: /s/ Brian Gerson
--------------------------------
Name: Brian Gerson
Title: Managing Director
FLEET SECURITIES, INC.
By: /s/ Brad Stewart
--------------------------------
Name: Brad Stewart
Title: Vice President
[Purchase Agreement Signature Page for Initial Purchasers]
-31-
SCHEDULE I
Guarantors
Beaver Creek Associates, Inc.
Beaver Creek Consultants, Inc.
Beaver Creek Food Services, Inc.
Breckenridge Resort Properties, Inc.
Complete Telecommunications, Inc.
GHTV, Inc.
Gillett Broadcasting, Inc.
Grand Teton Lodge Company
Jackson Hole Golf and Tennis Club, Inc.
JHL&S LLC
Keystone Conference Services, Inc.
Keystone Development Sales, Inc.
Keystone Food and Beverage Company
Keystone Resort Property Management Company
Larkspur Restaurant & Bar, LLC
Lodge Properties, Inc.
Lodge Realty, Inc.
Property Management Acquisition Corp., Inc.
Teton Hospitality LLC
Teton Hospitality Services, Inc.
The Vail Corporation
The Village at Breckenridge Acquisition Corp., Inc.
Vail Associates Consultants, Inc.
Vail Associates Holdings, Ltd.
Vail Associates Management Company
Vail Associates Real Estate, Inc.
Vail Food Services, Inc.
Vail Holdings, Inc.
Vail Resorts Development Company
Vail Summit Resorts, Inc.
Vail Trademarks, Inc.
Vail/Arrowhead, Inc.
Vail/Battle Mountain, Inc.
Vail/Beaver Creek Resort Properties, Inc.
VAMHC, Inc.
Vail RR, Inc.
VA Rancho Mirage I, Inc.
VA Rancho Mirage II, Inc.
-32-
SCHEDULE II
Initial Purchasers
Initial Purchasers Principal Amount
Deutsche Banc Alex. Brown Inc....................................72,000,000
Banc of America Securities LLC...................................40,000,000
Bear, Stearns & Co. Inc..........................................16,000,000
CIBC World Markets Corp..........................................16,000,000
Fleet Securities, Inc............................................16,000,000
Total ................................................$160,000,000
===========
-33-
SCHEDULE III
Material Domestic Subsidiaries of the Company(1)
Owned Directly by Vail Resorts, Inc.
GHTV, Inc.
Gillett Broadcasting, Inc.
Vail Holdings, Inc.
Owned Directly by Vail Holdings, Inc.
The Vail Corporation
Owned Directly by The Vail Corporation
Beaver Creek Associates, Inc.
Beaver Creek Consultants, Inc.
Lodge Properties, Inc.
SSI Venture, LLC
Vail Associates Investments, Inc.
Vail Food Services, Inc.
Vail Resorts Development Company
Vail Summit Resorts, Inc.
Vail Trademarks, Inc.
Vail/Arrowhead, Inc.
Vail/Beaver Creek Resort Properties, Inc.
Complete Telecommunications, Inc.
Forest Ridge Holdings, Inc.
Grand Teton Lodge Company
Larkspur Restaurant & Bar, LLC
Resort Technology Partners, LLC
Teton Hospitality Services, Inc.
VAMHC, Inc.
VA Rancho Mirage I, Inc.
VA Rancho Mirage II, Inc.
Avon Partners II, LLC
Eagle Park Reservoir Company
Vail RR, Inc.
- ----------
1 Those owned 50% or greater
-34-
Owned Directly by Beaver Creek Associates, Inc.
Beaver Creek Food Services, Inc.
Owned Directly by Beaver Creek Food Services, Inc.
Boulder/Beaver, LLC
Owned Directly by Grand Teton Lodge Company
Colter Bay Corporation
Gros Ventre Utility Company
Jackson Hole Golf and Tennis Club, Inc.
Jackson Lake Lodge Corporation
Jenny Lake Lodge, Inc.
Owned Directly by Lodge Properties, Inc.
Lodge Realty, Inc.
Owned Directly by Resort Technology Partners, LLC
RT Partners, Inc.
Owned Directly by Teton Hospitality Services, Inc.
Teton Hospitality LLC
Owned Directly by Teton Hospitality LLC
JHL&S LLC
Owned Directly by Vail/Arrowhead, Inc. and Vail Summit Resorts, Inc.
VR Holdings, Inc.
Owned Directly by VR Holdings, Inc.
Mountain Thunder, Inc.
Owned Directly by Vail Resorts Development Company
Breckenridge Resort Properties, Inc.
-35-
Vail Associates Consultants, Inc.
Vail Associates Holdings, Ltd.
Vail Associates Management Company
Vail Associates Real Estate, Inc.
Owned Directly by Vail Associates Real Estate, Inc.
Slifer Smith & Frampton/Vail Associates Real Estate, LLC
Vail/Battle Mountain, Inc.
Owned Directly by Vail Summit Resorts, Inc.
Breckenridge Terrace, LLC
Tenderfoot Seasonal Housing, LLC
Keystone Conference Services, Inc.
Keystone Development Sales, Inc.
Keystone Food and Beverage Company
Keystone/Intrawest, LLC
Keystone Resort Property Management Company
Property Management Acquisition Corp., Inc.
The Village at Breckenridge Acquisition Corp., Inc.
Owned Directly by Vail RR, Inc.
Rockresorts International, LLC
Owned Directly by Rockresorts International, LLC
Rockresorts LLC
Rockresorts Cheeca, LLC
Rockresorts Equinox, Inc.
Rockresorts LaPosada, LLC
Rockresorts Casa Madrona, LLC
Rockresorts Rosario, LLC
Owned Directly by VA Rancho Mirage I, Inc. and by
VA Rancho Mirage II, Inc.
VA Rancho Mirage Resort L.P.
-36-
SCHEDULE IV
Subsidiaries and Other Equity Interests of the Company
Owned Directly by Vail Resorts, Inc.
- --------------------------------------------------------------------------------
Subsidiary % Owned State of Qualified to do
Incorporation Business in
- --------------------------------------------------------------------------------
GHTV, Inc. 100% Delaware California
- --------------------------------------------------------------------------------
Gillett Broadcasting, Inc. 100% Delaware --
- --------------------------------------------------------------------------------
Vail Holdings, Inc. 100% Colorado --
- --------------------------------------------------------------------------------
Owned Directly by Vail Holdings, Inc.
- --------------------------------------------------------------------------------
Subsidiary % Owned State of Qualified to do
Incorporation Business in
- --------------------------------------------------------------------------------
The Vail Corporation 100% Colorado --
- --------------------------------------------------------------------------------
Owned Directly by The Vail Corporation
- --------------------------------------------------------------------------------
Subsidiary % Owned State of Qualified to do
Incorporation Business in
- --------------------------------------------------------------------------------
Avon Partners II, LLC 50% Colorado --
- --------------------------------------------------------------------------------
Beaver Creek Associates, Inc. 100% Colorado --
- --------------------------------------------------------------------------------
Beaver Creek Consultants, Inc. 100% Colorado --
- --------------------------------------------------------------------------------
BC Housing, LLC 49% Colorado --
- --------------------------------------------------------------------------------
Complete Telecommunications, Inc. 100% Colorado --
- --------------------------------------------------------------------------------
Eagle Park Reservoir Company 55% Colorado --
- --------------------------------------------------------------------------------
Eclipse Television and Sports 25% Colorado --
Marketing, LLC
- --------------------------------------------------------------------------------
Forest Ridge Holdings, Inc. 100% Colorado --
- --------------------------------------------------------------------------------
Grand Teton Lodge Company 100% Wyoming --
- --------------------------------------------------------------------------------
Larkspur Restaurant & Bar, LLC 83% Colorado --
- --------------------------------------------------------------------------------
Lodge Properties, Inc. 100% Colorado --
- --------------------------------------------------------------------------------
Lowther Limited 49% Republic of --
Ireland
- --------------------------------------------------------------------------------
Resort Technology Partners, LLC 51% Colorado --
- --------------------------------------------------------------------------------
SSI Venture, LLC 52% Colorado --
- --------------------------------------------------------------------------------
The Tarnes at BC, LLC 31% Colorado --
- --------------------------------------------------------------------------------
-37-
Teton Hospitality Services, Inc. 100% Wyoming --
- --------------------------------------------------------------------------------
Vail Associates Investments, Inc. 100% Colorado --
- --------------------------------------------------------------------------------
Vail Food Services, Inc. 100% Colorado --
- --------------------------------------------------------------------------------
Vail Resorts Development Company 100% Colorado Wyoming
- --------------------------------------------------------------------------------
Vail Summit Resorts, Inc. 100% Colorado --
- --------------------------------------------------------------------------------
Vail Trademarks, Inc. 100% Colorado --
- --------------------------------------------------------------------------------
Vail/Arrowhead, Inc. 100% Colorado --
- --------------------------------------------------------------------------------
Vail/Beaver Creek Resort 100% Colorado --
Properties, Inc.
- --------------------------------------------------------------------------------
VAMHC, Inc. 100% Colorado --
- --------------------------------------------------------------------------------
Vail RR, Inc. 100% Colorado --
- --------------------------------------------------------------------------------
VA Rancho Mirage I, Inc. 100% Colorado --
- --------------------------------------------------------------------------------
VA Rancho Mirage II, Inc. 100% Colorado --
- --------------------------------------------------------------------------------
Owned Directly by Beaver Creek Associates, Inc.
- --------------------------------------------------------------------------------
Subsidiary % Owned State of Qualified to do
Incorporation Business in
- --------------------------------------------------------------------------------
Beaver Creek Food Services, Inc. 100% Colorado --
- --------------------------------------------------------------------------------
Owned Directly by Beaver Creek Food Services, Inc.
- --------------------------------------------------------------------------------
Subsidiary % Owned State of Qualified to do
Incorporation Business in
- --------------------------------------------------------------------------------
Boulder/Beaver, LLC 97% Colorado --
- --------------------------------------------------------------------------------
-38-
Owned Directly by Grand Teton Lodge Company
- --------------------------------------------------------------------------------
Subsidiary % Owned State of Qualified to do
Incorporation Business in
- --------------------------------------------------------------------------------
Colter Bay Corporation 100% Wyoming --
- --------------------------------------------------------------------------------
Gros Ventre Utility Company 100% Wyoming --
- --------------------------------------------------------------------------------
Jackson Hole Golf and Tennis Club, 100% Wyoming --
Inc.
- --------------------------------------------------------------------------------
Jackson Lake Lodge Corporation 100% Wyoming --
- --------------------------------------------------------------------------------
Jenny Lake Lodge, Inc. 100% Wyoming --
- --------------------------------------------------------------------------------
Owned Directly by Lodge Properties, Inc.
- --------------------------------------------------------------------------------
Subsidiary % Owned State of Qualified to do
Incorporation Business in
- --------------------------------------------------------------------------------
Lodge Realty, Inc. 100% Colorado --
- --------------------------------------------------------------------------------
Owned Directly by Resort Technology Partners, LLC
- --------------------------------------------------------------------------------
Subsidiary % Owned State of Qualified to do
Incorporation Business in
- ------------------------------------------------------------------------------
RT Partners, Inc. 100% Delaware Colorado
- ------------------------------------------------------------------------------
Owned Directly by Teton Hospitality Services, Inc.
- --------------------------------------------------------------------------------
Subsidiary % Owned State of Qualified to do
Incorporation Business in
- -------------------------------------------------------------------------------
Teton Hospitality LLC 100% Wyoming --
- -------------------------------------------------------------------------------
Owned Directly by Teton Hospitality LLC
- --------------------------------------------------------------------------------
Subsidiary % Owned State of Qualified to do
Incorporation Business in
- ------------------------------------------------------------------------------
JHL&S LLC 51% Wyoming --
- -----------------------------------------------------------------------------
Owned Directly by Vail/Arrowhead, Inc. and Vail Summit Resorts, Inc.
- --------------------------------------------------------------------------------
Subsidiary % Owned State of Qualified to do
Incorporation Business in
- -------------------------------------------------------------------------------
VR Holdings, Inc. 100% Colorado --
- -------------------------------------------------------------------------------
Owned Directly by VR Holdings, Inc.
- --------------------------------------------------------------------------------
Subsidiary % Owned State of Qualified to do
Incorporation Business in
- --------------------------------------------------------------------------------
Bachelor Gulch Resort LLC 49% Colorado --
- --------------------------------------------------------------------------------
Mountain Thunder, Inc. 100% Colorado --
- --------------------------------------------------------------------------------
-39-
Owned Directly by Vail Resorts Development Company
- --------------------------------------------------------------------------------
Subsidiary % Owned State of Qualified to do
Incorporation Business in
- --------------------------------------------------------------------------------
Breckenridge Resort Properties, Inc. 100% Colorado --
- --------------------------------------------------------------------------------
Vail Associates Consultants, Inc. 100% Colorado --
- --------------------------------------------------------------------------------
Vail Associates Holdings, Ltd. 100% Colorado --
- --------------------------------------------------------------------------------
Vail Associates Management Company 100% Colorado --
- --------------------------------------------------------------------------------
Vail Associates Real Estate, Inc. 100% Colorado --
- --------------------------------------------------------------------------------
Owned Directly by Vail Associates Real Estate, Inc.
- --------------------------------------------------------------------------------
Subsidiary % Owned State of Qualified to do
Incorporation Business in
- --------------------------------------------------------------------------------
Slifer, Smith & Frampton/Vail 50% Colorado --
Associates Real Estate, LLC
- --------------------------------------------------------------------------------
Vail/Battle Mountain, Inc. 100% Colorado --
- --------------------------------------------------------------------------------
Owned Directly by Vail Summit Resorts, Inc.
- --------------------------------------------------------------------------------
Subsidiary % Owned State of Qualified to do
Incorporation Business in
- --------------------------------------------------------------------------------
Breckenridge Terrace, LLC 50% Colorado --
- --------------------------------------------------------------------------------
Clinton Ditch and Reservoir Company 43% Colorado --
- --------------------------------------------------------------------------------
Keystone Conference Services, Inc. 100% Colorado --
- --------------------------------------------------------------------------------
Keystone Development Sales, Inc. 100% Colorado --
- --------------------------------------------------------------------------------
Keystone Food and Beverage Company 100% Colorado --
- --------------------------------------------------------------------------------
Keystone/Intrawest, LLC 50% Delaware --
- --------------------------------------------------------------------------------
Keystone Resort Property Management 100% Colorado --
Company
- --------------------------------------------------------------------------------
Tenderfoot Seasonal Housing, LLC 50% Colorado --
- --------------------------------------------------------------------------------
Property Management Acquisition 100% Tennessee Colorado
Corp., Inc.
- --------------------------------------------------------------------------------
The Village at Breckenridge 100% Tennessee Colorado
Acquisition Corp., Inc.
- --------------------------------------------------------------------------------
-40-
Owned Directly by Vail RR, Inc.
- -------------------------------------------------------------------------------
Subsidiary % Owned State of Qualified to do
Incorporation Business in
- --------------------------------------------------------------------------------
Rockresorts International, LLC 100% Delaware California,
(Class A) Colorado, Florida,
New Mexico,
Vermont,
Washington
- --------------------------------------------------------------------------------
Owned Directly by Rockresorts International, LLC
- --------------------------------------------------------------------------------
Subsidiary % Owned State of Qualified to do
Incorporation Business in
- --------------------------------------------------------------------------------
Rockresorts LLC 100% Delaware --
- --------------------------------------------------------------------------------
Rockresorts Cheeca, LLC 100% Delaware Florida
- --------------------------------------------------------------------------------
Rockresorts Equinox, Inc. 100% Vermont --
- --------------------------------------------------------------------------------
Rockresorts LaPosada, LLC 100% Delaware New Mexico
- --------------------------------------------------------------------------------
Rockresorts Casa Madrona, LLC 100% Delaware California
- --------------------------------------------------------------------------------
Rockresorts Rosario, LLC 100% Delaware Washington
- --------------------------------------------------------------------------------
Owned Directly by VA Rancho Mirage I, Inc. and VA Rancho Mirage II, Inc.
- --------------------------------------------------------------------------------
Subsidiary % Owned State of Qualified to do
Incorporation Business in
- --------------------------------------------------------------------------------
VA Rancho Mirage Resort, L.P. 100% Delaware California
- --------------------------------------------------------------------------------
-41-
Exhibit 4.2
EXECUTION COPY
VAIL RESORTS, INC.,
as Issuer
THE GUARANTORS NAMED HEREIN,
as Guarantors
THE BANK OF NEW YORK,
as Trustee
8 3/4% SENIOR SUBORDINATED NOTES DUE 2009
INDENTURE
Dated as of November 21, 2001
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE ............... 1
SECTION 1.01. Definitions ................................................. 1
SECTION 1.02. Other Definitions ...........................................19
SECTION 1.03. Incorporation by Reference of Trust Indenture Act ...........19
SECTION 1.04. Rules of Construction .......................................20
SECTION 1.05. Compliance Certificates and Opinions ........................20
SECTION 1.06. Form of Documents Delivered to Trustee ......................21
SECTION 1.07. Acts of Holders .............................................21
ARTICLE 2 THE NOTES ................................................23
SECTION 2.01. Form and Dating .............................................23
SECTION 2.02. Execution and Authentication ................................24
SECTION 2.03. Registrar and Paying Agent ..................................24
SECTION 2.04. Paying Agent to Hold Assets in Trust ........................25
SECTION 2.05. Holder Lists ................................................25
SECTION 2.06. Transfer and Exchange .......................................25
SECTION 2.07. Replacement Notes ...........................................39
SECTION 2.08. Outstanding Notes ...........................................39
SECTION 2.09. Treasury Notes ..............................................40
SECTION 2.10. Temporary Notes .............................................40
SECTION 2.11. Cancellation ................................................40
SECTION 2.12. Defaulted Interest ..........................................40
SECTION 2.13. CUSIP Number ................................................41
SECTION 2.14. Deposit of Moneys ...........................................41
SECTION 2.15. Issuance of Additional Notes ................................41
ARTICLE 3 REDEMPTION AND OFFERS TO PURCHASE ........................42
SECTION 3.01. Applicability of Article ....................................42
SECTION 3.02. Election to Redeem; Notice to Trustee .......................42
SECTION 3.03. Selection of Notes to Be Redeemed ...........................42
SECTION 3.04. Notice of Redemption ........................................43
SECTION 3.05. Deposit of Redemption Price .................................44
SECTION 3.06. Notes Payable on Redemption Date ............................44
SECTION 3.07. Notes Redeemed in Part ......................................44
SECTION 3.08. Optional Redemption .........................................45
SECTION 3.09. Mandatory Redemption ........................................45
SECTION 3.10. Offer to Purchase by Application of Excess Proceeds .........45
ARTICLE 4 COVENANTS ................................................47
SECTION 4.01. Payment of Notes ............................................47
SECTION 4.02. Maintenance of Office or Agency .............................48
SECTION 4.03. Money for Security Payments to be Held in Trust .............48
SECTION 4.04. Reports .....................................................50
SECTION 4.05. Compliance Certificate ......................................50
SECTION 4.06. Taxes .......................................................51
SECTION 4.07. Stay, Extension and Usury Laws ..............................51
-i-
Page
----
SECTION 4.08. Corporate Existence; Maintenance of Properties and Insurance .51
SECTION 4.09. Limitation on the Incurrence of Indebtedness and Issuance
of Preferred Stock .........................................52
SECTION 4.10. Limitation on Restricted Payments ............................54
SECTION 4.11. Limitation on Liens ..........................................57
SECTION 4.12. Limitation on Transactions with Affiliates ...................57
SECTION 4.13. Limitation on Dividend and Other Payment Restrictions
Affecting Subsidiaries .....................................58
SECTION 4.14. Limitation on Layering Debt ..................................59
SECTION 4.15. Payments for Consent .........................................59
SECTION 4.16. Asset Sales ..................................................59
SECTION 4.17. Offer to Repurchase Upon Change of Control ...................60
SECTION 4.18. Additional Subsidiary Guarantees .............................62
ARTICLE 5 SUCCESSORS ................................................63
SECTION 5.01. Limitation on Merger, Consolidation or Sale of Assets ........63
SECTION 5.02. Successor Person Substituted .................................63
ARTICLE 6 DEFAULTS AND REMEDIES .....................................64
SECTION 6.01. Events of Default ............................................64
SECTION 6.02. Acceleration of Maturity .....................................66
SECTION 6.03. Other Remedies ...............................................66
SECTION 6.04. Waiver of Past Defaults ......................................66
SECTION 6.05. Control by Majority ..........................................67
SECTION 6.06. Limitation on Suits ..........................................67
SECTION 6.07. Rights of Holders to Receive Payment .........................67
SECTION 6.08. Collection Suit by Trustee ...................................68
SECTION 6.09. Trustee May File Proofs of Claim .............................68
SECTION 6.10. Priorities ...................................................68
SECTION 6.11. Undertaking for Costs ........................................69
ARTICLE 7 TRUSTEE ...................................................69
SECTION 7.01. Duties of Trustee ............................................69
SECTION 7.02. Rights of Trustee ............................................70
SECTION 7.03. Individual Rights of Trustee .................................72
SECTION 7.04. Trustee's Disclaimer .........................................72
SECTION 7.05. Notice of Defaults ...........................................72
SECTION 7.06. Reports by Trustee to Holders of Notes .......................72
SECTION 7.07. Compensation and Indemnity ...................................72
SECTION 7.08. Replacement of Trustee .......................................74
SECTION 7.09. Successor Trustee by Merger, etc. ............................75
SECTION 7.10. Eligibility; Disqualification ................................75
SECTION 7.11. Preferential Collection of Claims Against Company ............75
ARTICLE 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE ..................76
SECTION 8.01. Option to Effect Legal Defeasance or Covenant Defeasance .....76
SECTION 8.02. Legal Defeasance and Discharge ...............................76
SECTION 8.03. Covenant Defeasance ..........................................76
-ii-
Page
----
SECTION 8.04. Conditions to Legal Defeasance or Covenant Defeasance ........77
SECTION 8.05. Deposited Money and Government Securities to be Held in
Trust; Other Miscellaneous Provisions ......................78
SECTION 8.06. Repayment to Company .........................................79
SECTION 8.07. Reinstatement ................................................79
ARTICLE 9 AMENDMENTS ................................................79
SECTION 9.01. Without Consent of Holders ...................................79
SECTION 9.02. With Consent of Holders ......................................80
SECTION 9.03. Compliance with Trust Indenture Act ..........................81
SECTION 9.04. Revocation and Effect of Consents ............................82
SECTION 9.05. Notation on or Exchange of Notes .............................82
SECTION 9.06. Trustee to Sign Amendments, etc. .............................82
ARTICLE 10 SUBORDINATION .............................................82
SECTION 10.01. Agreement to Subordinate ....................................82
SECTION 10.02. Liquidation; Dissolution; Bankruptcy ........................83
SECTION 10.03. Default on Designated Senior Debt ...........................83
SECTION 10.04. Acceleration of Notes .......................................84
SECTION 10.05. When Distribution Must be Paid Over .........................84
SECTION 10.06. Notice by Company ...........................................85
SECTION 10.07. Subrogation .................................................85
SECTION 10.08. Relative Rights .............................................85
SECTION 10.09. Subordination May Not be Impaired by Company ................86
SECTION 10.10. Distribution or Notice to Representative ....................86
SECTION 10.11. Rights of Trustee and Paying Agent ..........................86
SECTION 10.12. Authorization to Effect Subordination .......................87
ARTICLE 11 SATISFACTION AND DISCHARGE ................................87
SECTION 11.01. Satisfaction and Discharge of Indenture .....................87
SECTION 11.02. Application of Trust Money ..................................88
ARTICLE 12 SUBSIDIARY GUARANTEES .....................................88
SECTION 12.01. Subsidiary Guarantee ........................................88
SECTION 12.02. Obligation of the Guarantors Unconditional ..................88
SECTION 12.03. Waiver Relating to Subsidiary Guarantees ....................89
SECTION 12.04. Subordination of Subsidiary Guarantees ......................89
SECTION 12.05. Guarantors May Consolidate, etc., on Certain Terms ..........90
SECTION 12.06. Release of Subsidiary Guarantee .............................90
SECTION 12.07. Contribution of Guarantors ..................................91
SECTION 12.08. Reinstatement of Subsidiary Guarantees ......................91
ARTICLE 13 MISCELLANEOUS .............................................91
SECTION 13.01. Trust Indenture Act Controls ................................91
SECTION 13.02. Notices .....................................................92
SECTION 13.03. Communication by Holders with Other Holders .................93
SECTION 13.04. Certificate and Opinion as to Conditions Precedent ..........93
SECTION 13.05. Rules by Trustee and Agents .................................93
SECTION 13.06. Legal Holidays ..............................................93
-iii-
Page
----
SECTION 13.07. No Personal Liability of Directors, Officers, Employees,
Incorporators and Stockholders ............................93
SECTION 13.08. Governing Law; Submission to Jurisdiction ...................94
SECTION 13.09. No Adverse Interpretation of Other Agreements ...............94
SECTION 13.10. Successors and Assigns ......................................94
SECTION 13.11. Severability ................................................94
SECTION 13.12. Counterpart Originals .......................................94
SECTION 13.13. Table of Contents, Headings, etc. ...........................94
EXHIBITS
Exhibit A Form of Note
Exhibit B Form of Certificate of Transfer
Exhibit C Form of Certificate of Exchange
Exhibit D Form of Certificate from Acquiring Institutional
Accredited Investor
-iv-
CROSS-REFERENCE TABLE*
Trust Indenture Act Section Indenture Section
310(a)(1) ............................................................. 7.10
(a)(2) ............................................................. 7.10
(a)(3) ............................................................. N.A.
(a)(4) ............................................................. N.A.
(a)(5) ............................................................. 7.10
(b) .......................................................... 7.08, 7.10
(c) ................................................................ N.A.
311(a) ................................................................ 7.11
(b) ................................................................ 7.11
(c) ................................................................ N.A.
312(a) ................................................................ 2.05
(b) ................................................................13.03
(c) ................................................................13.03
313(a) ................................................................ 7.06
(b)(1) ............................................................. N.A.
(b)(2) ....................................................... 7.06; 7.07
(c) ................................................................ 7.06
(d) ................................................................ 7.06
314(a) .......................................................... 4.04, 4.05
(b) ................................................................ N.A.
(c)(1) .............................................................13.04
(c)(2) .............................................................13.04
(c)(3) ............................................................. N.A.
(d) ................................................................ N.A.
(e) ................................................................ 1.05
(f) ................................................................ N.A.
315(a) ................................................................ 7.01
(b) .......................................................... 7.05;13.02
(c) ................................................................ 7.01
(d) ................................................................ 7.01
(e) ................................................................ 6.11
316(a)(last sentence) ................................................. 2.09
(a)(1)(A) .......................................................... 6.05
(a)(1)(B) .......................................................... 6.04
(a)(2) ............................................................. N.A.
(b) ................................................................ 6.07
(c) ................................................................ 1.07
317(a)(1) ............................................................. 6.08
(a)(2) ............................................................. 6.09
(b) ................................................................ 2.04
318(a) ................................................................13.01
(b) ................................................................ N.A.
(c) ................................................................13.01
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
-v-
INDENTURE, dated as of November 21, 2001, among VAIL RESORTS, INC., a
Delaware corporation (the "Company"), as Issuer, the Guarantors named on the
signature pages hereto, as Guarantors, and The Bank of New York, a New York
banking corporation, as trustee (the "Trustee").
The Company, the Guarantors and the Trustee agree as follows for the
benefit of each other and for the equal and ratable benefit of the Holders of
the 8 3/4% Senior Subordinated Notes due 2009 of the Company (the "Notes").
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions
"144A Global Note" means a global note substantially in the form of Exhibit
A hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with or on behalf of, and registered in the name of, the Depositary or
its nominee that will be issued in a denomination equal to the initial
outstanding principal amount of the Notes sold in reliance on Rule 144A.
"Acquired Debt" means, with respect to any specified Person, (i)
Indebtedness or preferred stock of any other Person existing at the time such
other Person is merged with or into or became a Subsidiary of such specified
Person, including, without limitation, Indebtedness or preferred stock incurred
in connection with, or in contemplation of, such other Person merging with or
into or becoming a Subsidiary of such specified Person, and (ii) Indebtedness
secured by a Lien encumbering any asset acquired by such specified Person.
"Additional Notes" means, subject to the Company's compliance with Section
4.09 hereof, 8 3/4% Senior Subordinated Notes due 2009 issued from time to time
after November 21, 2001, under the terms of this Indenture (other than those
issued pursuant to Sections 2.06, 2.07, 2.10, 3.07, 3.10, 4.17 or 9.05 of this
Indenture and other than Exchange Notes issued pursuant to an Exchange Offer for
other Notes outstanding under this Indenture).
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise.
"Agent" means any Registrar or Paying Agent.
"Agent Members" means members of, or participants in, the Depositary.
"Applicable Procedures" means, with respect to any transfer or exchange of
or for beneficial interest in any Global Note, the rule and regulations and
procedures of the Depositary that apply to such transfer or exchange.
"Apollo" means Apollo Ski Partners, an indirect subsidiary of Apollo
Advisors, L.P., a Delaware limited partnership.
"Asset Sale" means (i) the sale, lease, conveyance or other disposition
(collectively, "dispositions") of any assets or rights (including, without
limitation, by way of a Sale and Leaseback Transaction), other than dispositions
of inventory or sales or leases of real estate constituting Real Estate Held for
Sale in the ordinary course of business, and (ii) the issuance of Equity
Interests by any Restricted Subsidiary or the disposition by the Company or a
Restricted Subsidiary of Equity Interests in any of the Company's Restricted
Subsidiaries (other than directors' qualifying shares or shares required by
applicable law to be held by a Person other than the Company or a Restricted
Subsidiary of the Company), in the case of either clause (i) or (ii), whether in
a single transaction or a series of related transactions (a) that have a fair
market value in excess of $3.0 million or (b) for net proceeds in excess of $3.0
million. Notwithstanding the foregoing, the following will be deemed not to be
Asset Sales: (i) a transfer of assets by the Company to a Restricted Subsidiary
or by a Restricted Subsidiary to the Company or to another Restricted
Subsidiary; (ii) an issuance of Equity Interests by a Restricted Subsidiary to
the Company or to another Restricted Subsidiary; (iii) a Permitted Investment or
Restricted Payment that is permitted by Section 4.10 hereof; (iv) a disposition
of Cash Equivalents solely for cash or other Cash Equivalents; (v) a disposition
in the ordinary course of business of used, worn-out, obsolete, damaged or
replaced equipment; (vi) the grant of licenses to third parties in respect of
intellectual property in the ordinary course of business of the Company or any
of its Restricted Subsidiaries, as applicable; (vii) any disposition of
properties or assets that is governed by Section 4.17 hereof or Section 5.01
hereof; and (viii) the granting or incurrence of any Permitted Lien.
"Bankruptcy Law" means Title 11, U.S. Code or any similar foreign, federal
or state law for the relief of debtors, as amended.
"Board of Directors" means, with respect to any Person, the board of
directors of such Person, or any duly authorized committee of such board of
directors.
"Board Resolution" means a duly adopted resolution of the Board of
Directors of the Company in full force and effect at the time of determination
and certified as such by the Secretary or an Assistant Secretary of the Company
and delivered to the Trustee.
"Broker-Dealer" has the meaning set forth in the Registration Rights
Agreement.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a day on which banking institutions in The City of New York are
authorized or obligated by law, regulation or executive order to close.
"Capital Lease Obligation" means, at the time any determination thereof is
to be made, the amount of the liability in respect of a capital lease that would
at such time be required to be capitalized on a balance sheet in accordance with
GAAP.
-2-
"Capital Stock" means (i) in the case of a corporation, corporate stock,
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, (iii) in the case of a partnership or limited liability
company, partnership or membership interests (whether general or limited) and
(iv) any other interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of assets of, the
issuing Person.
"Cash Equivalents" means (a) marketable obligations issued or
unconditionally guaranteed by the U.S. or issued by any of its agencies and
backed by the full faith and credit of the U.S., in each case maturing within
one year from the date of acquisition; (b) short-term investment grade domestic
and eurodollar certificates of deposit or time deposits that are fully insured
by the Federal Deposit Insurance Corporation or are issued by commercial banks
organized under the laws of the U.S. or any of its states having combined
capital, surplus, and undivided profits of not less than $100,000,000 (as shown
on its most recently published statement of condition); (c) commercial paper and
similar obligations rated "P-1" by Moody's Investors Service, Inc. ("Moody's")
or "A-1" by Standard & Poor's Rating Services, a division of The McGraw-Hill
Companies, Inc. ("S & P"); (d) readily marketable tax-free municipal bonds of
domestic issuer rated "A-2" or better by Moody's or "A" or better by S&P, and
maturing within one year from the date of issuance; and (e) mutual funds or
money market accounts investing primarily in items described in clauses (a)
through (d) above.
"Cedel" means Cedel Bank, societe anonyme.
"Change of Control" means, with respect to the Company or any successor
Person permitted under Article 5 hereof, the occurrence of any of the following:
(a) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d)
of the Exchange Act), other than Apollo and its Affiliates, acquires "beneficial
ownership" (as determined in accordance with Rule 13d-3 under the Exchange Act),
directly or indirectly, of more than 50% of the total outstanding shares of
Voting Stock except to the extent that, and so long as, Apollo and its
affiliates hold the right, by voting power, contract or otherwise, to elect or
designate, and do so elect or designate, a majority of the Company's Board of
Directors; (b) the Company consolidates with or merges into any other
corporation, or conveys, transfers or leases all or substantially all of its
assets to any person, or any other corporation merges into the Company and, in
the case of any such transaction, the outstanding common stock of the Company is
changed or exchanged as a result, unless the shareholders of the Company
immediately before such transaction own, directly or indirectly, at least 51% of
the outstanding shares of Voting Stock of the corporation resulting from such
transaction in substantially the same proportion as their ownership of the
Voting Stock immediately before such transaction (except to the extent that, and
so long as, Apollo and its affiliates hold the right, by voting power or
otherwise, to elect or designate, and do so elect or designate, a majority of
the Board of Directors of the corporation resulting from such transaction); or
(c) the first day on which more than a majority of the members of the Board of
Directors of the Company are not Continuing Directors.
"Clearstream" means Clearstream Banking, S.A.
"Closing Date" means November 21, 2001.
-3-
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor thereto.
"Company" means Vail Resorts, Inc., a Delaware corporation, and any
successor thereto pursuant to Section 5.01 hereof.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company (i) by its Chairman, a Vice Chairman, its
President, Senior Vice President or a Vice President and (ii) by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary and delivered to
the Trustee; provided, however, that such written request or order may be signed
by any two of the officers or directors listed in clause (i) above in lieu of
being signed by one of such officers or directors listed in such clause (i) and
one of the officers listed in clause (ii) above.
"Consolidated EBITDA" means, with respect to any Person for any period, the
Consolidated Net Income of such Person for such period plus, to the extent
deducted in computing such Consolidated Net Income, (i) an amount equal to any
extraordinary loss plus any net loss realized in connection with an Asset Sale,
(ii) provision for taxes based on income or profits of such Person and its
Restricted Subsidiaries for such period, (iii) Consolidated Interest Expense,
and (iv) depreciation and amortization (including amortization of goodwill and
other intangibles but excluding amortization of prepaid cash expenses that were
paid in a prior period) and other non-cash expenses (excluding any such non-cash
expense to the extent that it represents an accrual of or reserve for cash
expenses in any future period or amortization of a prepaid cash expense that was
paid in a prior period) of such Person and its Restricted Subsidiaries for such
period to the extent that such depreciation, amortization and other non-cash
expenses were deducted in computing such Consolidated Net Income, minus (v)
non-cash items increasing such Consolidated Net Income, in each case, for such
period without duplication on a consolidated basis and determined in accordance
with GAAP.
"Consolidated Interest Coverage Ratio" means with respect to any Person for
any period, the ratio of the Consolidated Resort EBITDA of such Person for such
period to the Consolidated Interest Expense of such Person and its Restricted
Subsidiaries for such period. In the event that the Company or any of its
Restricted Subsidiaries incurs, assumes, Guarantees, redeems, repays or
otherwise retires any Indebtedness (other than revolving credit borrowings)
subsequent to the commencement of the period for which the Consolidated Interest
Coverage Ratio is being calculated but prior to the date on which the event for
which the calculation of the Consolidated Interest Coverage Ratio is made (the
"Calculation Date"), then the Consolidated Interest Coverage Ratio shall be
calculated giving pro forma effect to such incurrence, assumption, Guarantee,
redemption, repayment or retirement of Indebtedness as if the same had occurred
at the beginning of the applicable four-quarter reference period. In addition,
for purposes of making the computation referred to above, (i) (a) acquisitions
that have been made by the Company or any of its Restricted Subsidiaries,
including through mergers or consolidations and including any related financing
transactions and (b) other transactions consummated by the Company or any of its
Restricted Subsidiaries with respect to which pro forma effect may be given
pursuant to Article 11 of Regulation S-X under the Securities Act, in each case
during the four-quarter reference period or subsequent to such reference period
and on or prior to the Calculation Date shall be deemed to have occurred on the
first day of the four-quarter reference period and Consolidated Resort EBITDA
for such reference period shall be calculated without giving effect
-4-
to clause (iii) of the proviso set forth in the definition of Consolidated Net
Income, (ii) the Consolidated Resort EBITDA attributable to discontinued
operations, as determined in accordance with GAAP, and operations or businesses
disposed of prior to the Calculation Date, shall be excluded and (iii) the
Consolidated Interest Expense attributable to discontinued operations, as
determined in accordance with GAAP, and operations or businesses disposed of
prior to the Calculation Date, shall be excluded, but only to the extent (x)
that the obligations giving rise to such Consolidated Interest Expense will not
be obligations of the referent Person or any of its Restricted Subsidiaries
following the Calculation Date, or (without duplication) (y) such Consolidated
Interest Expense is less than the Consolidated Resort EBITDA attributable to
such discontinued operations for the same period.
"Consolidated Interest Expense" means with respect to any Person for any
period the sum, without duplication, of (i) the consolidated interest expense of
such Person and its Restricted Subsidiaries for such period, whether paid or
accrued (including, without limitation, amortization of debt issuance costs and
original issue discount, non-cash interest payments, the interest component of
any deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations, commissions, discounts and other fees
and charges incurred in respect of letter of credit or bankers' acceptance
financings, and net payments (if any) pursuant to Hedging Obligations), (ii) the
consolidated interest expense of such Person and its Restricted Subsidiaries
that was capitalized during such period, (iii) any interest expense for such
period on Indebtedness of another Person that is guaranteed by such Person or
one of its Restricted Subsidiaries or secured by a Lien on assets of such Person
or one of its Restricted Subsidiaries (whether or not such Guarantee or Lien is
called upon), in each case, on a consolidated basis and in accordance with GAAP,
and (iv) any Preferred Stock dividends paid in cash by the Company or any of its
Restricted Subsidiaries to a Person other than the Company or any of its
Restricted Subsidiaries, determined, in each case, on a consolidated basis and
in accordance with GAAP.
"Consolidated Net Income" means, with respect to any Person for any period,
the aggregate of the Net Income of such Person and its Restricted Subsidiaries
for such period, on a consolidated basis, determined in accordance with GAAP;
provided that (i) the net income (but not loss) of any Person that is not a
Restricted Subsidiary of such Person or that is accounted for by the equity
method of accounting shall be included only to the extent of the amount of
dividends or distributions paid in cash by such Person during such period to the
referent Person or a Restricted Subsidiary thereof, (ii) the net income (but not
loss) of any Restricted Subsidiary shall be excluded to the extent that the
declaration or payment of dividends or similar distributions by that Restricted
Subsidiary of that net income is not at the date of determination permitted by
operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to that
Restricted Subsidiary or its stockholders, (iii) the Net Income of any Person
acquired in a pooling of interests transaction for any period prior to the date
of such acquisition shall be excluded, and (iv) the cumulative effect of a
change in accounting principles shall be excluded.
"Consolidated Net Worth" means, with respect to any Person as of any date,
the consolidated stockholders' equity of such Person and its consolidated
Restricted Subsidiaries as of such date, less (without duplication) amounts
attributable to Disqualified Stock of such Person, in each case determined in
accordance with GAAP.
-5-
"Consolidated Resort EBITDA" means, with respect to any Person for any
period, the Consolidated EBITDA of such Person for such period minus
consolidated real estate revenue of such Person and its Restricted Subsidiaries
for such period plus consolidated real estate operating expenses of such Person
and its Restricted Subsidiaries for such period minus any portion of such
Consolidated EBITDA attributable to Unrestricted Subsidiaries of such Person for
such period, in each case as reported on such Person's consolidated statement of
operations and determined on a consolidated basis and in accordance with GAAP.
"Continuing Directors" means, as of any date of determination, any member
of the Board of Directors of the Company who (i) was a member of such Board of
Directors on May 11, 1999 or (ii) was nominated for election or elected to such
Board of Directors with the approval of a majority of the Continuing Directors
who were members of such Board at the time of such nomination or election.
"Corporate Trust Office of the Trustee" means the principal corporate trust
office of the Trustee at which at any particular time its corporate trust
business shall be administered, which office at the date of execution of this
Indenture is located at c/o United States Trust Company of New York, 114 West
47th Street, New York, New York 10036.
"Credit Agreement" means that certain Second Amended and Restated Credit
Agreement, dated as of November 13, 2001, by and among The Vail Corporation, the
Lenders named therein, Bank of America, N.A., as Agent, and Banc of America
Securities LLC, including any related notes, guarantees, collateral documents,
instruments and agreements executed in connection therewith, and in each case,
as amended, restated, modified, renewed, refunded, replaced or refinanced in
whole or in part from time to time.
"Custodian" means any receiver, trustee, assignee, liquidator or similar
official under any Bankruptcy Law.
"Default" means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
"Definitive Notes" means a certificated Note registered in the name of the
Holder thereof and issued in accordance with Section 2.06 hereof, substantially
in the form of Exhibit A hereto except that such Note shall not bear the Global
Note Legend and shall not have the "Schedule of Exchanges of Interests in the
Global Note" attached thereto.
"Depositary" means, with respect to any Global Note, the Person specified
in Section 2.03 hereof as the Depositary with respect to such Note, until a
successor shall have been appointed and become such pursuant to the applicable
provision of this Indenture, and, thereafter, "Depositary" shall mean or include
such successor.
"Designated Senior Debt" of any Person means (i) any Indebtedness of such
Person outstanding under the Credit Agreement and (ii) any other Senior Debt of
such Person, the principal amount of which is $25.0 million or more and that has
been designated by the Company as "Designated Senior Debt" of such Person.
-6-
"Disqualified Stock" means any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable at the option of the holder), or upon the happening of any event,
matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or redeemable at the option of the holder thereof, in whole or in
part, on or prior to the date that is 91 days after the date on which the Notes
mature; provided, however, that any Capital Stock that would not constitute
Disqualified Stock but for provisions thereof giving holders thereof the right
to require such Person to purchase or redeem such Capital Stock upon the
occurrence of an "asset sale" or "change of control" occurring on or prior to 91
days after the date on which the Notes mature shall not constitute Disqualified
Stock if (1) the "asset sale" or "change of control" provisions applicable to
such Capital Stock are not more favorable in any respect to the holders of such
Capital Stock than the terms applicable to the Notes pursuant to Sections 3.10,
4.16 and 4.17 hereof; and (2) any such requirement only becomes operative after
compliance with such terms applicable to the Notes, including the purchase of
any Notes tendered pursuant thereto.
"Distribution Compliance Period" has the meaning set forth in Regulation S.
"Equity Interests" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Equity Offering" means (1) a public or private sale of Capital Stock of
the Company and (ii) the sale of other securities convertible or exchangeable
into Capital Stock (other than Disqualified Stock) of the Company; provided, an
Equity Offering shall be deemed to occur with respect to all or a portion of
such securities only upon the conversion or exchange of such securities into
Capital Stock.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear system.
"Event of Default" has the meaning set forth in Section 6.01 hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
"Exchange Notes" means the Notes issued in the Exchange Offer pursuant to
Section 2.06(f) hereof.
"Exchange Offer" means the offer that may be made by the Company pursuant
to any Registration Rights Agreement to exchange Notes for Exchange Notes and
any similar exchange of Additional Notes.
"Exchange Offer Registration Statement" has the meaning set forth in the
Registration Rights Agreement.
"Existing Indebtedness" means Indebtedness of the Company and the Company's
Subsidiaries (other than Indebtedness under the Credit Agreement and the
Existing Notes) in existence on May 11, 1999.
-7-
Existing Note Indenture" means the Indenture dated as of May 11, 1999 among
the Company, the trustee named therein and the guarantors named therein relating
to the Existing Notes, as supplemented on or before the Closing Date.
"Existing Notes" means the $200.0 million aggregate principal amount of 8
3/4% Senior Subordinated Notes due 2009 issued by the Company under the Existing
Note Indenture and outstanding on the Closing Date.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect in the United States from time to time.
"Global Note" means, individually and collectively, each of the Restricted
Global Notes and the Unrestricted Global Notes, substantially in the form of
Exhibit A hereto that bears the Global Note Legend and that has the "Schedule of
Exchange of Interests in the Global Note" attached thereto.
"Global Note Legend" means the legend set forth in Section 2.06(g)(ii),
which is required to be placed on all Global Notes issued under this Indenture.
"Government Securities" means securities that are (a) direct obligations of
the United States of America for the timely payment of which its full faith and
credit is pledged or (b) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of America the
timely payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act), as custodian with respect to any such Government Securities
or a specific payment of principal of or interest on any such Government
Securities held by such custodian for the account of the holder of such
depository receipt; provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the Government Securities or the specific payment of principal of or interest on
the Government Securities evidenced by such depository receipt.
"Guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.
"Guarantor" means (i) each of the Company's Restricted Subsidiaries that is
a party to this Indenture on the date of execution and delivery of this
Indenture and (ii) each other Person that becomes a guarantor of the obligations
of the Company under the Notes and this Indenture from time to time in
accordance with the provisions of this Indenture, and their respective
successors and assigns; provided, however, that "Guarantor" shall not include
any Person that is
-8-
released from its Guarantee of the obligations of the Company under the Notes
and this Indenture as provided in Article 12 hereof.
"Hedging Obligations" means, with respect to any Person, the obligations of
such Person under (i) currency exchange or interest rate swap, cap or collar
agreements and (ii) other agreements or arrangements designed to protect such
Person against fluctuations in currency exchange or interest rates.
"Holder" means a Person in whose name a Note is registered.
"IAI Global Note" means a global note substantially in the form of Exhibit
A hereto bearing the Global Note Legend and the Private Placement Legend (with
such changes therein as may be necessary or appropriate to reflect the interest
of an Institutional Accredited Investor) and deposited with or on behalf of, and
registered in the name of, the Depositary or its nominee that will be issued in
a denomination equal to the outstanding principal amount of the Notes sold or
otherwise transferred to Institutional Accredited Investors.
"Indebtedness" means, with respect to any Person, without duplication, (i)
any indebtedness of such Person, whether or not contingent, in respect of
borrowed money or evidenced by bonds, notes, debentures or similar instruments
or letters of credit (or reimbursement agreements in respect thereof) or
bankers' acceptances or representing Capital Lease Obligations or the balance
deferred and unpaid of the purchase price of any property (which purchase price
is due more than one year after taking title to such property) or services or
representing any Hedging Obligations, except any such balance that constitutes
an accrued expense or trade payable, if and to the extent any of the foregoing
indebtedness (other than letters of credit and Hedging Obligations) would appear
as a liability upon a balance sheet of such Person prepared in accordance with
GAAP; (ii) all indebtedness of others secured by a Lien on any asset of such
Person (whether or not such indebtedness is assumed by such Person the amount of
such obligation, to the extent it is without recourse to such Person, being
deemed to be the lesser of the value of such property or assets or the amount of
the obligation so secured); (iii) to the extent not otherwise included, the
Guarantee by such Person of any Indebtedness of any other Person; provided,
however, that (1) the amount outstanding at any time of any Indebtedness issued
with original issue discount is the face amount of such indebtedness less the
remaining unamortized portion of the original issue discount of such
Indebtedness at such time as determined in conformity with GAAP; and (2)
Indebtedness shall not include any liability for federal, state, local or other
taxes; and (iv) with respect to any Restricted Subsidiary of the Company,
Preferred Stock of such Person (in an amount equal to the greater of (x) the sum
of all obligations of such Person with respect to redemption, repayment or
repurchase thereof and (y) the book value of such Preferred Stock as reflected
on the most recent financial statements of such Person).
"Indenture" means this Indenture, as amended or supplemented from time to
time.
"Initial Purchasers" means Deutsche Banc Alex. Brown Inc., Banc of America
Securities LLC, Bear, Stearns & Co. Inc., CIBC World Markets Corp. and Fleet
Securities, Inc.
-9-
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act.
"Interest Payment Date" means each May 15 and November 15.
"Investments" means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including guarantees of Indebtedness or other obligations),
advances or capital contributions (excluding commission, travel and similar
advances to officers and employees made in the ordinary course of business),
purchases or other acquisitions for consideration of Indebtedness, Equity
Interests or other securities, together with all items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP,
excluding, however, trade accounts receivable and bank deposits made in the
ordinary course of business consistent with past practice. If the Company or any
Restricted Subsidiary of the Company sells or otherwise disposes of any Equity
Interests of any direct or indirect Restricted Subsidiary of the Company such
that, after giving effect to any such sale or disposition, such Person is no
longer a Restricted Subsidiary of the Company, the Company shall be deemed to
have made an Investment on the date of any such sale or disposition equal to the
fair market value of the Equity Interests of such Restricted Subsidiary not sold
or disposed of in an amount determined as provided in the penultimate paragraph
of Section 4.10 hereof.
"Letter of Transmittal" means the letter of transmittal to be prepared by
the Company and sent to all Holders of the Notes for use by such Holders in
connection with the Exchange Offer.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional, sale or other title retention agreement, any lease
in the nature thereof, and any option or other agreement to sell or give a
Lien).
"Liquidated Damages" has the meaning set forth in the Registration Rights
Agreement.
"Make-Whole Amount" means, with respect to any Note, an amount equal to the
excess, if any, of (a) the present value of the remaining principal, premium, if
any, and interest (other than accrued interest otherwise payable upon
redemption) payments that would be payable with respect to such Note if such
Note were redeemed on May 15, 2004, computed using a discount rate equal to the
Treasury Rate plus 50 basis points, over (b) the principal amount of such Note.
"Make-Whole Average Life" means, with respect to any date of redemption of
Notes, the number of years (calculated to the nearest one-twelfth) from such
redemption date to May 15, 2004.
"Make-Whole Price" means, with respect to any Note, the greater of (a) the
sum of the principal amount of and Make-Whole Amount with respect to such Note,
and (b) the redemption price of such Note on May 15, 2004.
"Maturity" when used in respect to any Note means the date on which the
principal of (and premium, if any) and interest and Liquidated Damages, if any,
on such Note becomes due
-10-
and payable as therein or herein provided, whether at Stated Maturity or the
applicable Redemption Date and whether by declaration of acceleration, call for
redemption or otherwise.
"Net Income" means, with respect to any Person for any period, the net
income (or loss) of such Person, determined in accordance with GAAP and before
any reduction in respect of Preferred Stock dividends, excluding, however, (i)
any gain (or loss), together with any related provision for taxes on such gain
(or loss), realized in connection with (a) any Asset Sale (including, without
limitation, dispositions pursuant to Sale and Leaseback Transactions) or (b) the
disposition of any securities by such Person or any of its Subsidiaries or the
extinguishment of any Indebtedness of such Person or any of its Subsidiaries and
(ii) any extraordinary or nonrecurring gain (or loss), together with any related
provision for taxes on such extraordinary or nonrecurring gain (or loss).
"Net Proceeds" means the aggregate cash proceeds or Cash Equivalents
proceeds received by the Company or any of its Restricted Subsidiaries in
respect of any Asset Sale (including, without limitation, any cash received upon
the sale or other disposition of any non-cash consideration received in any
Asset Sale, but only as and when received, and any proceeds deemed to be cash or
Cash Equivalents pursuant to clause (b) of the first paragraph of Section 4.16
hereof, net of (i) the direct costs relating to such Asset Sale (including,
without limitation, legal, accounting and investment banking fees, and sales
commissions) and any relocation expenses incurred as a result thereof, (ii)
taxes paid or payable as a result thereof (after taking into account any
available tax credits or deductions and any tax sharing arrangements), (iii)
amounts required to be applied to the repayment of Indebtedness secured by a
Lien on the asset or assets that were the subject of such Asset Sale, (iv) all
distributions and other payments required to be made to minority interest
holders of a Restricted Subsidiary or joint venture as a result of such Asset
Sale, and (v) any reserve for adjustment in respect of the sale price of such
asset or assets established in accordance with GAAP.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Note Custodian" means the custodian for the Depositary of the Global Note
or any successor entity thereto.
"Notes" means $160,000,000 aggregate principal amount of the Company's 8
3/4% Senior Subordinated Notes due 2009 issued pursuant to this Indenture on the
Closing Date and any other 8 3/4% Senior Subordinated Notes due 2009 hereafter
issued in compliance with the provisions of this Indenture.
"Obligations" means any principal, premium, interest (including
post-petition interest), penalties, fees, indemnifications, reimbursements,
damages and other liabilities payable under the documentation governing any
Indebtedness.
"Officer" means, with respect to any Person, the Chairman of the Board, the
Chief Executive Officer, the President, any Senior Vice President, any Vice
President, the Chief Financial Officer, the Secretary or any Assistant Secretary
of such Person.
-11-
"Officers' Certificate" means, with respect to any Person, a certificate
signed on behalf of such Person by the Chief Executive Officer or President and
by the Chief Financial Officer or chief accounting officer of such Person.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee, that meets the requirements of Section 1.05 hereof
and, to the extent required by the TIA, complies with TIA ss. 314.
"Participant" means, with respect to DTC, Euroclear or Clearstream, a
Person who has an account with DTC, Euroclear or Clearstream, respectively (and,
with respect to DTC, shall include Euroclear and Clearstream).
"Permitted Holder" means Apollo Advisors, L.P., a Delaware limited
partnership, or any fund, investment vehicle or account managed, advised or
controlled by Apollo Advisors, L.P., or any of its Affiliates.
"Permitted Investments" means (i) any Investment in the Company or a
Restricted Subsidiary of the Company; (ii) any Investment in Cash Equivalents;
(iii) any Investment by the Company or any Restricted Subsidiary of the Company
in a Person, if as a result of such Investment (a) such Person becomes a
Restricted Subsidiary of the Company and, to the extent required under the
Indenture, a Guarantor or (b) such Person is merged, consolidated or amalgamated
with or into, or transfers or conveys substantially all of its assets to, or is
liquidated into, the Company or a Restricted Subsidiary of the Company; (iv) any
Investment made as a result of the receipt of non-cash consideration from an
Asset Sale that was made pursuant to and in compliance with Section 4.16 hereof;
(v) any acquisition of assets received solely in exchange for the issuance of
Equity Interests (other than Disqualified Stock) of the Company; (vi) any
Investment in a Similar Business (including any Investment made in any
Unrestricted Subsidiaries in a Similar Business) if, after giving effect to such
Investment, the aggregate amount of all Investments made after May 11, 1999
pursuant to this clause (vi) then constituting Unrestricted Investments
Outstanding does not exceed the greater of (x) $75 million and (y) 7.5% of Total
Consolidated Assets of the Company at the time of such Investment; (vii)
contributions of Real Estate Held for Sale to Real Estate Joint Ventures;
provided, in the case of any Investment made pursuant to this clause (vii) or
the preceding clause (vi), that after giving effect to such Investment (a) no
Default or Event of Default shall have occurred and be continuing or would occur
as a consequence thereof, and (b) the Company would, at the time of such
Investment and after giving pro forma effect thereto as if such Investment had
been made at the beginning of the applicable four-quarter period, have been
permitted to incur at least $1.00 of additional Indebtedness pursuant to the
Consolidated Interest Coverage Ratio test set forth in the first paragraph of
Section 4.09 hereof; and (viii) Investments received in connection with the
settlement of any ordinary course obligations owed to the Company or any of its
Restricted Subsidiaries.
"Permitted Junior Securities" means Equity Interests (other than
Disqualified Stock) in the Company or debt securities that are subordinated to
all Senior Debt of the issuer of such debt securities (and any debt securities
issued in exchange for Senior Debt of the issuer of such debt securities) to
substantially the same extent as, or to a greater extent than, the Notes are
subordinated to Senior Debt.
-12-
"Permitted Liens" means (i) Liens in favor of the Company or any of its
Restricted Subsidiaries; (ii) Liens securing Senior Debt of the Company or any
Restricted Subsidiary of the Company; (iii) Liens on property or Equity
Interests of a Person existing at the time such Person is merged into or
consolidated with the Company or any Restricted Subsidiary of the Company;
provided that such Liens were in existence prior to the contemplation of such
merger or consolidation and do not extend to any assets or Equity Interests
other than those of the Person merged into or consolidated with the Company;
(iv) Liens on property existing at the time of acquisition thereof by the
Company or any Restricted Subsidiary of the Company; provided that such Liens
were in existence prior to the contemplation of such acquisition; (v) Liens
incurred or pledges and deposits made in connection with worker's compensation,
unemployment insurance and other social security benefits, statutory
obligations, bid, surety or appeal bonds, performance bonds or other obligations
of a like nature incurred in the ordinary course of business (other than
contracts in respect of borrowed money and other Indebtedness); (vi) Liens
existing on May 11, 1999; (vii) Liens for taxes, assessments or governmental
charges or claims that are not yet delinquent or that are being contested in
good faith by appropriate proceedings promptly instituted and diligently
concluded; provided that any reserve or other appropriate provision as shall be
required in conformity with GAAP shall have been made therefore; (viii) Liens
securing the Notes or any Guarantee thereof; (ix) Liens securing Permitted
Refinancing Indebtedness to the extent that the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded was permitted to be secured
by a Lien; provided that such Liens do not extend to any assets other than those
that secured the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded; (x) Liens incurred in the ordinary course of business of
the Company or any Restricted Subsidiary of the Company with respect to
obligations that do not exceed $5.0 million at any one time outstanding and that
(a) are not incurred in connection with the borrowing of money or the obtaining
of advances or credit (other than trade credit in the ordinary course of
business) and (b) do not in the aggregate materially detract from the value of
the property or materially impair the use thereof in the operation of business
by the Company or such Restricted Subsidiary; (xi) Liens securing Capital Lease
Obligations, provided that such Liens do not extend to any property or assets
which are not leased property subject to such Capitalized Lease Obligation;
(xii) judgment liens not giving rise to an Event of Default so long as such Lien
is adequately bonded and any appropriate legal proceedings that may have been
duly initiated for the review of such judgment, degree or order shall not have
been finally terminated or the period within such proceedings may be initiated
shall not have expired; (xiii) Liens securing obligations of the Company under
Hedging Obligations; (xiv) purchase money Liens securing Purchase Money
Obligations; provided, that the related Indebtedness shall not be secured by any
property or assets of the Company or any Restricted Subsidiary other than the
property or assets so acquired pursuant to such Purchase Money Obligation; (xv)
Liens upon specific items of inventory or other goods and proceeds of any Person
securing such Person's obligations in respect of bankers' acceptances issued or
created for the account of such Person to facilitate the purchase, shipment or
storage of such inventory or other goods; (xvi) Liens encumbering deposits made
to secure obligations arising from statutory, regulatory, contractual, or
warranty requirements of the Company or any of its Restricted Subsidiaries,
including rights of offset and set-off; (xvii) Liens arising from filing Uniform
Commercial Code financing statements regarding leases; provided that such Liens
do not extend to any property or assets which are not leased property subject to
such leases or subleases; and (xviii) Liens created for the benefit of all of
the Notes and/or any Guarantees thereof.
-13-
"Permitted Refinancing Indebtedness" means any Indebtedness of the Company
or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness (other than Hedging Obligations and other than
Indebtedness permitted to be incurred pursuant to clause (i), clause (iv) or
clause (vii) of the second paragraph of Section 4.09 hereof) of the Company or
any of its Restricted Subsidiaries; provided that: (i) the principal amount (or
accreted value, if applicable) of such Permitted Refinancing Indebtedness does
not exceed the principal amount of (or accreted value, if applicable), plus
premium and accrued interest on, the Indebtedness so extended, refinanced,
renewed, replaced, defeased or refunded (plus the amount of reasonable expenses
incurred in connection therewith); (ii) such Permitted Refinancing Indebtedness
has a final maturity date equal to or later than the final maturity date of, and
has a Weighted Average Life to Maturity equal to or greater than the Weighted
Average Life to Maturity of, the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded; (iii) if the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded is subordinated in
right of payment to the Notes or any Guarantee thereof, such Permitted
Refinancing Indebtedness is subordinated in right of payment to the Notes or
such Guarantee on terms at least as favorable to the Holders of Notes as those
contained in the documentation governing the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; and (iv) such Indebtedness
is incurred either by the Company or by the Restricted Subsidiary that is an
obligor on the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded.
"Person" means any individual, limited or general partnership, corporation,
limited liability company, association, unincorporated organization, trust,
joint stock company, joint venture or other entity, or a government or any
agency or political subdivision thereof.
"Preferred Stock" of any Person means Capital Stock of such Person of any
class or classes (however designated) that ranks prior, as to the payment of
dividends or as to the distribution of assets upon any voluntary or involuntary
liquidation, dissolution or winding up of such Person, to shares of Capital
Stock of any other class of such Person.
"Private Placement Legend" means the legend set forth in Section
2.06(g)(i)(A) to be placed on all Notes issued under this Indenture except as
permitted pursuant to Section 2.06(g)(i)(B).
"Purchase Money Obligations" of any Person means any obligations of such
Person or any of its Subsidiaries to any seller or any other person incurred or
assumed in connection with the purchase of real or personal property to be used
in the business of such person or any of its subsidiaries within 180 days of
such purchase.
"Real Estate Held for Sale" means, with respect to any Person, the real
estate of such Person and its Restricted Subsidiaries classified for financial
reporting purposes as Real Estate Held for Sale on May 11, 1999 or thereafter
acquired as Real Estate Held for Sale.
"Real Estate Joint Venture" means any Person engaged exclusively in the
acquisition, development and operation or resale of any real estate asset or
group of related real estate assets (and directly related activities).
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"Redemption Date," when used with respect to any Note to be redeemed, means
the date fixed for such redemption pursuant to this Indenture.
"Redemption Price," when used with respect to any Note to be redeemed,
means the price (exclusive of any accrued and unpaid interest thereon) at which
it is to be redeemed pursuant to this Indenture.
"Registration Rights Agreement" means that certain Registration Rights
Agreement, dated as of the date of this Indenture, among the Company, the
Guarantors and the Initial Purchaser, as amended or supplemented from time to
time, or similar agreement relating to Additional Notes.
"Regular Record Date" for the interest payable on any Interest Payment Date
means the May 1 or November 1 (whether or not a Business Day), as the case may
be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S promulgated under the Securities Act.
"Regulation S Global Note" means a Regulation S Temporary Global Note or
Regulation S Permanent Global Note, as appropriate.
"Regulation S Permanent Global Note" means a permanent global Note in the
form of Exhibit A hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of, and registered in the name
of, the Depositary or its nominee that will be issued in a denomination equal to
the outstanding principal amount of the Regulation S Temporary Global Note upon
expiration of the Distribution Compliance Period.
"Regulation S Temporary Global Note" means a temporary global Note in the
form of Exhibit A hereto bearing the Global Note Legend, the Private Placement
Legend and the Regulation S Temporary Global Note Legend and deposited with or
on behalf of, and registered in the name of, the Depositary or its nominee that
will be issued in a denomination equal to the initial outstanding principal
amount of the Notes sold in reliance on Rule 904 of Regulation S.
"Regulation S Temporary Global Note Legend" means the legend set forth in
Section 2.06(g)(iii) which is required to be placed on all Regulation S
Temporary Global Notes issued under this Indenture.
"Responsible Officer" when used with respect to the Trustee, shall mean any
officer assigned to the Corporate Trust Office, including any managing director,
vice president, assistant vice president, assistant treasurer, assistant
secretary or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and having
direct responsibility for the administration of this Indenture, and also, with
respect to a particular matter, any other officer, to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
"Restricted Definitive Note" means a Definitive Note bearing the Private
Placement Legend.
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"Restricted Global Note" means a Global Note bearing the Private Placement
Legend.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Period" means the 40 day restricted period as defined in
Regulation S.
"Restricted Subsidiary" of a Person means any Subsidiary of the referent
Person that is not an Unrestricted Subsidiary.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated under the Securities Act.
"Sale and Leaseback Transaction" means an arrangement relating to property
now owned or hereafter acquired whereby the Company or a Restricted Subsidiary
transfers such property to a Person and the Company or a Restricted Subsidiary
leases it from such Person.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
"Senior Debt" of any Person means (i) the Obligations of such Person under
the Credit Agreement, including, without limitation, Hedging Obligations and
reimbursement obligations in respect of letters of credit and bankers
acceptances, and (ii) any other Indebtedness of such Person, unless the
instrument under which such Indebtedness is incurred expressly provides that it
is on a parity with or subordinated in right of payment to the Notes.
Notwithstanding anything to the contrary in the foregoing, Senior Debt of a
Person shall not include (u) any Indebtedness represented by the Existing Notes
or by any Guarantee of the Existing Notes, (v) any obligation to, in respect of
or imposed by any environmental, landfill, waste management or other regulatory
governmental agency, statute, law or court order, (w) any liability for federal,
state, local or other taxes, (x) any Indebtedness of such Person to any of its
Subsidiaries or other Affiliates, (y) any trade payables or (z) any Indebtedness
that is incurred by such Person in violation of the Indenture (except to the
extent that the original holder thereof relied in good faith after being
provided with a copy of this Indenture upon an Officer's Certificate of such
Person to the effect that the incurrence of such Indebtedness did not violate
this Indenture).
"Shelf Registration Statement" has the meaning set forth in the
Registration Rights Agreement.
"Significant Subsidiary" means any Restricted Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation was in effect on
May 11, 1999.
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"Similar Business" means any business conducted by the Company or any of
its Subsidiaries as of May 11, 1999 or any other recreation, leisure and/or
hospitality business including without limitation ski mountain resort
operations, or any business or activity that is reasonably similar thereto or a
reasonable extension, development or expansion thereof or is reasonably
ancillary thereto.
"Special Record Date" means a date fixed by the Trustee for the payment of
any Defaulted Interest pursuant to Section 2.12 thereof.
"Stated Maturity" means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"Subsidiary" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of at least a majority of the
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by such Person or one or more of the other Subsidiaries
of that Person (or a combination thereof) and (ii) any partnership (a) the sole
general partner or the managing general partner of which is such Person or a
Subsidiary of such Person or (b) the only general partners of which are such
Person or one or more Subsidiaries of such Person (or any combination thereof).
"Subsidiary Guarantee" means any guarantee of the obligations of the
Company pursuant to this Indenture and the Notes by any Person in accordance
with the provisions of this Indenture.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. ss.ss. 77a-77bbbb)
as in effect on the date on which this Indenture is qualified under the TIA;
provided, however, that in the event the Trust Indenture Act of 1939 is amended
after such date, then "TIA" means, to the extent required by such amendment, the
Trust Indenture Act of 1939 as so amended.
"Total Consolidated Assets" means, with respect to any Person as of any
date, the book value of the assets of such Person and its Restricted
Subsidiaries as shown on the most recent consolidated balance sheet of such
Person.
"Treasury Rate" means, at any time of computation, the yield to maturity at
such time (as compiled by and published in the most recent statistical release
(or any successor release) of the Federal Reserve Bank of New York, which has
become publicly available at least two business days prior to the date of the
redemption notice or, if such statistical release (or successor release) is no
longer published, any generally recognized publicly available source of similar
market data) of United States Treasury securities with a constant maturity most
nearly equal to the Make-Whole Average Life; provided, however, that if the
Make-Whole Average Life is not equal to the constant maturity of the United
States Treasury security for which a weekly average yield is given, the Treasury
Rate shall be obtained by linear interpolation (calculated to the nearest
one-twelfth of a year) from the weekly average yields of United States Treasury
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securities for which such yields are given, except that if the Make-Whole
Average Life is less than one year, the weekly average yield on actually traded
United States Treasury securities adjusted to a constant maturity of one year
shall be used.
"Trustee" means the party named as such above until a successor replaces it
in accordance with applicable provisions of this Indenture and thereafter means
such successor.
"Unrestricted Definitive Note" means one or more Definitive Notes that do
not bear and are not required to bear the Private Placement Legend.
"Unrestricted Global Note" means a permanent global Note substantially in
the form of Exhibit A attached hereto that bears the Global Note Legend and that
has the "Schedule of Exchanges of Interests in the Global Note" attached
thereto, and that is deposited with or on behalf of and registered in the name
of the Depositary, representing Notes that do not bear the Private Placement
Legend.
"Unrestricted Investments Outstanding" means, at any time of determination,
in respect of all Permitted Investments made pursuant to clause (vi) of the
definition of the term Permitted Investments, the excess, if any, of (i) the sum
of all Permitted Investments theretofore made by the Company or any Restricted
Subsidiary on or after May 11, 1999 pursuant to clause (vi) of the definition of
Permitted Investments over (ii) the amount of all cash, and the fair market
value of any assets or property, distributed as dividends and distributions to
the Company or a Restricted Subsidiary of the Company (to the extent that the
Company does not elect to include the amount of such dividends and distributions
in the computation of Consolidated Net Income pursuant to the parenthetical of
clause (i) of the definition thereof at the time of determination), and all
repayments of the principal amount of loans or advances, the net cash proceeds,
and the fair market value of assets or property, received from sales or
transfers, in respect of such Investments to the Company or any of its
Restricted Subsidiaries and any other reduction made in cash of such Investments
in such Person.
"Unrestricted Subsidiary" means Boulder/Beaver, LLC, Colter Bay
Corporation, Eagle Park Reservoir Company, Forest Ridge Holdings, Inc., Gros
Ventre Utility Company, Jackson Lake Lodge Corporation, Jenny Lake Lodge, Inc.,
Mountain Thunder, Inc., Resort Technology Partners, LLC, RT Partners, Inc., SSI
Venture, LLC, Vail Associates Investments, Inc. and VR Holdings, Inc., and any
other Subsidiary that is designated by the Board of Directors as an Unrestricted
Subsidiary pursuant to a Board Resolution, but only to the extent that such
Subsidiary is not party to any agreement, contract, arrangement or understanding
with the Company or any Restricted Subsidiary of the Company unless the terms of
any such agreement, contract, arrangement or understanding comply with Section
4.12 hereof.
"U.S. Person" means a U.S. person as defined in Rule 902(k) under the
Securities Act.
"Voting Stock" of any Person as of any date means classes of the Capital
Stock of such Person that is at the time entitled to vote in the election of at
least a majority of the directors, managers, trustees or other governing body of
such Person.
"Weighted Average Life to Maturity" means, when applied to any Indebtedness
at any date, the number of years obtained by dividing (i) the sum of the
products obtained by
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multiplying (a) the amount of each then remaining installment, sinking fund,
serial maturity or other required payments of principal, including payment at
final maturity, in respect thereof, by (b) the number of years (calculated to
the nearest one-twelfth) that will elapse between such date and the making of
such payment, by (ii) the then outstanding principal amount of such
Indebtedness.
SECTION 1.02. Other Definitions
Defined
Term in Section
---- ----------
"Act" 1.07
"Affiliate Transaction" 4.12
"Asset Sale Offer" 3.10
"Change of Control Offer" 4.17
"Change of Control Payment" 4.17
"Change of Control Payment Date" 4.17
"Contributor" 12.07
"Covenant Defeasance" 8.03
"DTC" 2.03
"Defaulted Interest" 2.12
"Event of Default" 6.01
"Excess Proceeds" 4.16
"Expiration Date" 4.17
"Funding Party" 12.07
"Guaranteed Obligations" 12.01
"incur" 4.09
"Legal Defeasance" 8.02
"Offer Amount" 3.10
"Offer Period" 3.10
"Paying Agent" 2.03
"Payment Blockage Notice" 10.03
"Payment Default" 6.01
"Permitted Debt" 4.09
"Purchase Date" 3.10
"QIB" 2.01
"Registrar" 2.03
"Restricted Payments" 4.10
SECTION 1.03. Incorporation by Reference of Trust Indenture Act
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture.
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The following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Notes and the Subsidiary Guarantees;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
"obligor" on the Notes means the Company, each Guarantor and any successor
obligors upon the Notes.
All other terms used in this Indenture that are defined by the TIA, defined
by TIA reference to another statute or defined by SEC rule under the TIA have
the meanings so assigned to them.
SECTION 1.04. Rules of Construction
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the plural
include the singular;
(5) provisions apply to successive events and transactions; and
(6) references to sections of or rules under the Securities Act or the
Exchange Act shall be deemed to include substitute, replacement or
successor sections or rules adopted by the SEC from time to time.
SECTION 1.05. Compliance Certificates and Opinions
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture (including any covenant compliance with which
constitutes a condition precedent) relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that, in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
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Every certificate or opinion (other than the certificates required by
Section 4.05(a) hereof) with respect to compliance with a condition or covenant
provided for in this Indenture shall comply with the provisions of TIA ss.
314(e) and shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he or
she has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 1.06. Form of Documents Delivered to Trustee
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representation
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel, may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.07. Acts of Holders
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing;
and, except as herein otherwise expressly
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provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to TIA ss. 315) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section
1.07.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved in any reasonable manner that the Trustee deems
sufficient.
(c) The ownership of Notes shall be proved by a register kept by the
Registrar.
(d) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by or pursuant to a Board Resolution, fix in advance a record
date for the determination of such Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other Act or to
revoke any consent previously given, but the Company shall have no obligation to
do so. Notwithstanding TIA ss. 316(c), any such record date shall be the record
date specified in or pursuant to such Board Resolution, which shall be a date
not more than 30 days prior to the first solicitation of Holders generally in
connection therewith and no later than the date such solicitation is completed.
If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act or revocation of any consent
previously given may be given before or after such record date, but only the
Holders of record at the close of business on such record date shall be deemed
to be Holders for the purposes of determining whether Holders of the requisite
proportion of Notes then outstanding have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other
Act, and for this purpose the Notes then outstanding shall be computed as of
such record date; provided that no such request, demand, authorization,
direction, notice, consent, waiver or other Act by the Holders on such record
date shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than nine months after the record date.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other Act by the Holder of any Note shall bind every future Holder of the
same Note or the Holder of every Note issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof, in respect of anything done,
suffered or omitted to be done by the Trustee, any Paying Agent or the Company
in reliance thereon, whether or not notation of such action is made upon such
Note.
(f) All Notes issued pursuant to this Indenture shall vote as one class on
all matters.
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ARTICLE 2
THE NOTES
SECTION 2.01. Form and Dating
(a) General. The Notes and the Trustee's certificate of authentication
relating thereto shall be substantially in the form of Exhibit A attached hereto
with such appropriate insertions, substitutions and other variations as are
required or permitted by this Indenture. The Notes may have notations, legends
or endorsements required by law, stock exchange rule or usage, as designated by
the Company or its counsel. Each Note shall be dated the date of its
authentication. The Notes shall be in denominations of $1,000 and integral
multiples thereof.
(b) Global Notes. Notes issued in global form shall be substantially in the
form of Exhibit A attached hereto (including the Global Note Legend and the
"Schedule of Exchanges in the Global Note" attached thereto). Notes issued in
definitive form shall be substantially in the form of Exhibit A attached hereto
(but without the Global Note Legend and without the "Schedule of Exchanges of
Interests in the Global Note" attached thereto). Each Global Note shall
represent such of the outstanding Notes as shall be specified therein and the
aggregate principal amount of outstanding Notes represented thereby from time to
time shall be reflected on the records maintained by the Trustee. The aggregate
principal amount of outstanding Notes represented by a Global Note may from time
to time be reduced or increased, as appropriate, to reflect transfers,
exchanges, repurchases and redemptions. Any increase or decrease in the
aggregate principal amount outstanding of a Global Note shall be reflected on
the records maintained by the Trustee or the Note Custodian, at the direction of
the Trustee, in accordance with instructions given by the Holder thereof as
required by Section 2.06 hereof.
(c) Temporary Global Notes. Notes offered and sold in reliance on
Regulation S shall be issued initially in the form of the Regulation S Temporary
Global Note, which shall be deposited on behalf of the purchasers of the Notes
represented thereby with the Trustee, at its New York office, as custodian for
the Depositary, and registered in the name of the Depositary or the nominee of
the Depositary for the accounts of designated agents holding on behalf of
Euroclear or Clearstream, duly executed by the Company and authenticated by the
Trustee as hereinafter provided. The Distribution Compliance Period shall be
terminated upon the receipt by the Trustee of (i) a written certificate from the
Depositary, together with copies of certificates from Euroclear and Clearstream
certifying that they have received certification of non-United States beneficial
ownership of 100% of the aggregate principal amount of the Regulation S
Temporary Global Note (except to the extent of any beneficial owners thereof who
acquired an interest therein during the Distribution Compliance Period pursuant
to another exemption from registration under the Securities Act and who will
take delivery of a beneficial ownership interest in a 144A Global Note or an IAI
Global Note bearing a Private Placement Legend, all as contemplated by Section
2.06(g)(i)), and (ii) an Officers' Certificate from the Company. Following the
termination of the Distribution Compliance Period, beneficial interests in the
Regulation S Temporary Global Note shall be exchanged for beneficial interests
in Regulation S Permanent Global Notes pursuant to the Applicable Procedures.
Simultaneously with the authentication of Regulation S Permanent Global Notes,
the Trustee shall cancel the Regulation S Temporary Global Note. The aggregate
principal amount of the Regulation S
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Temporary Global Note and the Regulation S Permanent Global Notes may from time
to time be increased or decreased by adjustments made on the records of the
Trustee and the Depositary or its nominee, as the case may be, in connection
with transfers of interest as hereinafter provided.
(d) Euroclear and Clearstream Procedures Applicable. The provisions of the
"Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear" and the "General Terms and Conditions of
Clearstream" and "Customer Handbook" of Cedel Bank (as adopted by Clearstream)
and any alternative or additional procedures from time to time adopted by
Euroclear or Clearstream shall be applicable to transfers of beneficial
interests in the Regulation S Temporary Global Note and the Regulation S
Permanent Global Notes that are held by Participants through Euroclear or
Clearstream.
SECTION 2.02. Execution and Authentication
Two Officers of the Company shall sign the Notes for the Company by manual
or facsimile signature.
If an Officer of the Company whose signature is on a Note no longer holds
that office at the time the Note is authenticated, the Note shall nevertheless
be valid.
A Note shall not be valid until authenticated by the manual signature of
the Trustee. The signature of the Trustee shall be conclusive evidence that the
Note so authenticated has been duly authenticated and delivered hereunder.
The Trustee shall, by a written order of the Company signed by two Officers
(an "Authentication Order"), authenticate Notes for original issue in the
aggregate principal amount of up to $300,000,000. Except as contemplated by
Section 2.08 hereof, the aggregate principal amount of Notes outstanding at any
time may not exceed $300,000,000.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Notes. Unless limited by the terms of such appointment, an
authenticating agent may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as an
Agent to deal with any Holder, the Company or an Affiliate of the Company. The
Trustee shall not be liable for any act or failure to act of the authenticating
agent to perform any duty either required herein or authorized herein to be
performed by such person in accordance with this Indenture. Each authenticating
agent shall be acceptable to the Company and otherwise comply in all respects
with the eligibility requirements of the Trustee contained in this Indenture.
SECTION 2.03. Registrar and Paying Agent
The Company shall maintain an office or agency where Notes may be presented
for registration of transfer or for exchange ("Registrar") and an office or
agency where Notes may be presented or surrendered for payment ("Paying Agent").
The Registrar shall keep a register of the Notes and of their transfer and
exchange. The Company may appoint one or more co-registrars and one or more
additional paying agents. The term "Paying Agent" includes any additional paying
agents. The Company may change any Paying Agent or Registrar without
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notice to any Holder. The Company shall notify the Trustee in writing of the
name and address of any Agent not a party to this Indenture. If the Company
fails to appoint or maintain another entity as Registrar or Paying Agent, the
Trustee shall act as such and shall be entitled to appropriate compensation in
accordance with Section 7.07 hereof. The Company or any of its Subsidiaries may
not act as Paying Agent or Registrar.
The Company shall enter into an appropriate agency agreement with any Agent
not a party to this Indenture, which shall incorporate the provisions of the
TIA. The agreement shall implement the provisions of this Indenture that relate
to such Agent. The Company initially appoints The Depository Trust Company
("DTC") to act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Note Custodian with respect to the Global Notes.
SECTION 2.04. Paying Agent to Hold Assets in Trust
The Company shall require each Paying Agent other than the Trustee to agree
in writing that the Paying Agent will hold in trust for the benefit of Holders
or the Trustee all assets held by the Paying Agent for the payment of principal
of, premium or Liquidated Damages, if any, or interest on the Notes (whether
such assets have been distributed to it by the Company or any other obligor on
the Notes), and will notify the Trustee of any default by the Company or any
Guarantor in making any such payment. While any such default continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee.
The Company at any time may require a Paying Agent to distribute all assets held
by it to the Trustee and account for any assets disbursed. Upon payment over and
accounting to the Trustee, the Paying Agent shall have no further liability for
the assets. Upon any bankruptcy or reorganization proceedings relating to the
Company or any Guarantor, the Trustee shall serve as Paying Agent for the Notes.
SECTION 2.05. Holder Lists
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA ss. 312(a). If the Trustee is
not the Registrar, the Company and/or the Guarantors shall furnish to the
Trustee at least seven Business Days before each Interest Payment Date and at
such other times as the Trustee may request in writing, a list in such form and
as of such date as the Trustee may reasonably require of the names and addresses
of the Holders of Notes, including the aggregate principal amount of Notes held
by each Holder, and the Company and/or the Guarantors shall otherwise comply
with TIA ss. 312(a).
SECTION 2.06. Transfer and Exchange
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All Global Notes will be exchanged by
the Company for Definitive Notes if, and only if, either (i) the Company
delivers to the Trustee notice from the Depositary that it is unwilling or
unable to
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continue as depositary and a successor depositary is not appointed by the
Company within 90 days after the date of such notice from the Depositary, or
(ii) the Company in its sole discretion determines that the Global Notes (in
whole but not in part) should be exchanged for Definitive Notes and delivers a
written notice to such effect to the Trustee; provided that in no event shall
the Regulation S Temporary Global Note be exchanged by the Company for
Definitive Notes prior to (x) the expiration of the Distribution Compliance
Period and (y) the receipt by the Registrar of any certificates required
pursuant to Rule 903(c)(3)(ii)(B) under the Securities Act, then, upon surrender
by the Global Note Holder of a Global Note, Notes in the form of Definitive
Notes will be issued to each person that the Global Note Holder and the
Depositary identify as being the beneficial owner of the related Notes. Upon the
occurrence of any of the preceding events in (i) or (ii) above, Definitive Notes
shall be issued in such names as the Depositary shall instruct the Trustee.
Global Notes also may be exchanged or replaced, in whole or in part, as provided
in Sections 2.07 and 2.10 hereof. Every Note authenticated and delivered in
exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to
Section 2.07 or 2.10 hereof, shall be authenticated and delivered in the form
of, and shall be, a Global Note. A Global Note may not be exchanged for another
Note other than as provided in this Section 2.06(a), however, beneficial
interests in a Global Note may be transferred and exchanged as provided in
Section 2.06(b), (c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global Notes. The
transfer and exchange of beneficial interests in the Global Notes shall be
effected through the Depositary, in accordance with the provisions of this
Indenture and the Applicable Procedures. Beneficial interests in the Restricted
Global Notes shall be subject to restrictions on transfer comparable to those
set forth herein to the extent required by the Securities Act. Transfers of
beneficial interests in the Global Notes also shall require compliance with
either subparagraph (i) or (ii) below, as applicable, as well as one or more of
the other following subparagraphs as applicable:
(i) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in
the same Restricted Global Note in accordance with the transfer
restrictions set forth in the Private Placement Legend; provided, however,
that prior to the expiration of the Distribution Compliance Period
transfers of beneficial interests in the Temporary Regulation S Global Note
may not be made to a U.S. Person or for the account or benefit of a U.S.
Person. Beneficial interests in any Unrestricted Global Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note. No written orders or
instructions shall be required to be delivered to the Registrar to effect
the transfers described in this Section 2.06(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in
Global Notes. In connection with all transfers and exchanges of beneficial
interests (other than a transfer of a beneficial interest in a Global Note
to a Person who takes delivery thereof in the form of a beneficial interest
in the same Global Note), the transferor of such beneficial interest must
deliver to the Registrar either (A) (1) a written order from a Participant
or an Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to credit or cause to be
credited a beneficial interest in another Global Note in an amount equal to
the beneficial interest to
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be transferred or exchanged and (2) instructions given in accordance with
the Applicable Procedures containing information regarding the Participant
account to be credited with such increase or (B) (1) a written order from a
Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to cause
to be issued a Definitive Note in an amount equal to the beneficial
interest to be transferred or exchanged and (2) instructions given by the
Depositary to the Registrar containing information regarding the Person in
whose name such Definitive Note shall be registered to effect the transfer
or exchange referred to in (1) above; provided that in no event shall
Definitive Notes be issued upon the transfer or exchange of beneficial
interests in the Regulation S Temporary Global Note prior to (x) the
expiration of the Distribution Compliance Period and (y) the receipt by the
Registrar of any certificates required pursuant to Rule 903 under the
Securities Act. Upon consummation of an Exchange Offer by the Company in
accordance with Section 2.06(f) hereof, the requirements of this Section
2.06(b)(ii) shall be deemed to have been satisfied upon receipt by the
Registrar of the instructions contained in the Letter of Transmittal
delivered by the Holder of such beneficial interests in the Restricted
Global Notes. Upon satisfaction of all of the requirements for transfer or
exchange of beneficial interests in Global Notes contained in this
Indenture, the Notes and otherwise applicable under the Securities Act, the
Trustee shall adjust the principal amount of the relevant Global Note(s)
pursuant to Section 2.06(h) hereof.
(iii) Transfer of Beneficial Interests to Another Restricted Global
Note. A beneficial interest in any Restricted Global Note may be
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of clause (ii) above and the Registrar
receives the following:
(A) if the transferee will take delivery in the form of a
beneficial interest in the 144A Global Note, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including the
certifications in item (1) thereof;
(B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Temporary Global Note or the
Regulation S Global Note, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof; and
(C) if the transferee will take delivery in the form of a
beneficial interest in the IAI Global Note, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item
(3)(d) thereof, if applicable.
(iv) Transfer and Exchange of Beneficial Interests in a Restricted
Global Note for Beneficial Interests in the Unrestricted Global Note. A
beneficial interest in any Restricted Global Note may be exchanged by any
holder thereof for a beneficial interest in an Unrestricted Global Note or
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note if the exchange or
transfer complies with the requirements of clause (ii) above and:
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(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the holder of the beneficial interest to be transferred, in the
case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not (1) a
Broker-Dealer, (2) a Person participating in the distribution of the
Exchange Notes or (3) a Person who is an affiliate (as defined in Rule
144) of the Company;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) any such transfer is effected by a Broker-Dealer pursuant to
the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a beneficial interest in an Unrestricted Global
Note, a certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(a) thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the form
of a beneficial interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D) above
at a time when an Unrestricted Global Note has not yet been issued, the Company
shall issue and, upon receipt of an authentication order in accordance with
Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted
Global Notes in an aggregate principal amount equal to the principal amount of
beneficial interests transferred pursuant to subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be exchanged
for, or transferred to Persons who take delivery thereof in the form of, a
beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.
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(i) Beneficial Interest in Restricted Global Notes to Restricted Definitive
Notes. If any holder of a beneficial interest in a Restricted Global Note
proposes to exchange such beneficial interest for a Restricted Definitive Note
or to transfer such beneficial interest to a Person who takes delivery thereof
in the form of a Restricted Definitive Note, then, upon receipt by the Registrar
of the following documentation:
(A) if the holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for a Restricted
Definitive Note, a certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred to a QIB in
accordance with Rule 144A under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in item
(1) thereof;
(C) if such beneficial interest is being transferred to a Non-U.S.
Person in an offshore transaction in accordance with Rule 903 or Rule 904
under the Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (2) thereof;
(D) if such beneficial interest is being transferred pursuant to an
exemption from the registration requirements of the Securities Act in
accordance with Rule 144 under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in item
(3)(a) thereof;
(E) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption from the
registration requirements of the Securities Act other than those listed in
subparagraphs (B) through (D) above, a certificate to the effect set forth
in Exhibit B hereto, including the certifications, certificates and Opinion
of Counsel required by item (3) thereof, if applicable;
(F) if such beneficial interest is being transferred to the Company or
any of its Subsidiaries, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(b) thereof; or
(G) if such beneficial interest is being transferred pursuant to an
effective registration statement under the Securities Act, a certificate to
the effect set forth in Exhibit B hereto, including the certifications in
item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the
Company shall execute and the Trustee shall authenticate and deliver to the
Person designated in the instructions a Definitive Note in the appropriate
principal amount. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect
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Participant. The Trustee shall deliver such Definitive Notes to the Persons in
whose names such Notes are so registered. Any Definitive Note issued in exchange
for a beneficial interest in a Restricted Global Note pursuant to this Section
2.06(c)(i) shall bear the Private Placement Legend and shall be subject to all
restrictions on transfer contained therein.
Notwithstanding Sections 2.06(c)(i)(A) and (C), a beneficial interest in
the Regulation S Temporary Global Note may not be exchanged for a Definitive
Note or transferred to a Person who takes delivery thereof in the form of a
Definitive Note prior to (x) the expiration of the Distribution Compliance
Period and (y) the receipt by the Registrar of any certificates required
pursuant to Rule 903(c)(3)(ii)(B) under the Securities Act, except in the case
of a transfer pursuant to an exemption from the registration requirements of the
Securities Act other than Rule 903 or Rule 904.
(ii) Beneficial Interests in Restricted Global Notes to Unrestricted
Definitive Notes. A holder of a beneficial interest in a Restricted Global Note
may exchange such beneficial interest for an Unrestricted Definitive Note or may
transfer such beneficial interest to a Person who takes delivery thereof in the
form of an Unrestricted Definitive Note only if:
(A) such exchange or transfer is effected pursuant to the Exchange
Offer in accordance with the Registration Rights Agreement and the holder
of such beneficial interest, in the case of an exchange, or the transferee,
in the case of a transfer, is not (1) a Broker-Dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a Person who
is an affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement;
(C) any such transfer is effected by a Broker-Dealer pursuant to the
Exchange Offer Registration Statement in accordance with the Registration
Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a
Definitive Note that does not bear the Private Placement Legend, a
certificate from such holder in the form of Exhibit C hereto,
including the certifications in item (1)(b) thereof; or
(2) if the holder of such beneficial interest in a Restricted
Global Note proposes to transfer such beneficial interest to a Person
who shall take delivery thereof in the form of a Definitive Note that
does not bear the Private Placement Legend, a certificate from such
holder in the form of Exhibit B hereto, including the certifications
in item (4) thereof;
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and, in each such case set forth in this subparagraph (D), if the Registrar
so requests or if the Applicable Procedures so require, an Opinion of
Counsel in form reasonably acceptable to the Company, to the effect that
such exchange or transfer is in compliance with the Securities Act and that
the restrictions on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance with the
Securities Act.
(iii) Beneficial Interests in Unrestricted Global Notes to Unrestricted
Definitive Notes. If any holder of a beneficial interest in an Unrestricted
Global Note proposes to exchange such beneficial interest for a Definitive Note
or to transfer such beneficial interest to a Person who takes delivery thereof
in the form of a Definitive Note, then, upon satisfaction of the conditions set
forth in Section 2.06(b)(ii) hereof, the Trustee shall cause the aggregate
principal amount of the applicable Global Note to be reduced accordingly
pursuant to Section 2.06(h) hereof, and the Company shall execute and the
Trustee shall authenticate and deliver to the Person designated in the
instructions a Definitive Note in the appropriate principal amount. Any
Definitive Note issued in exchange for a beneficial interest pursuant to this
Section 2.06(c)(iii) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such beneficial
interest shall instruct the Registrar through instructions from the Depositary
and the Participant or Indirect Participant. The Trustee shall deliver such
Definitive Notes to the Persons in whose names such Notes are so registered. Any
Definitive Note issued in exchange for a beneficial interest pursuant to this
Section 2.06(c)(iii) shall not bear the Private Placement Legend. A beneficial
interest in an Unrestricted Global Note cannot be exchanged for a Definitive
Note bearing the Private Placement Legend or transferred to a Person who takes
delivery thereof in the form of a Definitive Note bearing the Private Placement
Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests.
(i) Restricted Definitive Notes to Beneficial Interests in Restricted
Global Notes. If any Holder of a Restricted Definitive Note proposes to exchange
such Note for a beneficial interest in a Restricted Global Note or to transfer
such Restricted Definitive Notes to a Person who takes delivery thereof in the
form of a beneficial interest in a Restricted Global Note, then, upon receipt by
the Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Note proposes to
exchange such Note for a beneficial interest in a Restricted Global Note, a
certificate from such Holder in the form of Exhibit C hereto, including the
certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Note is being transferred to a QIB
in accordance with Rule 144A under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in item
(1) thereof;
(C) if such Restricted Definitive Note is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule 903 or
Rule
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904 under the Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being transferred pursuant
to an exemption from the registration requirements of the Securities Act in
accordance with Rule 144 under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in item
(3)(a) thereof;
(E) if such Restricted Definitive Note is being transferred to an
Institutional Accredited Investor in reliance on an exemption from the
registration requirements of the Securities Act other than those listed in
subparagraphs (B) through (D) above, a certificate to the effect set forth
in Exhibit B hereto, including the certifications, certificates and Opinion
of Counsel required by item (3) thereof, if applicable;
(F) if such Restricted Definitive Note is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in item (3)(b) thereof;
or
(G) if such Restricted Definitive Note is being transferred pursuant
to an effective registration statement under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or cause to be
increased the aggregate principal amount of, in the case of clause (A) above,
the appropriate Restricted Global Note, in the case of clause (B) above, the
144A Global Note, in the case of clause (C) above, the Regulation S Global Note,
and in the case of clause (E) above, the IAI Global Note.
(ii) Restricted Definitive Notes to Beneficial Interests in Unrestricted
Global Notes. A Holder of a Restricted Definitive Note may exchange such Note
for a beneficial interest in an Unrestricted Global Note or transfer such
Restricted Definitive Note to a Person who takes delivery thereof in the form of
a beneficial interest in an Unrestricted Global Note only if:
(A) such exchange or transfer is effected pursuant to the Exchange
Offer in accordance with the Registration Rights Agreement and the Holder,
in the case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not (1) a
Broker-Dealer, (2) a Person participating in the distribution of the
Exchange Notes or (3) a Person who is an affiliate (as defined in Rule 144)
of the Company;
(B) any such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement;
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(C) any such transfer is effected by a Broker-Dealer pursuant to the
Exchange Offer Registration Statement in accordance with the Registration
Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive Notes proposes to exchange
such Notes for a beneficial interest in the Unrestricted Global Note,
a certificate from such Holder in the form of Exhibit C hereto,
including the certifications in item (1)(c) thereof; or
(2) if the Holder of such Definitive Notes proposes to transfer
such Notes to a Person who shall take delivery thereof in the form of
a beneficial interest in the Unrestricted Global Note, a certificate
from such Holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar
so requests or if the Applicable Procedures so require, an Opinion of
Counsel in form reasonably acceptable to the Company to the effect that
such exchange or transfer is in compliance with the Securities Act, that
the restrictions on transfer contained herein and in the Private Placement
Legend are not required in order to maintain compliance with the Securities
Act, and such Definitive Notes are being exchanged or transferred in
compliance with any applicable blue sky securities laws of any State of the
United States.
Upon satisfaction of the conditions of any of the subparagraphs in this
Section 2.06(d)(ii), the Trustee shall cancel the Definitive Notes and increase
or cause to be increased the aggregate principal amount of the Unrestricted
Global Note.
(iii) Unrestricted Definitive Notes to Beneficial Interests in Unrestricted
Global Notes. A Holder of an Unrestricted Definitive Note may exchange such Note
for a beneficial interest in an Unrestricted Global Note or transfer such
Definitive Notes to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note at any time. Upon receipt of
a request for such an exchange or transfer, the Trustee shall cancel the
applicable Unrestricted Definitive Note and increase or cause to be increased
the aggregate principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a beneficial
interest is effected pursuant to subparagraphs (ii)(B), (ii)(D) or (iii) above
at a time when an Unrestricted Global Note has not yet been issued, the Company
shall issue and, upon receipt of an Authentication Order in accordance with
Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted
Global Notes in an aggregate principal amount equal to the principal amount of
Definitive Notes so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon
request by a Holder of Definitive Notes and such Holder's compliance with the
provisions of this Section 2.06(e), the Registrar shall register the transfer or
exchange of Definitive Notes. Prior to such
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registration of transfer or exchange, the requesting Holder shall present or
surrender to the Registrar the Definitive Notes duly endorsed or accompanied by
a written instruction of transfer in form satisfactory to the Registrar duly
executed by such Holder or by his attorney, duly authorized in writing. In
addition, the requesting Holder shall provide any additional certifications,
documents and information, as applicable, pursuant to the provisions of this
Section 2.06(e).
(i) Restricted Definitive Notes to Restricted Definitive Notes. Any
Restricted Definitive Note may be transferred to and registered in the name of
Persons who take delivery thereof in the form of a Restricted Definitive Note if
the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A under the
Securities Act, then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903 or Rule 904,
then the transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof; and
(C) if the transfer will be made pursuant to any other exemption from
the registration requirements of the Securities Act, then the transferor
must deliver a certificate in the form of Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item (3)
thereof, if applicable.
(ii) Restricted Definitive Notes to Unrestricted Definitive Notes. Any
Restricted Definitive Note may be exchanged by the Holder thereof for an
Unrestricted Definitive Note or transferred to a Person or Persons who take
delivery thereof in the form of an Unrestricted Definitive Note if:
(A) such exchange or transfer is effected pursuant to the Exchange
Offer in accordance with the Registration Rights Agreement and the Holder,
in the case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not (1) a
Broker-Dealer, (2) a Person participating in the distribution of the
Exchange Notes or (3) a Person who is an affiliate (as defined in Rule 144)
of the Company;
(B) any such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement;
(C) any such transfer is effected by a Broker-Dealer pursuant to the
Exchange Offer Registration Statement in accordance with the Registration
Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive Notes proposes to
exchange such Notes for an Unrestricted Definitive Note, a certificate
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from such Holder in the form of Exhibit C hereto, including the
certifications in item (1)(a) thereof; or
(2) if the Holder of such Restricted Definitive Notes proposes to
transfer such Notes to a Person who shall take delivery thereof in the
form of an Unrestricted Definitive Note, a certificate from such
Holder in the form of Exhibit B hereto, including the certifications
in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar
so requests or the Applicable Procedures so require, an Opinion of Counsel
in form reasonably acceptable to the Company to the effect that such
exchange or transfer is in compliance with the Securities Act, that the
restrictions on transfer contained herein and in the Private Placement
Legend are not required in order to maintain compliance with the Securities
Act, and such Restricted Definitive Note is being exchanged or transferred
in compliance with any applicable blue sky securities laws of any State of
the United States.
(iii) Unrestricted Definitive Notes to Unrestricted Definitive Notes. A
Holder of Unrestricted Definitive Notes may transfer such Notes to a Person who
takes delivery thereof in the form of an Unrestricted Definitive Note. Upon
receipt of a request for such a transfer, the Registrar shall register the
Unrestricted Definitive Notes pursuant to the instructions from the Holder
thereof. Unrestricted Definitive Notes cannot be exchanged for or transferred to
Persons who take delivery thereof in the form of a Restricted Definitive Note.
(f) Exchange Offer. Upon the consummation of an Exchange Offer, the Company
shall issue and, upon receipt of an Authentication Order in accordance with
Section 2.02, the Trustee shall authenticate (i) one or more Unrestricted Global
Notes in an aggregate principal amount equal to the principal amount of the
beneficial interests in the Restricted Global Notes tendered for acceptance by
Persons that certify in the applicable Letter of Transmittal that (x) they are
not Broker-Dealers, (y) they are not participating in the distribution of the
Exchange Notes or (z) they are not affiliates (as defined in Rule 144) of the
Company, and accepted for exchange in the Exchange Offer and (ii) Definitive
Notes in an aggregate principal amount equal to the principal amount of the
Restricted Definitive Notes accepted for exchange in the Exchange Offer.
Concurrently with the issuance of such Notes, the Trustee shall cause the
aggregate principal amount of the applicable Restricted Global Notes to be
reduced accordingly, and the Company shall execute and the Trustee shall
authenticate and deliver to the Persons designated by the Holders of Definitive
Notes so accepted Definitive Notes in the appropriate principal amount.
(g) Legends. The following legends shall appear on the face of all Global
Notes and Definitive Notes issued under this Indenture unless specifically
stated otherwise in the applicable provisions of this Indenture.
(i) Private Placement Legend.
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(A) Except as permitted by subparagraph (B) below, each Global Note
and each Definitive Note (and all Notes issued in exchange therefor or
substitution thereof) shall bear the legend in substantially the following
form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT
BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT
OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (a) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (b) IT IS NOT A U.S. PERSON AND IS ACQUIRING THE
NOTE EVIDENCED HEREBY IN AN OFFSHORE TRANSACTION, (2) AGREES THAT IT
WILL NOT, WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS
SECURITY RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (a) TO THE
COMPANY OR ANY SUBSIDIARY THEREOF, (b) INSIDE THE UNITED STATES TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (c) INSIDE THE UNITED STATES TO AN ACCREDITED INVESTOR
(AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES
ACT) THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS
BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH LETTER
CAN BE OBTAINED FROM THE TRUSTEE FOR THIS SECURITY), (d) OUTSIDE THE
UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904
OF REGULATION S UNDER THE SECURITIES ACT, (e) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES
ACT (IF AVAILABLE), OR (f) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO
EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY
TRANSFER OF THIS SECURITY WITHIN ONE YEAR AFTER THE ORIGINAL ISSUANCE
OF THIS SECURITY, IF THE PROPOSED TRANSFEREE IS AN ACCREDITED
INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH THE TRUSTEE
AND THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT
SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
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SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION,"
"UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT."
(B) Notwithstanding the foregoing, any Global Note or Definitive Note
issued pursuant to subparagraphs (b)(iv), (c)(ii), (c)(iii), (d)(ii),
(d)(iii), (e)(ii), (e)(iii) or (f) to this Section 2.06 (and all Notes
issued in exchange therefor or substitution thereof) shall not bear the
Private Placement Legend.
(ii) Global Note Legend. Each Global Note shall bear a legend in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS
MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL
NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a)
OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE
FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS
GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR
WRITTEN CONSENT OF THE COMPANY."
(iii) Regulation S Temporary Global Note Legend. The Regulation S Temporary
Global Note shall bear a legend in substantially the following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES,
ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER
NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL
BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON."
(h) Cancellation and/or Adjustment of Global Notes. At such time as all
beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
cancelled in whole and not in part, each such Global Note shall be returned to
or retained and cancelled by the Trustee in accordance with Section 2.11 hereof.
At any time prior to such cancellation, if any beneficial interest in a Global
Note is exchanged for or transferred to a Person who will take delivery thereof
in the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount of Notes represented by such Global Note shall be
reduced accordingly and an endorsement shall be made on such Global Note, by the
Trustee or by the Depositary at the direction of the Trustee, to
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reflect such reduction; and if the beneficial interest is being exchanged for or
transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Note, such other Global Note shall be
increased accordingly and an endorsement shall be made on such Global Note, by
the Trustee or by the Depositary at the direction of the Trustee, to reflect
such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Global Notes and
Definitive Notes upon Company's Order or at the Registrar's request.
(ii) No service charge shall be made to a holder of a beneficial
interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer taxes
or similar governmental charge payable upon exchange or transfer pursuant
to Sections 2.10, 3.07, 3.10, 4.16 and 9.05 hereof).
(iii) The Registrar shall not be required to register the transfer of
or exchange any Note selected for redemption in whole or in part, except
the unredeemed portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive Notes
shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Global Notes
or Definitive Notes surrendered upon such registration of transfer or
exchange.
(v) The Company shall not be required (A) to issue, to register the
transfer of or to exchange Notes during a period beginning at the opening
of business 15 days before the day of any selection of Notes for redemption
under Section 3.03 hereof and ending at the close of business on the day of
selection, (B) to register the transfer of or to exchange any Note so
selected for redemption in whole or in part, except the unredeemed portion
of any Note being redeemed in part or (C) to register the transfer of or to
exchange a Note between a record date and the next succeeding Interest
Payment Date.
(vi) Prior to due presentment for the registration of a transfer of
any Note, the Trustee, any Agent and the Company may deem and treat the
Person in whose name any Note is registered as the absolute owner of such
Note for the purpose of receiving payment of principal of and interest on
such Notes and for all other purposes, and none of the Trustee, any Agent
or the Company shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and Definitive Notes
in accordance with the provisions of Section 2.02 hereof.
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(viii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.06 to
effect a transfer or exchange may be submitted by facsimile.
SECTION 2.07. Replacement Notes
If any mutilated Note is surrendered to the Trustee or the Company or the
Trustee and the Company receive evidence to their satisfaction of the
destruction, loss or theft of any Note, the Company shall issue and the Trustee,
upon the written order of the Company signed by two Officers of the Company,
shall authenticate a replacement Note if the Trustee's and the Company's
requirements are met. If required by the Trustee or the Company, an indemnity
bond must be supplied by the Holder that is sufficient in the judgment of the
Trustee and the Company to protect the Company, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer if a Note is
replaced. The Company and the Trustee may charge for their expenses in replacing
a Note. If after the delivery of such new Note, a bona fide purchaser of the
original Note in lieu of which such new Note was issued presents for payment
such original Note, the Company and the Trustee shall be entitled to recover
such new Note from the person to whom it was delivered or any transferee
thereof, except a bona fide purchaser, and shall be entitled to recover upon the
security or indemnity provided therefor to the extent of any loss, damage, cost
or expense incurred by the Company or the Trustee in connection therewith.
Every replacement Note is an additional obligation of the Company and shall
be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Notes duly issued hereunder.
SECTION 2.08. Outstanding Notes
The Notes outstanding at any time are all the Notes authenticated by the
Trustee except for those cancelled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the
Trustee hereunder in accordance with the provisions hereof, and those described
in this Section 2.08 as not outstanding. Except as set forth in Section 2.09
hereof, a Note does not cease to be outstanding because either of the Company or
an Affiliate of the Company holds a Note.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section 4.01
hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent segregates and holds in trust, in accordance with this
Indenture, on the Redemption Date or maturity date, money sufficient to pay all
principal, premium, if any, interest and Liquidated Damages, if any, payable on
that date on the Notes (or the portion thereof to be redeemed or maturing, as
the case may be), then on and after that date such Notes (or a portion thereof)
shall be deemed to be no longer outstanding and shall cease to accrue interest.
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SECTION 2.09. Treasury Notes
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company or any Affiliate of the Company, shall be considered as though not
outstanding, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Notes that a Responsible Officer of the Trustee actually knows are so owned
shall be so disregarded. The Company shall notify the Trustee, in writing, when
the Company or any of its Affiliates repurchases or otherwise acquires Notes and
the aggregate principal amount of such Notes so repurchased or otherwise
acquired.
SECTION 2.10. Temporary Notes
Until certificates representing Notes are ready for delivery, the Company
may prepare and the Trustee upon receipt of an Authentication Order, shall
authenticate and deliver temporary Notes. Temporary Notes shall be substantially
in the form of definitive Notes but may have variations that the Company and the
Trustee consider appropriate for temporary Notes. Without unreasonable delay,
upon receipt of an Authentication Order, the Company shall prepare and the
Trustee shall authenticate and deliver definitive Notes in exchange for
temporary Notes.
Holders of temporary Notes shall be entitled to all of the rights, benefits
and privileges of this Indenture.
SECTION 2.11. Cancellation
The Company at any time may deliver Notes to the Trustee for cancellation.
The Registrar and Paying Agent shall forward to the Trustee any Notes
surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation, except as expressly
permitted by this Indenture. The Company may not issue new Notes to replace
Notes that it has redeemed or paid or that have been delivered to the Trustee
for cancellation. All cancelled Notes held by the Trustee shall be destroyed
(subject to the record retention requirement of the Exchange Act). Certification
of the destruction of all cancelled Notes shall be delivered to the Company. The
Company may not issue new Notes to replace Notes that it has paid or that have
been delivered to the Trustee for cancellation.
SECTION 2.12. Defaulted Interest
Interest on any Note which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Note is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Note which is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date and interest on such defaulted
interest at the applicable interest rate borne by the Notes, to the extent
lawful (such defaulted interest (and interest thereon) herein collectively
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder; and
such Defaulted Interest shall be paid by the Company to the Persons in whose
names the Notes are registered at the close
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of business on a Special Record Date for the payment of such Defaulted Interest,
which shall be fixed in the following manner. The Company shall give the Trustee
at least 15 days' written notice (unless a shorter period is acceptable to the
Trustee for its convenience) of the amount of Defaulted Interest proposed to be
paid on each Note and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held by the Trustee in
trust for the benefit of the Persons entitled to such Defaulted Interest as is
provided in this Section 2.12. Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall not be more than 15
days and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special Record
Date. In the name and at the expense of the Company, the Trustee shall cause
notice of the proposed payment of such Defaulted Interest and the Special Record
Date therefor to be mailed, first-class postage prepaid, to each Holder at his
address as it appears in the Registrar, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Notes are registered at
the close of business on such Special Record Date.
Subject to the foregoing provisions of this Section 2.12, each Note
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Note shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Note.
SECTION 2.13. CUSIP Number
The Company in issuing the Notes shall use a CUSIP number, and the Trustee
shall use the CUSIP number in notices of redemption or exchange as a convenience
to Holders of Notes; provided, however, that no representation is hereby deemed
to be made by the Trustee as to the correctness or accuracy of the CUSIP number
printed in the notice or on the certificates representing the Notes, and that
reliance may be placed only on the other identification numbers printed on the
certificates representing the Notes. The Company will promptly notify the
Trustee of any change in a CUSIP number.
SECTION 2.14. Deposit of Moneys
On each Interest Payment Date and each date on which payments in respect of
the Notes are required to be made pursuant to the terms of this Indenture, the
Company shall, not later than 12:00 noon (New York City time), deposit with the
Paying Agent in immediately available funds money sufficient to make any cash
payments due on such date in a timely manner which permits the Paying Agent to
remit payment to the Holders on such date.
SECTION 2.15. Issuance of Additional Notes
The Company shall be entitled to issue Additional Notes under this
Indenture which shall have identical terms as the Notes issued on November 21,
2001, other than with respect to the
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date of issuance, issue price and amount of interest payable on the first
payment date applicable thereto (and, if such Additional Notes shall be issued
in the form of Exchange Notes, other than with respect to transfer
restrictions); provided, that such issuance is not prohibited by Section 4.09
hereof.
With respect to any Additional Notes, the Company shall set forth in a
resolution of the Board of Directors and in an Officers' Certificate, a copy of
each which shall be delivered to the Trustee, the following information:
(A) the aggregate principal amount of such Additional Notes to be
authenticated and delivered pursuant to this Indenture;
(B) the issue price, the issue date and the CUSIP number of such
Additional Notes and the amount of interest payable on the first payment
date applicable thereto; provided, however, that no Additional Notes may be
issued at a price that would cause such Additional Notes to have "original
issue discount" within the meaning of Section 1273 of the Code;
(C) whether such Additional Notes shall be transfer restricted
securities and issued in the form of Notes or shall be registered
securities issued in the form of Exchange Notes as set forth in Section
2.06 hereof; and
Any Additional Notes shall vote, together with any Notes previously issued
pursuant to this Indenture, as one class for all matters.
ARTICLE 3
REDEMPTION AND OFFERS TO PURCHASE
SECTION 3.01. Applicability of Article
Redemption of Notes at the election of the Company shall be made in
accordance with this Article 3.
SECTION 3.02. Election to Redeem; Notice to Trustee
The election of the Company to redeem any Notes pursuant to Section 3.08
hereof shall be evidenced by a Board Resolution. In case of any redemption at
the election of the Company, the Company shall, simultaneously with providing
the notice to Holders specified in Section 3.08 hereof, notify the Trustee of
such Redemption Date and of the principal amount of Notes intended to be
redeemed.
SECTION 3.03. Selection of Notes to Be Redeemed
If less than all of the Notes are to be redeemed at any time, selection of
Notes for redemption shall be made by the Trustee in compliance with the
requirements of the principal national securities exchange, if any, on which the
Notes are listed or, if the Notes are not so
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listed, on a pro rata basis, by lot or by such method as the Trustee shall deem
fair and appropriate; provided that no Notes of $1,000 or less shall be redeemed
in part.
The Trustee shall promptly notify the Company and the Registrar (if other
than the Trustee) in writing of the Notes selected for redemption and, in the
case of any Notes selected for partial redemption, the principal amount thereof
to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to redemption of Notes shall relate, in the case of any
Note redeemed or to be redeemed only in part, to the portion of the principal
amount of such Note which has been or is to be redeemed.
SECTION 3.04. Notice of Redemption
Notices of redemption shall be mailed by first class mail, postage prepaid,
at least 30 but not more than 60 days before the Redemption Date to each Holder
of Notes to be redeemed at such Holder's registered address. If any Note is to
be redeemed in part only, the notice of redemption that relates to such Note
shall state the portion of the principal amount thereof to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price, separately stating the amount of any accrued and
unpaid interest and Liquidated Damages, if any, to be paid in connection with
the redemption;
(3) if less than all Notes then outstanding are to be redeemed, the
identification (and, in the case of a Note to be redeemed in part, principal
amount) of such Note to be redeemed;
(4) that on the Redemption Date the Redemption Price, plus accrued and
unpaid interest and Liquidated Damages, if any, thereon to the Redemption Date,
will become due and payable upon each such Note or portion thereof, and that
(unless the Company shall default in payment of the Redemption Price and accrued
interest and Liquidated Damages, if any, thereon) interest thereon shall cease
to accrue on or after said date;
(5) the place or places where such Notes are to be surrendered for payment
of the Redemption Price and accrued interest and Liquidated Damages, if any,
thereon;
(6) that Notes called for redemption must be surrendered to the Paying
Agent to collect the Redemption Price, plus accrued and unpaid interest and
Liquidated Damages, if any, thereon to the Redemption Date;
(7) the CUSIP number, if any, relating to such Notes; and
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(8) in the case of a Note to be redeemed in part, the principal amount of
such Note to be redeemed and that after the Redemption Date upon surrender of
such Note, a new Note or Notes in the aggregate principal amount equal to the
unredeemed portion thereof will be issued.
At the Company's request, the Trustee shall give the notice of redemption
in the name of the Company and at the Company's expense: provided, however, that
the Company shall deliver to the Trustee, at least 5 business days prior to the
date the Company is requesting notice be given to the Holders (unless a shorter
notice period shall be satisfactory to the Trustee for its convenience), an
Officers' Certificate requesting that the Trustee give such notice and setting
forth the information to be stated in such notice as provided in the preceding
paragraph.
SECTION 3.05. Deposit of Redemption Price
On or prior to any Redemption Date, the Company shall deposit with the
Trustee (to the extent not already held by the Trustee) or with the Paying Agent
an amount of money in same day funds (or New York Clearing House funds if such
deposit is made prior to the applicable Redemption Date) sufficient to pay the
Redemption Price of, and accrued and interest and Liquidated Damages, if any, to
the Redemption Date, on all Notes or portions thereof which are to be redeemed
on that date.
SECTION 3.06. Notes Payable on Redemption Date
Notice of redemption having been given as aforesaid, the Notes so to be
redeemed shall, on the Redemption Date, become due and payable at the Redemption
Price therein specified, plus accrued and unpaid interest and Liquidated
Damages, if any, thereon to the Redemption Date, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest and Liquidated Damages, if any, thereon) such Notes shall cease
to bear interest and Liquidated Damages, if any. Any such Note surrendered for
redemption in accordance with said notice shall be paid by the Company at the
Redemption Price, plus accrued and unpaid interest and Liquidated Damages, if
any, thereon to the Redemption Date; provided, however, that installments of
interest and Liquidated Damages, if any, whose Stated Maturity is on or prior to
the Redemption Date shall be payable to the Holders of such Notes, registered as
such on the relevant Regular Record Dates according to the terms and provisions
of Section 2.12 hereof.
If any Note called for redemption shall not be so paid in accordance with
the terms hereof, the principal thereof (and premium, if any, thereon) shall,
until paid, bear interest and Liquidated Damages, if any, from the Redemption
Date at the rate borne by such Note.
SECTION 3.07. Notes Redeemed in Part
Any Note which is to be redeemed only in part shall be surrendered at the
office or agency of the Company maintained for such purpose pursuant to Section
4.02 hereof (with, if the Company, the Registrar or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company, the Registrar or the Trustee duly executed by, the Holder thereof or
his attorney duly authorized in writing), and a new Note in principal amount
equal to the unredeemed portion will be issued in the name of the Holder thereof
upon
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cancellation of the original Note. On and after the Redemption Date, unless the
Company defaults in payment of the Redemption Price and accrued interest and
Liquidated Damages, if any, thereon, interest and Liquidated Damages, if any,
shall cease to accrue on Notes or portions thereof called for redemption.
SECTION 3.08. Optional Redemption
Except as described below, the Notes are not redeemable at the Company's
option prior to May 15, 2004. Thereafter, the Notes will be subject to
redemption at any time at the option of the Company, in whole or in part, upon
not less than 30 nor more than 60 days' notice, at the redemption prices
(expressed as percentages of principal amount) set forth below, plus accrued and
unpaid interest and Liquidated Damages, if any, thereon to the applicable
Redemption Date, if redeemed during the twelve-month period beginning on May 15
of the years indicated below:
Year Percentage
---- ----------
2004 ........................... 104.375%
2005 ........................... 102.916%
2006 ........................... 101.458%
2007 and thereafter ............ 100.000%
Notwithstanding the foregoing, at any time on or prior to May 15, 2002, the
Company may on any one or more occasions redeem up to 35% of the aggregate
principal amount of the Notes theretofore issued under this Indenture at a
redemption price equal to 108.75% of the principal amount thereof, plus accrued
and unpaid interest and Liquidated Damages, if any, thereon, to the Redemption
Date, with the net cash proceeds of one or more Equity Offerings; provided that
(i) at least 65% of the aggregate principal amount of the Notes theretofore
issued remain outstanding immediately following each such redemption and (ii)
such redemption shall occur within 60 days of the closing of any such Equity
Offering.
In addition, at any time prior to May 15, 2004, following the occurrence of
a Change of Control, the Notes will be subject to redemption at the option of
the Company, in whole or in part, upon not less than 30 nor more than 60 days'
notice given within 30 days following such Change of Control, at the Make-Whole
Price, plus accrued and unpaid interest and Liquidated Damages, if any, thereon
to the applicable Redemption Date.
SECTION 3.09. Mandatory Redemption
Except as set forth under Sections 3.10, 4.16 and 4.17 hereof, the Company
shall not be required to make any mandatory redemption or sinking fund payments
with respect to the Notes.
SECTION 3.10. Offer to Purchase by Application of Excess Proceeds
In the event that, pursuant to Section 4.16 hereof, the Company shall be
required to make an offer to all Holders of Notes to purchase Notes (an "Asset
Sale Offer"), it shall follow the procedures specified below.
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The Asset Sale Offer shall remain open for at least 30 and not more than 40
days, except to the extent that a longer period is required by applicable law
(the "Offer Period"). On a date within five Business Days after the termination
of the Offer Period (the "Purchase Date"), the Company shall purchase the
principal amount of Notes required to be purchased pursuant to Section 4.16
hereof (the "Offer Amount") or, if less than the Offer Amount has been tendered,
all Notes tendered in response to the Asset Sale Offer.
The Company shall comply with any tender offer rules under the Exchange Act
which may then be applicable, including Rule 14e-1, in connection with any offer
required to be made by the Company to repurchase the Notes as a result of an
Asset Sale Offer.
If the Purchase Date is on or after a Regular Record Date and on or before
the related Interest Payment Date, any accrued and unpaid interest and
Liquidated Damages, if any, shall be paid to the Person in whose name a Note is
registered at the close of business on such Regular Record Date, and no
additional interest or Liquidated Damages, if any, shall be payable to Holders
who tender Notes pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Company shall send, by
first class mail, a notice to each of the Holders, with a copy to the Trustee.
The notice shall contain all instructions and materials necessary to enable such
Holders to tender Notes pursuant to the Asset Sale Offer. The Asset Sale Offer
shall be made to all Holders. The notice, which shall govern the terms of the
Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this Section 3.10
and Section 4.16 hereof and the length of time the Asset Sale Offer shall remain
open;
(b) the Offer Amount, the purchase price, separately stating the amount of
any accrued and unpaid interest and Liquidated Damages, if any, and the Purchase
Date;
(c) that any Note not tendered or accepted for payment shall remain
outstanding and continue to accrue interest and Liquidated Damages, if any;
(d) that, unless the Company defaults in making such payment, any Note
accepted for payment pursuant to the Asset Sale Offer shall cease to accrue
interest or Liquidated Damages, if any, on the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to any Asset
Sale Offer shall be required to surrender the Note, with the form entitled
"Option of Holder to Elect Purchase" on the reverse of the Note completed, or
transfer by book-entry transfer, to the Company, a depositary, if appointed by
the Company, or a Paying Agent at the address specified in the notice not later
than the last Business Day of the Offer Period;
(f) that Holders shall be entitled to withdraw their tendered Notes and
their election to require the Company to purchase such Notes, provided that the
Company, the depositary or the Paying Agent, as the case may be, receives, not
later than the close of business on the last Business Day of the Offer Period, a
telegram, telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the
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Notes the Holder tendered for purchase, and a statement that such Holder is
withdrawing his tendered Notes and his election to have such Notes purchased;
(g) that, if the aggregate principal amount of Notes properly tendered by
Holders exceeds the Offer Amount, the Trustee shall select the Notes to be
purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by the Trustee so that only Notes in denominations of $1,000, or
integral multiples thereof, shall be purchased); and
(h) that Holders whose Notes are being purchased only in part shall be
issued new Notes equal in principal amount to the unpurchased portion of the
Notes surrendered (or transferred by book-entry transfer).
On or before noon (New York City time) on each Purchase Date, the Company
shall irrevocably deposit with the Trustee or Paying Agent in immediately
available funds the aggregate purchase price with respect to a principal amount
of Notes equal to the Offer Amount (of, if less than the Offer Amount has been
properly tendered, such lesser amount as shall equal the principal amount of
Notes properly tendered), together with accrued and unpaid interest and
Liquidated Damages, if any, thereon to the Purchase Date, to be held for payment
in accordance with the terms of this Section 3.10. On the Purchase Date, the
Company shall, to the extent lawful, (i) accept for payment, on a pro rata basis
to the extent necessary, the Offer Amount of Notes or portions thereof tendered
pursuant to the Asset Sale Offer, or if less than the Offer Amount has been
tendered, all Notes tendered, (ii) deliver or cause the Paying Agent or
depositary, as the case may be, to deliver to the Trustee Notes so accepted and
(iii) deliver to the Trustee an Officers' Certificate stating that such Notes or
portions thereof were accepted for payment by the Company in accordance with the
terms of this Section 3.10. The Company, the depositary or the Paying Agent, as
the case may be, shall promptly (but in any case not later than three Business
Days after the Purchase Date) mail or deliver to each tendering Holder whose
Notes are to be purchased an amount equal to the purchase price of the Notes
tendered by such Holder and accepted by the Company for purchase, plus accrued
and unpaid interest and Liquidated Damages, if any, thereon to the Purchase
Date, and the Company shall promptly issue a new Note, and the Trustee, upon
written request from the Company, shall authenticate and mail or deliver such
new Note to such Holder, equal in principal amount to any unpurchased portion of
the Note surrendered. Any Note not so accepted shall be promptly mailed or
delivered by the Company to the Holder thereof.
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Notes
The Company shall pay or cause to be paid the principal of, premium, if
any, and interest on, the Notes on the dates and in the manner provided in the
Notes and in this Indenture. Principal, premium, if any, and interest shall be
considered paid on the date due if the Paying Agent, if other than the Company
or any of its Subsidiaries or Affiliates, holds as of 12:00 noon (New York City
time) on the due date money deposited by the Company in immediately
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available funds and designated for and sufficient to pay all principal, premium
and interest then due. The Company shall pay all Liquidated Damages, if any, in
the same manner on the dates and in the amounts set forth in the Registration
Rights Agreement. If any Liquidated Damages become payable, the Company shall
not later than three Business Days prior to the date that any payment of
Liquidated Damages is due (i) deliver an Officers' Certificate to the Trustee
setting forth the amount of Liquidated Damages payable to Holders and (ii)
instruct the Paying Agent to pay such amount of Liquidated Damages to Holders
entitled to receive such Liquidated Damages.
The Company shall pay interest (including post-petition interest under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time on
demand at a rate equal to 1% per annum in excess of the then applicable interest
rate on the Notes to the extent lawful; the Company shall pay interest
(including post-petition interest under any Bankruptcy Law) on overdue
installments of interest and Liquidated Damages (without regard to any
applicable grace period) from time to time on demand at the same rate to the
extent lawful. Interest will be computed on the basis of a 360-day year
comprised of twelve 30-day months.
SECTION 4.02. Maintenance of Office or Agency
The Company will maintain, in The City of New York, an office or agency
(which may be an office of the Trustee or Registrar) where Notes may be
presented or surrendered for payment, where Notes may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Notes and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
The Company may from time to time designate one or more other offices or
agencies (in or outside of The City of New York) where the Notes may be
presented or surrendered for any or all such purposes, and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in The City of New York for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
SECTION 4.03. Money for Security Payments to be Held in Trust
Whenever the Company shall have one or more Paying Agents for the Notes, it
will, on or before each due date of the principal of, premium, if any, or
interest or Liquidated Damages, if any, on any Notes, deposit with a Paying
Agent a sum in same day funds (or New York Clearing House funds if such deposit
is made prior to the date on which such deposit is required to be made)
sufficient to pay the principal, premium, if any, or interest or Liquidated
Damages, if any, so becoming due (or at the option of the Company, payment of
interest and Liquidated Damages, if any, may be made by check mailed to the
Holders of the Notes at their respective addresses set
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forth in the register of Holders of Notes; provided that all payments on the
Global Notes and all payments of interest and Liquidated Damages, if any, on the
Definitive Notes, the holders of which have given wire transfer instructions to
the Company or the Paying Agent at least ten Business Days prior to the
applicable payment date, shall be made by wire transfer in same day funds), such
sum to be held in trust for the benefit of the Persons entitled to such
principal, premium or interest or Liquidated Damages, if any, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of
such action or any failure so to act.
The Company will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section 4.03, that such
Paying Agent will:
(a) hold all sums held by it for the payment of the principal of, premium,
if any, or interest or Liquidated Damages, if any, on Notes in trust
for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or any other
obligor upon the Notes) in the making of any payment of principal,
premium, if any, or interest or Liquidated Damages, if any;
(c) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent; and
(d) acknowledge, accept and agree to comply in all respects with the
provisions of this Indenture relating to the duties, rights and
obligations of such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of, premium, if any, or
interest or Liquidated Damages, if any, on any Note and remaining unclaimed for
two years after such principal, premium, if any, or interest or Liquidated
Damages, if any, has become due and payable shall be paid to the Company on
Company Request or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Note shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, shall at the expense of the Company cause notice to be
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promptly sent to each Holder that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such notification, any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 4.04. Reports
(a) Whether or not required by the rules and regulations of the SEC, so
long as any Notes are outstanding, the Company shall furnish to the Holders of
Notes (i) all quarterly and annual financial information that would be required
to be contained in a filing with the SEC on Forms 10-Q and 10-K if the Company
were required to file such Forms and, with respect to the annual information
only, a report thereon by the Company's certified independent accountants and
(ii) all current reports that would be required to be filed with the SEC on Form
8-K if the Company were required to file such reports. In addition, whether or
not required by the rules and regulations of the SEC, the Company shall file a
copy of all such information and reports with the SEC for public availability
(unless the SEC will not accept such a filing) and make such information
available to securities analysts and prospective investors upon request. The
Company and its Restricted Subsidiaries shall, for so long as any Notes remain
outstanding, furnish to the Holders and to securities analysts and prospective
investors, upon their request, the information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act. The Company shall also comply with
the provisions of TIA ss. 314(a).
(b) If the Company instructs the Trustee to distribute any of the documents
described in clause (a) above to the Holders of Notes, the Company shall provide
the Trustee with a sufficient number of copies of all documents that the Company
may be required to deliver to the Holders of Notes under this Section 4.04. Any
such distribution by the Trustee pursuant to this clause (b) shall be at the
expense of the Company.
SECTION 4.05. Compliance Certificate
(a) The Company and each Guarantor shall deliver to the Trustee, within 120
days after the end of each fiscal year ending after the date hereof, an
Officers' Certificate stating, as to each Officer signing such certificate, that
to the best of his or her knowledge each entity is not in default in the
performance or observance of any terms, provisions and conditions of this
Indenture (or, if a Default or Event of Default shall exist, describing all such
Defaults or Events of Default of which he or she may have knowledge and what
action the Company is taking or proposes to take with respect thereto) and that
to the best of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of or interest
or Liquidated Damages, if any, on the Notes is prohibited or if such event has
occurred, a description of the event and what action the Company is taking or
proposes to take with respect thereto. For purposes of this Section 4.05, such
compliance shall be determined without regard to any period of grace or
requirement of notice under this Indenture.
(b) The Company will, so long as any of the Notes are outstanding within
five Business Days, upon becoming aware of any Default or Event of Default,
deliver to the Trustee an Officers' Certificate specifying such Default, Event
of Default and what action the Company is taking or proposes to take with
respect thereto.
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SECTION 4.06. Taxes
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (a) all material taxes, assessments and
governmental charges levied or imposed upon it or any Subsidiary or upon the
income, profits or property of the Company or any of its Subsidiaries and (b)
all material lawful claims for labor, materials and supplies, which, if unpaid,
might by law become a Lien upon the property of the Company or any of its
Subsidiaries that could produce a material adverse effect on the consolidated
financial condition of the Company; provided, however, that the Company shall
not be required to pay or discharge or cause to be paid or discharged any such
tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings and in respect of which
appropriate reserves (in the good faith judgment of management of the Company)
are being maintained in accordance with GAAP.
SECTION 4.07. Stay, Extension and Usury Laws
The Company covenants (to the extent that it may lawfully do so) that it
shall not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law has
been enacted.
SECTION 4.08. Corporate Existence; Maintenance of Properties and Insurance
Subject to Article 5 hereof, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect (i) its corporate
existence, and the corporate, partnership or other existence of each of its
Restricted Subsidiaries, in accordance with the respective organizational
documents (as the same may be amended from time to time) of the Company or any
such Restricted Subsidiary and (ii) its (and its Restricted Subsidiaries')
rights (charter and statutory), licenses and franchises; provided, however, that
the Company shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any of its
Restricted Subsidiaries, if the Board of Directors or management of the Company
shall determine in good faith that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Subsidiaries,
taken as a whole, and that the loss thereof is not adverse in any material
respect to the Holders of Notes.
With such exceptions, if any, as are not material in the aggregate and are
not adverse in any material respect to the Holders of Notes, the Company shall,
and shall cause each of its Subsidiaries to, maintain its properties in good
working order and condition (subject to ordinary wear and tear) and make all
reasonably necessary repairs, renewals, replacements, additions and improvements
required for it to actively conduct and carry on its business.
The Company shall maintain insurance against loss or damage of the kinds
that, in the good faith judgment of the Company, are adequate and appropriate
for the conduct of the
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business of the Company and its Subsidiaries in a prudent manner, with reputable
insurers or with the government of the United States of America or an agency or
instrumentality thereof, in such amounts, with such deductibles, and by such
methods as shall be customary, in the good faith judgment of the Company, for
companies similarly situated in the industry.
SECTION 4.09. Limitation on the Incurrence of Indebtedness and Issuance of
Preferred Stock
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable, contingently or otherwise,
with respect to (collectively, "incur") any Indebtedness (including Acquired
Debt) and the Company shall not permit any of its Restricted Subsidiaries to
issue any shares of Preferred Stock (other than to the Company or a Restricted
Subsidiary of the Company); provided, however, that the Company and the
Restricted Subsidiaries may incur Indebtedness (including Acquired Debt) if the
Consolidated Interest Coverage Ratio for the Company's most recently ended four
full fiscal quarters for which internal financial statements are available
immediately preceding the date on which such additional Indebtedness is incurred
would have been equal to or greater than 2 to 1, determined on a pro forma
basis, as if the additional Indebtedness had been incurred at the beginning of
such four-quarter period and no Event of Default shall have occurred and be
continuing after giving effect on a pro forma basis to such incurrence.
The provisions of the first paragraph of this Section 4.09 will not apply
to the incurrence of any of the following items of Indebtedness (collectively,
"Permitted Debt"):
(i) the incurrence by the Company and its Restricted Subsidiaries of
Indebtedness under the Credit Agreement in an aggregate amount outstanding
(with letters of credit being deemed for all purposes of this Indenture to
have a principal amount equal to the maximum potential liability of the
Company and its Restricted Subsidiaries in respect thereof) at any time not
to exceed the greater of (x) $450 million and (y) 3.5 times Consolidated
Resort EBITDA for the Company's most recently ended four full fiscal
quarters for which internal financial statements are available immediately
preceding the date on which such Indebtedness is being incurred less, in
each case, the aggregate amount of such Indebtedness permanently repaid
with the Net Proceeds of any Asset Sale;
(ii) the incurrence by the Company and its Restricted Subsidiaries of
Indebtedness represented by (x) the Notes (including the Exchange Notes),
the Guarantees thereof and this Indenture in the principal amount of Notes
originally issued on the Closing Date and (y) the Existing Notes, the
Guarantees thereof and the Existing Note Indenture;
(iii) the incurrence by the Company and its Restricted Subsidiaries of
the Existing Indebtedness;
(iv) the incurrence by the Company and its Restricted Subsidiaries of
additional Indebtedness (other than Hedging Obligations) after May 11, 1999
in an aggregate principal amount not to exceed $50 million at any time
outstanding;
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(v) the incurrence by the Company and its Restricted Subsidiaries of
Indebtedness after May 11, 1999 in connection with the acquisition of
assets or a new Restricted Subsidiary (including Indebtedness that was
incurred by the prior owner of such assets or by such Restricted Subsidiary
prior to such acquisition by the Company and its Restricted Subsidiaries);
provided that the aggregate principal amount of Indebtedness incurred after
May 11, 1999 pursuant to this clause (v) does not exceed $20 million at any
time outstanding;
(vi) the incurrence by the Company and its Restricted Subsidiaries of
Permitted Refinancing Indebtedness;
(vii) the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the Company and
its Restricted Subsidiaries; provided, however, that any subsequent
issuance or transfer of Equity Interests that results in any such
Indebtedness being held by a Person other than the Company or a Restricted
Subsidiary of the Company, and any sale or other transfer of any such
Indebtedness to a Person that is not the Company or a Restricted Subsidiary
of the Company, shall be deemed, in each case, to constitute an incurrence
of such Indebtedness by the Company or such Restricted Subsidiary, as the
case may be;
(viii) the incurrence by the Company or any of its Restricted
Subsidiaries of Hedging Obligations incurred for the purpose of hedging
against fluctuations in currency values or for the purpose of fixing or
hedging interest rate risk with respect to any floating rate Indebtedness
of the Company or any of its Restricted Subsidiaries permitted by this
Indenture; provided that the notional principal amount of any Hedging
Obligations does not significantly exceed the principal amount of
Indebtedness to which such agreement relates;
(ix) the Guarantee by the Company or any of its Restricted
Subsidiaries of Indebtedness of the Company or a Restricted Subsidiary of
the Company permitted by this Indenture;
(x) the incurrence of Indebtedness arising from agreements providing
for indemnification, adjustment of purchase price, earn out or other
similar obligations, in each case incurred in connection with the
acquisition or disposition of any business or assets or subsidiaries of the
Company permitted by this Indenture;
(xi) the Indebtedness incurred from time to time under a revolving
credit facility of SSI Venture, LLC in an aggregate amount outstanding at
any time not to exceed $10 million, so long as SSI Venture, LLC remains a
Restricted Subsidiary of the Company; and
(xii) the incurrence by the Company and its Restricted Subsidiaries of
Indebtedness not covered by any other clause of this paragraph which is
outstanding on the Closing Date and was incurred subsequent to May 11, 1999
in compliance with the Existing Note Indenture.
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For purposes of determining the amount of any Indebtedness of any Person
under this Section 4.09, (a) the principal amount of any Indebtedness of such
Person arising by reason of such Person having granted or assumed a Lien on its
property to secure Indebtedness of another Person shall be the lower of the fair
market value of such property and the principal amount of such Indebtedness
outstanding (or committed to be advanced) at the time of determination; (b) the
amount of any Indebtedness of such Person arising by reason of such Person
having Guaranteed Indebtedness of another Person where the amount of such
Guarantee is limited to an amount less than the principal amount of the
Indebtedness so Guaranteed shall be such amount as so limited; and (c)
Indebtedness shall not include a non-recourse pledge by the Company or any of
its Restricted Subsidiaries of Investments in any Person that is not a
Restricted Subsidiary of the Company to secure the Indebtedness of such Person.
For purposes of determining compliance with this Section 4.09, in the event
that an item of Indebtedness meets the criteria of more than one of the
categories of Permitted Debt described in clauses (i) through (xi) above or is
entitled to be incurred pursuant to the first paragraph of this Section 4.09,
the Company, in its sole discretion, either (a) shall classify (and may later
reclassify) such item of Indebtedness in one of such categories in any manner
that complies with this Section 4.09 or (b) shall divide and classify (and may
later redivide and reclassify) such item of Indebtedness into more than one of
such categories pursuant to such first paragraph.
SECTION 4.10. Limitation on Restricted Payments
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, (i) declare or pay any dividend or make
any other payment or distribution on account of the Company's Equity Interests
(including, without limitation, any payment in connection with any merger or
consolidation involving the Company) or to any direct or indirect holders of the
Company's Equity Interests in their capacity as such (other than dividends or
distributions (a) payable in Equity Interests (other than Disqualified Stock) of
the Company, (b) payable in Capital Stock or assets of an Unrestricted
Subsidiary of the Company or (c) payable to the Company or any Restricted
Subsidiary of the Company); (ii) purchase, redeem or otherwise acquire or retire
for value (including, without limitation, in connection with any merger or
consolidation involving the Company) any Equity Interests of the Company, or any
Equity Interests of any of its Restricted Subsidiaries held by any Affiliate of
the Company (other than any such Equity Interests owned by the Company or any
Restricted Subsidiary of the Company, any Equity Interests then being issued by
the Company or a Restricted Subsidiary of the Company or any Investment in a
Person that, after giving effect to such Investment, is a Restricted Subsidiary
of the Company); (iii) make any payment on or with respect to, or purchase,
redeem, repay, defease or otherwise acquire or retire for value, any
Indebtedness of the Company or any Guarantor that is subordinated in right of
payment to the Notes or any Guarantee thereof, except a regularly scheduled
payment of interest or principal or sinking fund payment (other than the
purchase or other acquisition of such subordinated Indebtedness made in
anticipation of satisfying any sinking fund payment due within one year from the
date of acquisition); or (iv) make any Restricted Investment (all such payments
and other actions set forth in clauses (i) through (iv) above being collectively
referred to as "Restricted Payments"), unless, at the time of and after giving
effect to such Restricted Payment:
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(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof;
(b) the Company would, at the time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted Payment had
been made at the beginning of the applicable four-quarter period, have been
permitted to incur at least $1.00 of additional Indebtedness pursuant to
the Consolidated Interest Coverage Ratio test set forth in the first
paragraph of Section 4.09 hereof; and
(c) such Restricted Payment, together with the aggregate amount of all
other Restricted Payments declared or made by the Company and its
Restricted Subsidiaries after May 11, 1999 (without duplication and
excluding Restricted Payments permitted by clauses (ii) and (iii) of the
following paragraph), is less than the sum of (1) 50% of the Consolidated
Net Income of the Company for the period (taken as one accounting period)
from the beginning of the first fiscal quarter commencing after May 11,
1999 to the end of the Company's most recently ended fiscal quarter for
which internal financial statements are available at the time of such
Restricted Payment (or, if such Consolidated Net Income for such period is
a deficit, less 100% of such deficit); plus (2) 100% of the aggregate net
cash proceeds and the fair market value of any assets or property (as
determined in good faith by the Board of Directors of the Company) received
by the Company from the issue or sale since May 11, 1999 of Equity
Interests of the Company (other than Disqualified Stock), or of
Disqualified Stock or debt securities of the Company that have been
converted into such Equity Interests (other than Equity Interests or
Disqualified Stock or convertible debt securities sold to a Subsidiary of
the Company and other than Disqualified Stock or convertible debt
securities that have been converted into Disqualified Stock); plus (3) with
respect to Restricted Investments made after May 11, 1999, the net
reduction of such Restricted Investments as a result of (x) any disposition
of any such Restricted Investments sold or otherwise liquidated or repaid,
to the extent of the net cash proceeds and the fair market value of any
assets or property (as determined in good faith by the Board of Directors
of the Company) received, (y) dividends, repayment of loans or advances or
other transfers of assets to the Company or any Restricted Subsidiary of
the Company or (z) the portion (proportionate to the Company's interest in
the equity of a Person) of the fair market value of the net assets of an
Unrestricted Subsidiary or other Person immediately prior to the time such
Unrestricted Subsidiary or other Person is designated or becomes a
Restricted Subsidiary of the Company (but only to the extent not included
in subclause (1) of this clause (c)), provided that the sum of items (x),
(y) and (z) of this subclause (3) shall not exceed, in the aggregate, the
aggregate amount of such Restricted Investments made after May 11, 1999.
The foregoing provisions shall not prohibit (i) the payment of any dividend
within 60 days after the date of declaration thereof, if at said date of
declaration such payment would have complied with the provisions of this
Indenture, (ii) the redemption, repurchase, retirement, defeasance or other
acquisition of any subordinated Indebtedness or Equity Interests of the Company
in exchange for, or out of the net cash proceeds of the substantially concurrent
sale (other than to a Subsidiary of the Company) of, Equity Interests of the
Company (other than any Disqualified Stock, except to the extent that such
Disqualified Stock is issued in exchange for other
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Disqualified Stock or the net cash proceeds of such Disqualified Stock is used
to redeem, repurchase, retire or otherwise acquire other Disqualified Stock);
provided that the amount of any such net cash proceeds that are utilized for any
such redemption, repurchase, retirement, defeasance or other acquisition shall
be excluded from clause (c) (2) of the preceding paragraph; (iii) the
defeasance, redemption, repurchase or other acquisition of subordinated
Indebtedness in exchange for, or out of the net cash proceeds from an incurrence
of Permitted Refinancing Indebtedness; (iv) the repurchase, redemption or other
acquisition or retirement for value of any Equity Interests of the Company or
any Restricted Subsidiary of the Company held by any employees, officers or
directors of the Company or any of its Restricted Subsidiaries or, upon the
death, disability or termination of employment of such officers, directors and
employees, their authorized representatives in an aggregate amount not to exceed
in any twelve month period, $2.0 million plus the aggregate net cash proceeds
from any issuance during such period of Equity Interests by the Company to such
employees, officers, directors, or representatives plus the aggregate net cash
proceeds from any payments on life insurance policies in which the Company or
its Restricted Subsidiaries is the beneficiary with respect to such employees,
officers or directors the proceeds of which are used to repurchase, redeem or
acquire Equity Interests of the Company held by such employees, officers,
directors or representative; (v) the repurchase of Equity Interests of the
Company deemed to occur upon the exercise of stock options or similar
arrangement if such Equity Interests represents a portion of the exercise price
thereof; or (vi) additional Restricted Payments in an amount not to exceed $15
million (less the amount, if any, of any Restricted Payments made after May 11,
1999 and on or prior to the Closing Date that would not have been permitted
under any of the foregoing clauses); provided, however, that at the time of, and
after giving effect to, any Restricted Payment permitted under clauses (iv) or
(vi) no Default or Event of Default shall have occurred and be continuing.
In the case of any Restricted Payments made other than in cash, the amount
thereof shall be the fair market value on the date of such Restricted Payment of
the asset(s) or securities proposed to be transferred or issued by the Company
or such Restricted Subsidiary, as the case may be, pursuant to the Restricted
Payment. The fair market value of any such asset(s) or securities shall be
determined in good faith by the Board of Directors of the Company. Where the
amount of any Investment made other than in cash is otherwise required to be
determined for purposes of this Indenture, then unless otherwise specified such
amount shall be the fair market value thereof on the date of such Investment,
and fair market value shall be determined in good faith by the Board of
Directors of the Company.
The Board of Directors of the Company may designate any Restricted
Subsidiary to be an Unrestricted Subsidiary if such designation would not cause
a Default. For purposes of making such determination, all outstanding
Investments (including without limitation any direct or indirect obligation to
subscribe for additional Equity Interests or maintain or preserve such
subsidiary's financial condition or to cause such person to achieve any
specified level of operating results) by the Company and its Restricted
Subsidiaries (except to the extent repaid) in the Subsidiary so designated will
be deemed to be Investments at the time of such designation and, except to the
extent, if any, that such Investments are Permitted Investments at such time,
will reduce the amount otherwise available for Restricted Payments. All such
outstanding Investments will be deemed to constitute Investments in an amount
equal to the fair market value of such Investments at the time of such
designation. Such designation will only be permitted if such Investment would be
permitted at such time and if such Restricted Subsidiary otherwise
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meets (or would meet concurrently with the effectiveness of such designation)
the definition of an Unrestricted Subsidiary.
Any such designation by the Board of Directors of the Company shall be
evidenced to the Trustee by filing with the Trustee a Board Resolution giving
effect to such designation. The Board of Directors of the Company may at any
time designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided that such designation shall be deemed to be an incurrence of
Indebtedness by a Restricted Subsidiary of the Company of any outstanding
Indebtedness of such Unrestricted Subsidiary and such designation shall only be
permitted if (i) such Indebtedness is permitted by Section 4.09 hereof and (ii)
no Default or Event of Default would be in existence following such designation.
To the extent that Unrestricted Subsidiaries were designated as such under
the Existing Note Indenture after the issuance of the Existing Notes on May 11,
1999 and on or prior to the date of this Indenture, and such designation
resulted in or constituted Restricted Payments and/or Permitted Investments
under the Existing Note Indenture, such designations shall be deemed to have
resulted in or constituted Restricted Payments and/or Permitted Investments
under this Indenture.
SECTION 4.11. Limitation on Liens
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien securing Indebtedness on any asset now owned or hereafter
acquired, or any income or profits therefrom or assign or convey any right to
receive income therefrom, except Permitted Liens.
SECTION 4.12. Limitation on Transactions with Affiliates
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit
of, any Affiliate (each of the foregoing, an "Affiliate Transaction"), unless
(i) such Affiliate Transaction is on terms that are no less favorable to Company
or the relevant Restricted Subsidiary than those that would have been obtained
in a comparable transaction by the Company or such Restricted Subsidiary with an
unrelated Person and (ii) the Company delivers to the Trustee (a) with respect
to any Affiliate Transaction or series of related Affiliate Transactions
involving aggregate payments or consideration in excess of $5.0 million, a Board
Resolution authorizing and determining the fairness of such Affiliate
Transaction approved by a majority of the independent members of the Board of
Directors of the Company and (b) with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate payments or
consideration in excess of $15.0 million, an opinion as to the fairness to the
Company or such Restricted Subsidiary of such Affiliate Transaction from a
financial point of view issued by an accounting, appraisal or investment banking
firm of national standing.
The foregoing provisions will not prohibit (i) reasonable fees and
compensation paid to and indemnity provided on behalf of officers, directors,
employees, agents or consultants of the
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Company or any Restricted Subsidiary of the Company as determined in good faith
by the Company's Board of Directors or senior management including, without
limitation, any issuance of Equity Interests of the Company pursuant to stock
option, stock ownership or similar plans; (ii) transactions between or among the
Company and/or its Restricted Subsidiaries; (iii) any agreement or arrangement
as in effect on May 11, 1999 and publicly disclosed or any amendment thereto or
any transaction contemplated thereby (including pursuant to any amendment
thereto) in any replacement agreement or arrangement thereto so long as any such
amendment or replacement agreement or arrangement is not more disadvantageous to
the Company or its Restricted Subsidiaries, as the case may be, in any material
respect than the original agreement as in effect on May 11, 1999; (iv) loans or
advances to employees and officers of the Company and its Restricted
Subsidiaries not in excess of $5 million at any time outstanding; and (v) any
Permitted Investment or any Restricted Payment that is permitted by Section 4.10
hereof.
SECTION 4.13. Limitation on Dividend and Other Payment Restrictions Affecting
Subsidiaries
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction on the
ability of any Restricted Subsidiary to (i) (a) pay dividends or make any other
distributions to the Company or any of its Restricted Subsidiaries (1) on its
Capital Stock or (2) with respect to any other interest or participation in, or
measured by, its profits, or (b) pay any indebtedness or other obligations owed
to the Company or any of its Restricted Subsidiaries, (ii) make loans or
advances to the Company or any of its Restricted Subsidiaries, (iii) transfer
any of its properties or assets to the Company or any of its Restricted
Subsidiaries or (iv) guarantee the Notes or any renewals or refinancings
thereof, in each case except for such encumbrances or restrictions (other than
encumbrances and restrictions in respect of clause (iv) of this sentence)
existing under or by reason of (a) Existing Indebtedness as in effect on May 11,
1999, (b) the Credit Agreement (as defined in the Existing Note Indenture) as in
effect on May 11, 1999, and any amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or refinancings
thereof, provided that such amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings are no more
restrictive with respect to such dividend and other payment restrictions than
those contained in the Credit Agreement (as defined in the Existing Note
Indenture) as in effect on May 11, 1999, (c) (x) the Existing Notes, any
Guarantee thereof and the Existing Note Indenture and (y) the Notes, any
Guarantee thereof and this Indenture, (d) applicable law, (e) any instrument
governing Indebtedness or Equity Interests of a Person acquired by the Company
or any of its Restricted Subsidiaries as in effect at the time of such
acquisition (except to the extent such Indebtedness or Equity Interests were
incurred in connection with or in contemplation of such acquisition), which
encumbrance or restriction is not applicable to any Person, or the Equity
Interests, properties or assets of any Person, other than the Person, or the
Equity Interests, property or assets of the Person, so acquired, provided that,
in the case of Indebtedness, such Indebtedness was permitted by this Indenture,
(f) by reason of customary nonassignment provisions in leases entered into in
the ordinary course of business and consistent with past practices, (g) purchase
money obligations for property acquired in the ordinary course of business that
impose restrictions of the nature described in clause (iii) above on the
property so acquired or proceeds therefrom, (h) customary restrictions in asset
or stock sale agreements limiting transfer of such assets or stock pending the
closing of such sale, (i)
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customary non-assignment provisions in contracts entered into in the ordinary
course of business, or (j) Permitted Refinancing Indebtedness, provided that the
restrictions contained in the agreements governing such Permitted Refinancing
Indebtedness are no more restrictive than those contained in the agreements
governing the Indebtedness being refinanced.
SECTION 4.14. Limitation on Layering Debt
(a) The Company shall not, directly or indirectly, incur, create, issue,
assume, guarantee or otherwise become liable for any Indebtedness that is by its
terms subordinate or junior in right of payment to any Senior Debt of the
Company and senior in any respect in right of payment to the Notes.
(b) The Company shall not permit any Guarantor to, directly or indirectly,
incur, create, issue, assume, guarantee or otherwise become liable for any
Indebtedness that is by its terms subordinate or junior in right of payment to
any Senior Debt of such Guarantor and senior in any respect in right of payment
to the Subsidiary Guarantee of such Guarantor.
SECTION 4.15. Payments for Consent
The Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, pay or cause to be paid any consideration, whether by
way of interest, fee or otherwise, to any Holder of any Notes for or as an
inducement to any consent, waiver or amendment of any of the terms or provisions
of this Indenture or the Notes unless such consideration is offered to be paid
and is paid to all Holders of Notes that consent, waive or agree to amend in the
time frame set forth in the solicitation documents relating to such consent,
waiver or agreement.
SECTION 4.16. Asset Sales
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, consummate an Asset Sale unless (i) the
Company (or such Restricted Subsidiary, as the case may be) receives
consideration at the time of such Asset Sale at least equal to the fair market
value (evidenced by a Board Resolution ) of the assets or Equity Interests
issued or sold or otherwise disposed of and (ii) at least 75% of the
consideration therefor received by the Company or such Restricted Subsidiary is
in the form of (x) cash or Cash Equivalents or (y) a controlling interest in
another business or fixed or other long-term assets, in each case, in a Similar
Business; provided that the amount of (a) any liabilities (as shown on the
Company's or such Restricted Subsidiary's most recent balance sheet) of the
Company or such Restricted Subsidiary (other than contingent liabilities and
liabilities that are by their terms subordinated to the Notes or any Guarantee
thereof) that are assumed by the transferee of any such assets or Equity
Interests such that the Company or such Restricted Subsidiary are released from
further liability and (b) any securities, notes or other obligations received by
the Company or such Restricted Subsidiary from such transferee that are
converted by the Company or such Restricted Subsidiary into cash within 90 days
or are guaranteed (by means of a letter of credit or otherwise) by an
institution specified in the definition of "Cash Equivalents" (to the extent of
the cash received or the obligations so guaranteed) shall be deemed to be cash
or Cash Equivalents for purposes of this Section 4.16, subject to application as
provided in the following paragraph.
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Within 365 days after the receipt of any Net Proceeds from an Asset Sale,
the Company, at its option, may (i) apply such Net Proceeds to permanently
prepay, repay or reduce any Senior Debt of the Company (and to correspondingly
reduce commitments with respect thereto in the case of revolving borrowings) or
(ii) apply such Net Proceeds to the acquisition of a controlling interest in
another business, the making of a capital expenditure or the acquisition of
other long-term assets, in each case, in a Similar Business, or determine to
retain such Net Proceeds to the extent such Net Proceeds constitute such a
controlling interest or long-term asset in a Similar Business. Pending the final
application of any such Net Proceeds, the Company may invest such Net Proceeds
in any manner that is not prohibited by this Indenture. Any Net Proceeds from
Asset Sales that are not applied or invested as provided in the first sentence
of this paragraph will be deemed to constitute "Excess Proceeds." When the
aggregate amount of Excess Proceeds exceeds $10 million, the Company shall make
an offer to all Holders of Notes (and holders of other Indebtedness of the
Company, including the Existing Notes, to the extent required by the terms of
such other Indebtedness) (an "Asset Sale Offer") to purchase the maximum
principal amount of Notes (and such other Indebtedness) that does not exceed the
Excess Proceeds at an offer price in cash in an amount equal to 100% of the
principal amount thereof, plus accrued and unpaid interest and Liquidated
Damages, if any, thereon to the date of purchase, in accordance Section 3.10
hereof. To the extent that the aggregate principal amount of Notes (and such
other Indebtedness) tendered pursuant to an Asset Sale Offer is less than the
Excess Proceeds, the Company may use any remaining Excess Proceeds for general
corporate purposes. If the aggregate principal amount of Notes (and such other
Indebtedness) tendered exceeds the amount of Excess Proceeds, the Notes (and
such other Indebtedness) to be purchased shall be selected on a pro rata basis.
Upon completion of an Asset Sale Offer, the amount of Excess Proceeds shall be
reset at zero. The Asset Sale Offer must be commenced within 60 days following
the date on which the aggregate amount of Excess Proceeds exceeds $10 million.
The Company shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to an Asset Sale Offer.
SECTION 4.17. Offer to Repurchase Upon Change of Control
(a) Upon the occurrence of a Change of Control, unless notice of redemption
of the Notes in whole has been given pursuant to Sections 3.04 and 3.08 hereof,
the Company shall make an offer to purchase all or any part (equal to $1,000 or
an integral multiple thereof) of each Holder's Notes pursuant to the offer
described below (the "Change of Control Offer") at an offer price in cash (the
"Change of Control Payment") equal to 101% of the aggregate principal amount
thereof, plus accrued and unpaid interest and Liquidated Damages, if any,
thereon to the date of purchase (the "Change of Control Payment Date").
(b) Notice of a Change of Control Offer shall be mailed by the Company,
with a copy to the Trustee, or, at the option of the Company and at the expense
of the Company, by the Trustee within 30 days following a Change of Control to
each Holder of Notes, with the following statements and/or information:
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(1) a Change of Control Offer is being made pursuant to this Section 4.17
and that all Notes properly tendered pursuant to such Change of
Control Offer will be accepted for payment;
(2) the purchase price, the expiration date of the Change of Control Offer
(the "Expiration Date"), which shall be no earlier than 30 days nor
later than 60 days from the date such notice is mailed (except as may
be otherwise required by applicable law) and the Change of Control
Payment Date, which shall be no later than the third Business Day
following the Expiration Date;
(3) any Note not properly tendered will remain outstanding and continue to
accrue interest and Liquidated Damages, if any;
(4) unless the Company defaults in the payment of the Change of Control
Payment, all Notes accepted for payment pursuant to the Change of
Control Offer will cease to accrue interest and Liquidated Damages, if
any, on the Change of Control Payment Date;
(5) Holders electing to have a Note purchased pursuant to any Change of
Control Offer shall be required to surrender the Note, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the
Note completed, or transfer by book-entry transfer, to the Company, a
depositary, if appointed by the Company, or a Paying Agent and at the
address specified in the notice prior to the expiration of the Change
of Control Offer;
(6) Holders shall be entitled to withdraw their tendered Notes and their
election to require the Company to purchase such Notes, provided that
the Company, the depositary or Paying Agent, as the case may be,
receives, not later than the close of business on the Expiration Date,
a telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Notes tendered for
purchase, and a statement that such Holder is withdrawing his tendered
Notes and his election to have such Notes purchased;
(7) that Holders whose Notes are being purchased only in part shall be
issued new Notes equal in principal amount to the unpurchased portion
of the Notes surrendered (or transferred by book-entry transfer),
which unpurchased portion must be equal to $1,000 in principal amount
or an integral multiple thereof; and
(8) a description of the transaction or transactions that constitute the
Change of Control.
(c) The Company shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws
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and regulations are applicable in connection with the repurchase of Notes
pursuant to a Change of Control Offer.
(d) On the Change of Control Payment Date, the Company shall, to the extent
lawful, (1) accept for payment all Notes or portions thereof properly tendered
pursuant to the Change of Control Offer, (2) deposit with the Paying Agent an
amount equal to the aggregate Change of Control Payment in respect of all Notes
or portions thereof so tendered and (3) deliver, or cause to be delivered, to
the Trustee for cancellation the Notes so accepted together with an Officers'
Certificate stating the aggregate principal amount of Notes or portions thereof
being purchased by the Company. The Paying Agent shall promptly mail or deliver
to each Holder of Notes so tendered the Change of Control Payment for such
Notes, and the Trustee shall promptly authenticate and mail (or cause to be
transferred by book entry) to each Holder a new Note equal in principal amount
to any unpurchased portion of the Notes surrendered, if any; provided that each
such new Note will be in a principal amount of $1,000 or an integral multiple
thereof. The Company will publicly announce the results of the Change of Control
Offer on or as soon as practicable after the Change of Control Payment Date.
(e) Notwithstanding the foregoing, if the Change of Control Payment Date is
on or after a Regular Record Date and on or before the related Interest Payment
Date, any accrued and unpaid interest and Liquidated Damages, if any, shall be
paid to the Person in whose name a Note is registered at the close of business
on such Regular Record Date, and no additional interest shall be payable to
Holders who tender Notes pursuant to the Change of Control Offer.
(f) Notwithstanding the foregoing, the Company shall not be required to
make a Change of Control Offer upon a Change of Control if a third party makes
the Change of Control Offer in the manner, at the times and otherwise in
compliance with the requirements set forth in this Indenture applicable to a
Change of Control Offer made by the Company and purchases all Notes validly
tendered and not withdrawn under such Change of Control Offer.
(g) The Change of Control provisions described in this Section 4.17 will be
applicable whether or not any other provisions of this Indenture are applicable.
SECTION 4.18. Additional Subsidiary Guarantees
If any Restricted Subsidiary of the Company after the date of this
Indenture shall become or be required to become a guarantor under the Credit
Agreement, or shall become a guarantor of any other Indebtedness of the Company
or any Restricted Subsidiary, then the Company shall cause such Restricted
Subsidiary to (i) become (by a supplemental indenture executed and delivered to
the Trustee in form satisfactory to the Trustee) a Guarantor and (ii) deliver to
the Trustee an Opinion of Counsel reasonably satisfactory to the Trustee that
such supplemental indenture has been duly executed and delivered; provided, that
if such Restricted Subsidiary is released and discharged from all obligations
under such guarantees, it shall be released and discharged from its obligations
under its Subsidiary Guarantee as provided in Section 12.06 hereof. For the
purposes of this Indenture, a Subsidiary shall, without limitation, be deemed to
have guaranteed Indebtedness of another Person if such Subsidiary has
Indebtedness of the kind described in clause (ii) or clause (iii) of the
definition of the term "Indebtedness."
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ARTICLE 5
SUCCESSORS
SECTION 5.01. Limitation on Merger, Consolidation or Sale of Assets
(a) The Company shall not consolidate or merge with or into (whether or not
the Company is the surviving Person), or sell, assign, transfer, lease, convey
or otherwise dispose of all or substantially all of its properties or assets in
one or more related transactions to, another Person unless (i) the Company is
the surviving Person or the Person formed by or surviving any such consolidation
or merger (if other than the Company) or to which such sale, assignment,
transfer, lease, conveyance or other disposition shall have been made is a
Person organized or existing under the laws of the United States, any state
thereof or the District of Columbia; (ii) the Person formed by or surviving any
such consolidation or merger (if other than the Company) or the Person to which
such sale, assignment, transfer, lease, conveyance or other disposition shall
have been made assumes all the obligations of the Company under the Notes and
this Indenture pursuant to a supplemental indenture in a form reasonably
satisfactory to the Trustee; (iii) immediately after giving effect to such
transaction no Default or Event of Default exists; and (iv) except in the case
of a merger of the Company with or into a Restricted Subsidiary of the Company,
the Company or the Person formed by or surviving any such consolidation or
merger (if other than the Company), or to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made, (A) shall have
Consolidated Net Worth immediately after the transaction equal to or greater
than the Consolidated Net Worth of the Company immediately preceding the
transaction and (B) shall, at the time of such transaction and after giving pro
forma effect thereto as if such transaction had occurred at the beginning of the
applicable four-quarter period, be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio
test set forth in the first paragraph of Section 4.09 hereof.
Nothing contained in the foregoing paragraph shall prohibit (i) any
Restricted Subsidiary from consolidating with, merging with or into, or
transferring all or part of its properties and assets to the Company or (ii) the
Company from merging with an Affiliate for the purpose of reincorporating the
Company in another jurisdiction to realize tax or other benefits; provided,
however, that in connection with any such merger, consolidation or asset
transfer no consideration, other than common stock (that is not Disqualified
Stock) in the surviving Person or the Company shall be issued or distributed.
(b) The Company shall deliver to the Trustee prior to the consummation of
any proposed transaction subject to the foregoing clause (a) an Officers'
Certificate and an Opinion of Counsel, each stating that the proposed
transaction and such supplemental indenture comply with this Indenture. The
Trustee shall be entitled to conclusively rely upon such Officers' Certificate
and Opinion of Counsel.
SECTION 5.02. Successor Person Substituted
Upon any consolidation or merger, or any sale, assignment, transfer, lease,
conveyance or other disposition of all or substantially all of the assets of the
Company in accordance with
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Section 5.01 hereof, the successor Person formed by such consolidation or into
or with which the Company is merged or to which such sale, assignment, transfer,
lease, conveyance or other disposition is made shall succeed to, and be
substituted for (so that from and after the date of such consolidation, merger,
sale, lease, conveyance or other disposition, the provisions of this Indenture
referring to the "Company" shall refer instead to the successor Person and not
to the Company), and may exercise every right and power of the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default
Each of the following constitutes an Event of Default:
(1) default for 30 days or more in the payment when due of interest
on, or Liquidated Damages, if any, with respect to, the Notes (whether or
not prohibited by Article 10 hereof); or
(2) default in payment when due (whether payable at maturity, upon
redemption or repurchase or otherwise) of the principal of or premium, if
any, on the Notes (whether or not prohibited by Article 10 hereof); or
(3) failure by the Company or any of its Restricted Subsidiaries to
comply with Article 5 hereof; or
(4) failure by the Company to comply with Sections 3.10, 4.16 or 4.17
hereof (whether or not prohibited by Article 10 hereof) (other than a
failure to purchase Notes pursuant to an offer commenced under such
provisions, which shall be subject to clause (2) above) for 30 days after
written notice by the Trustee or the Holders of at least 25% in principal
amount of the then outstanding Notes; or
(5) failure by the Company or any of its Restricted Subsidiaries for
60 days after written notice by the Trustee or the Holders of at least 25%
in principal amount of the then outstanding Notes to comply with any of its
other agreements in this Indenture or the Notes other than those referred
to in clauses (1), (2), (3) or (4) above; or
(6) default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any of its Significant
Subsidiaries (or the payment of which is guaranteed by the Company or any
of its Significant Subsidiaries), whether such Indebtedness or guarantee
now exists, or is created after the Closing Date, which default (a) is
caused by a failure to pay principal after final maturity of such
Indebtedness prior to the expiration of the grace period provided in such
Indebtedness on the date of such default (a "Payment Default") or (b)
results in the acceleration of such Indebtedness prior to its express
maturity and, in each case, the principal amount of any such Indebtedness,
together with the principal amount of any other such Indebtedness under
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which there has been a Payment Default or the maturity of which has been so
accelerated, aggregates $10 million or more without such Indebtedness being
discharged or such acceleration having been cured, waived or rescinded
within 30 days of acceleration; or
(7) failure by the Company or any of its Significant Subsidiaries to
pay final judgments aggregating in excess of $10.0 million and either (a)
any creditor commences enforcement proceedings upon any such judgment or
(b) such judgments are not paid, discharged or stayed for a period of 60
days; or
(8) except as permitted by this Indenture, any Guarantee of the Notes
by a Significant Subsidiary shall be held in any judicial proceeding to be
unenforceable or invalid or shall cease for any other reason to be in full
force and effect, or any Guarantor which is a Significant Subsidiary, or
any Person acting on behalf of any such Guarantor, shall deny or disaffirm
its obligations under its Subsidiary Guarantee; or
(9) the Company or any Restricted Subsidiary that is a Significant
Subsidiary, pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding,
(B) consents to the entry of an order for relief against it in an
involuntary case or proceeding,
(C) consents to the appointment of a Custodian of it or for all
or substantially all of its property,
(D) makes a general assignment for the benefit of its creditors,
or
(E) admits in writing its inability generally to pay its debts as
the same become due; or
(10) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company or any Restricted
Subsidiary that is a Significant Subsidiary in an involuntary case or
proceeding,
(B) appoints a Custodian of the Company or any Restricted
Subsidiary that is a Significant Subsidiary or for all or a
substantial part of the property of the Company or any Restricted
Subsidiary that is a Significant Subsidiary, or
(C) orders the liquidation of the Company or any Restricted
Subsidiary that is a Significant Subsidiary,
and the order or decree contemplated by clause (A), (B) or (C) of this
clause (10) remains unstayed and in effect for 60 consecutive days.
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SECTION 6.02. Acceleration of Maturity
If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Notes may
declare all the Notes and all other Obligations thereunder to be due and payable
immediately by notice in writing to the Company and the Trustee. Upon a
declaration of acceleration, the Notes and all other Obligations thereunder
shall become immediately due and payable.
Notwithstanding the foregoing, in the case of an Event of Default specified
in clause (9) or (10) of Section 6.01 hereof occurring with respect to the
Company, all outstanding Notes and all other Obligations thereunder shall become
immediately due and payable without further action or notice.
If any Event of Default occurs by reason of any willful action (or
inaction) taken (or not taken) by or on behalf of the Company or any Guarantor
with the intention of avoiding payment of the premium that the Company would
have had to pay if the Company then had elected to redeem the Notes pursuant to
Section 3.08 hereof, an equivalent premium shall also become and be immediately
due and payable to the extent permitted by law upon the acceleration of the
Notes.
SECTION 6.03. Other Remedies
If an Event of Default occurs and is continuing, the Trustee may pursue any
available remedy (under this Indenture or otherwise) to collect the payment of
principal of, premium, if any, Liquidated Damages, if any, and interest on the
Notes or to enforce the performance of any provision of the Notes, this
Indenture or the Registration Rights Agreement.
The Trustee may maintain a proceeding even if it does not possess any of
the Notes or does not produce any of them in the proceeding. A delay or omission
by the Trustee or any Holder of a Note in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
SECTION 6.04. Waiver of Past Defaults
Subject to Section 6.07 hereof, the Holders of a majority in aggregate
principal amount of the then outstanding Notes by notice to the Trustee may on
behalf of the Holders of all of the Notes waive an existing Default or Event of
Default and its consequences hereunder, except a continuing Default or Event of
Default in the payment of the principal of, premium, if any, interest or
Liquidated Damages, if any, on, any Note held by a non-consenting Holder;
provided, however, that the Holders of at least a majority in aggregate
principal amount of the Notes then outstanding may rescind an acceleration and
its consequences, including any related payment default that resulted from such
acceleration. Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
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SECTION 6.05. Control by Majority
The Holders of a majority in aggregate principal amount of the then
outstanding Notes may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising any
trust or power conferred on it. However, subject to Section 7.01 hereof, the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture that the Trustee determines may be unduly prejudicial to the rights of
other Holders of Notes or that may involve the Trustee in personal liability.
The Trustee may take any other action which it deems proper and which is not
inconsistent with any such direction. In the event the Trustee takes any action
or follows any direction pursuant to this Indenture, the Trustee shall be
entitled to indemnification reasonably satisfactory to it against any loss or
expense caused by taking such action or following such direction.
SECTION 6.06. Limitation on Suits
No Holder of a Note will have any right to institute any proceeding with
respect to this Indenture or for any remedy hereunder, unless (i) such Holder
shall have previously given to the Trustee written notice of a continuing Event
of Default with respect to the Notes, (ii) the Holders of at least 25% in
aggregate principal amount of the Notes then outstanding shall have made written
request to the Trustee to institute such proceeding and, if requested by the
Trustee, provided indemnity satisfactory to the Trustee, with respect to such
proceeding, (iii) the Trustee shall not have received from the Holders of a
majority in aggregate principal amount of the Notes then outstanding a direction
inconsistent with such request and (iv) the Trustee shall have failed to
institute such proceeding within 30 days after such request and, if requested,
the provision of an indemnity satisfactory to the Trustee.
Notwithstanding anything to the contrary contained in this Section 6.06,
any Holder of a Note shall have the right to institute a proceeding with respect
to this Indenture or the Notes or for any remedy in the following instances:
(i) a Holder of a Note may institute suit for enforcement of payment
of principal of and premium, if any, or interest or Liquidated Damages, if
any, on such Note on or after the respective due dates expressed in such
Note (including upon acceleration thereof) or
(ii) Holders of a majority in principal amount of the outstanding
Notes may institute any proceeding with respect to this Indenture or the
Notes or any remedy thereunder; provided that, upon institution of any
proceeding or exercise of any remedy, such Holders provide the Trustee with
prompt written notice thereof.
A Holder of Notes may not use this Indenture to prejudice the rights of
another Holder of Notes or to obtain a preference or priority over another
Holder of Notes.
SECTION 6.07. Rights of Holders to Receive Payment
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal of, premium, if any, interest
or Liquidated Damages, if any, on any Note, on or after the respective due dates
expressed in such Note, any Redemption Date, any
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Change of Control Payment Date or any Purchase Date, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee
If an Event of Default specified in Section 6.01(1) or (2) hereof occurs
and is continuing, the Trustee is authorized to recover judgment in its own name
and as trustee of an express trust against the Company or any Guarantor for the
whole amount of principal of, premium, if any, interest and Liquidated Damages,
if any, owing on the Notes and such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due to the Trustee under Section 7.07 hereof.
SECTION 6.09. Trustee May File Proofs of Claim
The Trustee is authorized to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of Notes allowed in any judicial proceedings relative to the Company (or
any Guarantor or other obligor upon the Notes), its creditors or its property
and shall be entitled and empowered to collect, receive and distribute any money
or other property payable or deliverable upon the conversion or exchange of the
Notes or upon any such claims and any custodian in any such judicial proceeding
is hereby authorized by each Holder of Notes to make such payments to the
Trustee and, in the event that the Trustee shall expressly consent to the making
of such payments directly to the Holders of Notes, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07 hereof. To the extent that the payment of any such
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 hereof out
of the estate in any such proceeding, shall be denied for any reason, payment of
the same shall be secured by a Lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties that the
Holders of Notes may be entitled to receive in such proceeding whether in
liquidation or under any plan of reorganization or arrangement or otherwise.
Nothing herein contained shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any Holder of Notes any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder of Notes in any such proceeding.
SECTION 6.10. Priorities
If the Trustee collects any money pursuant to this Article 6, it shall,
subject to Article 10 and Section 12.04 hereof, pay out the money in the
following order:
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First: to the Trustee, its agents and attorneys for amounts due under
Section 7.07 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs
and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the Notes
for principal, premium, if any, interest and Liquidated Damages, if any,
ratably, without preference or priority of any kind, according to the
amounts due and payable on the Notes for principal, premium, if any,
interest and Liquidated Damages, if any, respectively;
Third: without duplication, to the Holders for any other Obligations
owing to the Holders under this Indenture, the Registration Rights
Agreement and the Notes; and
Fourth: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Notes pursuant to this Section 6.10.
SECTION 6.11. Undertaking for Costs
In any suit for the enforcement of any right or remedy under this Indenture
or in any suit against the Trustee for any action taken or omitted by it as a
Trustee, a court in its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.11
does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section
6.07 hereof, or a suit by a Holder or Holders of more than 10% in principal
amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
SECTION 7.01. Duties of Trustee
(1) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of its own affairs.
(2) Except during the continuance of an Event of Default:
(A) the duties of the Trustee shall be determined solely by the TIA or
the express provisions of this Indenture and the Trustee need perform, and
be liable for (as set forth herein), only those duties that are
specifically set forth in the TIA or this Indenture and no others, and no
implied covenants or obligations shall be read into this Indenture against
the Trustee; and
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(B) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture, provided
that the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(3) The Trustee may not be relieved from liabilities for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(A) this paragraph does not limit the effect of clause (2) of this
Section 7.01.
(B) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(C) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 hereof.
(4) Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to clauses (1), (2)
and (3) of this Section 7.01.
(5) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or incur any liability. The Trustee shall be under no
obligation to exercise any of its rights and powers under this Indenture unless
the Holders shall have offered to the Trustee security and indemnity
satisfactory to it against any loss, liability or expense.
(6) The Trustee shall not be liable for interest on any money or other
assets received by it except as the Trustee may agree in writing with the
Company. Money or other assets held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.
(7) The Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture or
other paper or documents, but the Trustee, in its discretion may make such
further inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company or any Subsidiary of the Company, personally or by agent or
attorney.
SECTION 7.02. Rights of Trustee
(1) The Trustee may conclusively rely and shall be fully protected in
relying upon any resolution, document, Officers' Certificate or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, bond or other document believed by it to be genuine and to have been
signed or presented by the proper Person. The Trustee need not investigate any
fact or matter stated in the document.
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(2) Before the Trustee acts or refrains from acting, it may consult with
counsel and it may require an Officers' Certificate or an Opinion of Counsel or
both which shall comply with Sections 1.05 and 13.04 hereof. The Trustee shall
not be liable for any action it takes or omits to take in good faith in reliance
on such Officers' Certificate or Opinion of Counsel. The Trustee may consult
with counsel and the advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection from liability, in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon.
(3) The Trustee may act through its attorneys, agents, custodians and
nominees and shall not be responsible for the misconduct or negligence of any
agent, custodian and nominee appointed with due care.
(4) The Trustee shall not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(5) Unless otherwise specifically provided in this Indenture, any demand,
request, direction or notice from the Company or any Guarantor shall be
sufficient if signed by an Officer of the Company or such Guarantor. A
permissive right granted to the Trustee hereunder shall not be deemed an
obligation to act.
(6) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request, order or direction of
any of the Holders pursuant to the provisions of this Indenture including,
without limitation, the provisions of Section 6.05 hereof, unless such Holders
shall have offered to the Trustee security or indemnity satisfactory to the
Trustee against the costs, expenses and liabilities that might be incurred by it
in compliance with such request, order or direction.
(7) The Trustee shall not be charged with knowledge of any Default or Event
of Default unless either (i) a Responsible Officer of the Trustee shall have
actual knowledge of such Default or Event of Default or (ii) written notice of
such Default or Event of Default shall have been given to the Trustee by the
Company or any Holder.
(8) In no event shall the Trustee be liable for the selection of
investments or for investment losses incurred thereon. The Trustee shall have no
liability in respect of losses incurred as a result of the liquidation of any
such investment prior to its stated maturity or the failure of the party
directing such investment to provide timely written investment direction;
provided in each such case that the Trustee shall have acted strictly in
accordance with written directions received from the instructing party. The
Trustee shall have no obligation to invest or reinvest any amounts held
hereunder in the absence of such written investment direction.
(9) In the event that the Trustee is also acting as Paying Agent, transfer
agent, or Registrar hereunder, the rights and protections afforded to the
Trustee pursuant to this Article 7 shall also be afforded to such Paying Agent,
transfer agent, or Registrar.
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SECTION 7.03. Individual Rights of Trustee
The Trustee, in its individual or any other capacity, may become the owner
or pledgee of Notes and may otherwise deal with the Company or any Affiliate of
the Company with the same rights it would have if it were not Trustee. However,
in the event that the Trustee acquires any conflicting interest it must
eliminate such conflict within 90 days, apply to the SEC for permission to
continue as trustee or resign. Any Agent may do the same with like rights and
duties. However, the Trustee is also subject to Sections 7.10 and 7.11 hereof.
SECTION 7.04. Trustee's Disclaimer
The Trustee shall not be responsible for and makes no representation as to
the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or upon the direction of the Company under any provision of
this Indenture, it shall not be responsible for the use or application of any
money received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the Notes or
any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
SECTION 7.05. Notice of Defaults
If a Default or Event of Default occurs and is continuing and if it is
known to a Responsible Officer of the Trustee, the Trustee shall mail to Holders
of Notes a notice of the Default or Event of Default within 90 days after it
occurs. Except in the case of a Default or Event of Default in payment of
principal of, premium, if any, interest or Liquidated Damages, if any, on any
Note pursuant to Section 6.01(1) or (2) hereof, the Trustee may withhold the
notice if it in good faith determines that withholding the notice is in the
interests of Holders of Notes.
SECTION 7.06. Reports by Trustee to Holders of Notes
Within 60 days after each May 15 beginning with May 15, 2002, and for so
long as Notes remain outstanding, the Trustee shall mail to the Holders of Notes
a brief report dated as of such reporting date that complies with TIA ss. 313(a)
(but if no event described in TIA ss. 313(a) has occurred within the twelve
months preceding the reporting date, no report need be transmitted). The Trustee
also shall comply with TIA ss. 313(b)(2). The Trustee shall also transmit by
mail all reports as required by TIA ss. 313(c).
A copy of each report at the time of its mailing to the Holders of Notes
shall be mailed to the Company and filed with the SEC and each stock exchange on
which the Notes are listed in accordance with TIA ss. 313(d). The Company shall
promptly notify the Trustee when the Notes are listed on any securities exchange
or of any delisting thereof.
SECTION 7.07. Compensation and Indemnity
The Company and each of the Guarantors, jointly and severally, shall pay to
the Trustee, from time to time, as may be agreed upon between them, reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be
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limited by any law on compensation of a trustee of an express trust. The Company
and each of the Guarantors, jointly and severally, shall reimburse the Trustee
promptly upon request for all reasonable disbursements, advances and expenses
incurred or made by it in addition to the compensation for its services in
accordance with any provision of this Indenture (including, without limitation,
the reasonable compensation, expenses and disbursements of its counsel and of
all agents and other persons not regularly in its employ (A) in connection with
the preparation, execution and delivery of this Indenture, any waiver or consent
hereunder, any modification or termination hereof, or any Event of Default or
alleged Event of Default; (B) if an Event of Default occurs, in connection with
such Event of Default and collection, bankruptcy, insolvency and other
enforcement proceedings relating thereto; (C) in connection with the
administration of the Trustee's rights pursuant hereto; or (D) in connection
with any removal of the Trustee pursuant to Section 7.08 hereof), except such
disbursements, advances and expenses as may be attributable to its negligence or
bad faith.
The Company and each of the Guarantors, jointly and severally, shall
indemnify the Trustee and its officers, directors, employees and agents against
any and all losses, liabilities, obligations, damages, penalties, judgments,
actions, suits, proceedings, reasonable costs and expenses (including reasonable
fees and disbursements of counsel) of any kind whatsoever which may be incurred
by the Trustee in connection with any investigative, administrative or judicial
proceeding (whether or not such indemnified party is designated a party to such
proceeding) arising out of or in connection with the acceptance or
administration of its duties under this Indenture, including the costs and
expenses of enforcing this Indenture against the Company or the Guarantors
(including this Section 7.07) and defending itself against any claim (whether
asserted by the Company or any Holder or any other Person) or liability in
connection with the exercise or performance of any of its duties or powers
hereunder; provided, however, that the Company need not reimburse any expense or
indemnify against any loss, obligation, damage, penalty, judgment, action, suit,
proceeding, reasonable cost or expense (including reasonable fees and
disbursements of counsel) of any kind whatsoever which may be incurred by the
Trustee in connection with any investigative, administrative or judicial
proceeding (whether or not such indemnified party is designated a party to such
proceeding) in which it is determined that the Trustee acted with gross
negligence or bad faith. The Trustee shall notify the Company promptly of any
claim for which it may seek indemnity. Failure by the Trustee to so notify the
Company shall not relieve the Company or the Guarantors of any of their
obligations hereunder. The Company and the Guarantors shall defend the claim and
the Trustee shall cooperate in the defense. The Trustee may have separate
counsel and the Company and each of the Guarantors, jointly and severally, shall
pay the reasonable fees and expenses of such counsel. The Company and the
Guarantors need not pay for any settlement made without its consent, which
consent shall not be unreasonably withheld.
The obligations of the Company and the Guarantors under this Section 7.07
(including the reasonable fees and expenses of its agents and counsel) shall
survive the resignation or removal of the Trustee and the satisfaction and
discharge of this Indenture and any rejection or termination under any
Bankruptcy Law.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a Lien prior to the Notes on all money or property held or
collected by the Trustee, except that
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held in trust to pay principal, premium, if any, and interest and Liquidated
Damages, if any, on particular Notes. Such Lien shall survive the satisfaction
and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(9) or (10) hereof occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents and
counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
The Trustee shall comply with the provisions of TIA ss. 313(b)(2) to the
extent applicable.
SECTION 7.08. Replacement of Trustee
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.08.
The Trustee may resign in writing at any time and be discharged from the
trust hereby created by so notifying the Company. The Holders of a majority in
principal amount of the then outstanding Notes may remove the Trustee by so
notifying the Trustee and the Company in writing. The Company may remove the
Trustee if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(3) a Custodian or public officer takes charge of the Trustee or its
property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount of the then outstanding Notes may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee, after written request by any Holder of Notes who has been a
Holder of a Note for at least six months, fails to comply with Section 7.10
hereof, such Holder of a Note may, on behalf of itself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
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The Company shall give or cause to be given notice of each resignation and
each removal of the Trustee to all Holders in the manner provided herein. Each
notice shall include the name of the successor Trustee and the address of its
Corporate Trust Office.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon, the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to
Holders of Notes. The retiring Trustee shall promptly transfer, after payment of
all amounts owing to the Trustee pursuant to Section 7.07 hereof, all property
held by it as Trustee to the successor Trustee; provided that all sums owing to
the Trustee hereunder have been paid and subject to the Lien provided for in
Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the Company's obligations under Section 7.07 hereof shall continue
for the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business (including the trust created
by this Indenture) to, another corporation, the successor corporation without
any further act shall be the successor Trustee.
SECTION 7.10. Eligibility; Disqualification
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state or territory thereof or of the District of Columbia that is
authorized under such laws to exercise corporate trustee power, that is subject
to supervision or examination by federal, state, territorial or District of
Columbia authorities and that has, or is a wholly owned subsidiary of a bank
holding company that has, a combined capital and surplus of at least $25,000,000
as set forth in its most recent published annual report of condition.
If at any time the Trustee shall cease to be eligible in accordance with
the provisions of this Section 7.10 it shall resign immediately in the manner
and with the effect specified in this Article 7.
This Indenture shall always have a Trustee who satisfies the requirements
of the TIA, including TIA ss.ss. 310(a)(1), (2) and (5). The Trustee is subject
to TIA ss. 310(b).
SECTION 7.11. Preferential Collection of Claims Against Company
The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
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ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01. Option to Effect Legal Defeasance or Covenant Defeasance
The Company may, at its option, evidenced by an Officers' Certificate, at
any time, with respect to the Notes, elect to have either Section 8.02 or 8.03
hereof be applied to all Notes and Subsidiary Guarantees then outstanding upon
compliance with the conditions set forth in this Article 8.
SECTION 8.02. Legal Defeasance and Discharge
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company and each Guarantor shall, subject
to the satisfaction of the conditions set forth in Section 8.04 hereof, be
deemed to have been discharged from their respective obligations with respect to
all Notes and Subsidiary Guarantees then outstanding on the date the conditions
set forth below are satisfied (hereinafter, "Legal Defeasance"). For this
purpose, Legal Defeasance means that the Company and any Guarantor shall be
deemed to have paid and discharged the entire Indebtedness represented by the
Notes and any Subsidiary Guarantee then outstanding, which shall thereafter be
deemed to be "outstanding" only for the purposes of Section 8.05 hereof and the
other Sections of this Indenture referred to in (a) and (b) below, and to have
satisfied all their other obligations under such Notes and Subsidiary
Guarantees, and this Indenture (and the Trustee, on demand of and at the expense
of the Company, shall execute proper instruments prepared by the Company
acknowledging the same), except for the following provisions which shall survive
until otherwise terminated or discharged hereunder: (a) the rights of Holders of
Notes then outstanding to receive solely from the trust fund described in
Section 8.04 hereof, and as more fully set forth in such Section, payments in
respect of the principal of, premium, if any, interest and Liquidated Damages,
if any, on such Notes when such payments are due, or on the Redemption Date, as
the case may be, (b) the Company's obligations with respect to such Notes under
Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.10, 4.02 and 4.03 hereof, (c) the
rights, powers, trusts, duties, indemnities and immunities of the Trustee
hereunder and the Company's obligations in connection therewith and (d) this
Article 8. Subject to compliance with this Article 8, the Company may exercise
its option under this Section 8.02 notwithstanding the prior exercise of its
option under Section 8.03 hereof with respect to the Notes.
SECTION 8.03. Covenant Defeasance
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company and each Guarantor shall, subject
to the satisfaction of the conditions set forth in Section 8.04 hereof, be
released from their obligations under the covenants contained in Sections 4.04,
4.05, 4.06, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14 , 4.15, 4.16, 4.17 and 4.18
and Article 5 hereof with respect to the outstanding Notes and the Subsidiary
Guarantees on and after the date the conditions set forth below are satisfied
(hereinafter, "Covenant Defeasance"), and the Notes and the Subsidiary
Guarantees shall thereafter be deemed not to be "outstanding" for the purposes
of any direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed
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"outstanding" for all other purposes hereunder (it being understood that such
Notes and the Subsidiary Guarantees shall not be deemed outstanding for
financial accounting purposes). For this purpose, Covenant Defeasance means
that, with respect to the outstanding Notes and the Subsidiary Guarantees, the
Company and any Guarantor may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such covenant or by reason of any reference in any such covenant to any
other provision herein or in any other document, and such omission to comply
shall not constitute a Default or Event of Default under Section 6.01(3), (4) or
(5) hereof, but, except as specified above, the remainder of this Indenture and
such Notes shall be unaffected thereby. In addition, upon the Company's exercise
under Section 8.01 hereof of the option applicable to this Section 8.03, subject
to the satisfaction of the conditions set forth in Section 8.04 hereof, Sections
6.01(3) through 6.01(8) hereof shall not constitute Events of Default.
SECTION 8.04. Conditions to Legal Defeasance or Covenant Defeasance
The following shall be the conditions to the application of either Section
8.02 or 8.03 hereof to the outstanding Notes and the Subsidiary Guarantees:
In order to exercise either Legal Defeasance or Covenant Defeasance, as
applicable:
(a) the Company must irrevocably deposit, or cause to be deposited,
with the Trustee, in trust, for the benefit of the Holders of Notes and
without retaining any legal interest in the corpus of such trust, cash in
U.S. dollars, non-callable Government Securities, or a combination thereof,
in such amounts as will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay and discharge,
and which shall be applied by the Trustee to pay and discharge, the
principal of and premium, if any, interest and Liquidated Damages, if any,
due on the outstanding Notes on the Stated Maturity thereof or on the
applicable Redemption Date, as the case may be, and the Company must
specify whether the Notes are being defeased to maturity or to a particular
Redemption Date;
(b) in the case of Legal Defeasance, the Company shall have delivered
to the Trustee an Opinion of Counsel in the United States reasonably
acceptable to the Trustee confirming that (1) the Company has received
from, or there has been published by, the U.S. Internal Revenue Service a
ruling or (2) since the Closing Date, there has been a change in the
applicable U.S. federal income tax law, in either case to the effect that,
and based thereon such Opinion of Counsel shall confirm that, the Holders
of the outstanding Notes will not recognize income, gain or loss for U.S.
federal income tax purposes, as a result of such Legal Defeasance and will
be subject to U.S. federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such Legal
Defeasance had not occurred;
(c) in the case of Covenant Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that the Holders of the
outstanding Notes will not recognize income, gain or loss for U.S. federal
income tax purposes as a result of such Covenant Defeasance
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and will be subject to U.S. federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of
Default resulting from the borrowing of funds to be applied to such
deposit);
(e) such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any material
agreement or instrument (other than this Indenture) to which the Company or
any of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that after the 91st day following the deposit, the
trust funds will not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally;
(g) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders of Notes over the other creditors of the
Company or with the intent of defeating, hindering, delaying or defrauding
creditors of the Company or others;
(h) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the Covenant
Defeasance, as the case may be, have been complied with; and
(i) the Trustee shall have received such other documents and
assurances as the Trustee shall reasonably require.
SECTION 8.05. Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions
(a) Subject to the provisions of the last paragraph of Section 4.03 hereof
and to Section 8.06 hereof, all money and Government Securities (including the
proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 8.05, the "Trustee") pursuant to
Section 8.04 hereof in respect of the Notes then outstanding shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Notes and this Indenture, to the payment, either directly or through any Paying
Agent as the Trustee may determine, to the Holders of such Notes of all sums due
and to become due thereon in respect of principal, premium, if any, interest and
Liquidated Damages, if any, but such money and Government Securities need not be
segregated from other funds except to the extent required by law.
(b) The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or Government Securities
deposited pursuant to Section 8.04 hereof or the principal and interest received
in respect thereof other than any such
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tax, fee or other charge which by law is for the account of the Holders of the
Notes then outstanding. This Section 8.05(b) shall survive the termination of
this Indenture, and the earlier removal or resignation of the Trustee.
SECTION 8.06. Repayment to Company
Subject to Sections 7.7 and 8.1 hereof, the Trustee shall deliver or pay to
the Company from time to time upon receipt of a written Company Request any
money or Government Securities held by it as provided in Section 8.04 hereof
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee (which may be the opinion delivered under Section 8.04(a) hereof)
accompanied by an Officers' Certificate, are in excess of the amount thereof
that would then be required to be deposited to effect an equivalent Legal
Defeasance or Covenant Defeasance.
SECTION 8.07. Reinstatement
If the Trustee or Paying Agent is unable to apply any United States dollars
or Government Securities in accordance with Section 8.02 or 8.03 hereof, as the
case may be, by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the Company's and any Guarantor's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.02 or 8.03 hereof, as the case may be, until such time as the Trustee
or Paying Agent is permitted to apply all such money in accordance with Section
8.02 or 8.03 hereof, as the case may be; provided, however, that if the Company
or any Guarantor makes any payment of principal of, premium, if any, or interest
or Liquidated Damages, if any, on any Notes following the reinstatement of its
obligations, the Company or such Guarantor shall be subrogated to the rights of
the Holders of such Notes to receive such payment from the money or Government
Securities held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENTS
SECTION 9.01. Without Consent of Holders
Notwithstanding Section 9.02 of this Indenture, the Company, the Guarantors
and the Trustee may amend or supplement this Indenture or the Notes without the
consent of any Holder of a Note:
(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for uncertificated Notes in addition to or in place of
certificated Notes;
(3) to provide for assumption of the Company's or any Guarantor's
obligations to the Holders of the Notes in the case of a merger,
consolidation or sale of assets;
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(4) to provide security for the Notes;
(5) to add a Guarantor under this Indenture;
(6) to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect the
legal rights hereunder of any Holder of the Notes in any material respect;
or
(7) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA.
Upon the written request of the Company, and upon receipt by the Trustee of
an Officers' Certificate and an Opinion of Counsel in compliance with Section
1.05 hereof, the Trustee shall join with the Company and the Guarantors in the
execution of any amendment or supplemental indenture authorized or permitted by
the terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be
obligated to enter into any such amendment or supplemental indenture that
adversely affects its own rights, duties or immunities under this Indenture or
otherwise.
SECTION 9.02. With Consent of Holders
Except as provided below in this Section 9.02, this Indenture, and the
Notes may be amended or supplemented with the consent of the Holders of at least
a majority in principal amount of the Notes then outstanding (including, without
limitation, consents obtained in connection with a purchase of, or tender offer
or exchange offer for, the Notes), and, subject to Sections 6.04 and 6.07
hereof, any existing default or compliance with any provision of this Indenture
or the Notes may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Notes (including consents obtained in
connection with a tender offer or exchange offer for the Notes).
Upon the request of the Company, and upon the filing with the Trustee of
evidence satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of an Officers' Certificate and an
Opinion of Counsel in compliance with Section 1.05 hereof, the Trustee shall
join with the Company and the Guarantors in the execution of such amendment or
supplemental indenture unless such amendment or supplemental indenture adversely
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such amendment or supplemental indenture.
It shall not be necessary for the consent of the Holders under this Section
9.02 to approve the particular form of any proposed supplemental indenture or
amendment, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes
effective, the Company shall mail to the Holders of each Note affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amendment or supplemental
indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the
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Holders of a majority in aggregate principal amount of the Notes then
outstanding may waive compliance in a particular instance by the Company with
any provision of this Indenture or the Notes. However, without the consent of
each Holder of Notes affected, an amendment or waiver may not (with respect to
any Note held by a non-consenting Holder):
(1) reduce the principal amount of the Notes whose Holders must
consent to an amendment, supplement or waiver;
(2) reduce the principal of or change the fixed maturity of any Note
or alter the provisions with respect to the price to be paid, or the timing
of redemption or payment, upon redemption of the Notes or, after the
Company has become obligated to make a Change of Control Offer or an Asset
Sale Offer, amend, change or modify the obligation of the Company to make
or consummate such Change of Control Offer or Asset Sale Offer;
(3) reduce the rate of or change the time for payment of interest, or
Liquidated Damages, if any, on any Note;
(4) waive a Default or Event of Default in the payment of principal of
or premium, interest or Liquidated Damages, if any, on the Notes (except a
rescission of acceleration of the Notes by the Holders of at least a
majority in aggregate principal amount of the Notes and a waiver of the
payment default that resulted from such acceleration);
(5) make any Note payable in money other than that stated in such
Note;
(6) except pursuant to Section 12.06 hereof, release any Guarantor
from its Subsidiary Guarantee;
(7) make any change in Section 12.04 or Article 10 hereof that
adversely affects the rights of any Holder of any Notes in any material
respect or any change to any other provision of this Indenture that
adversely affects the rights of any Holder of Notes under Section 12.04 or
Article 10 hereof in any material respect (it being understood that
amendments to Section 4.09 hereof which may have the effect of increasing
the amount of Senior Debt that the Company and its Restricted Subsidiaries
may incur shall not, for purposes of this clause (7), be deemed to be a
change that adversely affects in a material respect the rights of any
Holder of Notes under Section 12.04 or Article 10 hereof;
(8) make any change in the foregoing amendment and waiver provisions
of this Article 9.
SECTION 9.03. Compliance with Trust Indenture Act
Every amendment or supplement to this Indenture or the Notes shall be set
forth in an amendment or supplemental indenture that complies with the TIA as
then in effect.
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SECTION 9.04. Revocation and Effect of Consents
Until an amendment, supplement or waiver becomes effective, a consent to it
by a Holder of a Note is a continuing consent by the Holder of a Note and every
subsequent Holder of a Note or portion of a Note that evidences the same debt as
the consenting Holder's Note, even if notation of the consent is not made on any
Note. However, any such Holder of a Note or subsequent Holder of a Note may
revoke the consent as to such Holder's Note or portion of such Note by written
notice to the Trustee received before the date the amendment, supplement or
waiver becomes effective. An amendment, supplement or waiver becomes effective
in accordance with its terms and thereafter binds every Holder of Notes, except
as provided in Section 9.02 hereof.
SECTION 9.05. Notation on or Exchange of Notes
The Trustee may, but shall not be required to, place an appropriate
notation about an amendment, supplement or waiver on any Note thereafter
authenticated. The Company in exchange for all Notes may issue and the Trustee
shall authenticate new Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.06. Trustee to Sign Amendments, etc.
The Trustee shall sign any amended or supplemental indenture or waiver
authorized pursuant to this Article 9 if the amendment or supplement or waiver
does not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may, but need not, sign it. In signing or
refusing to sign any amended or supplemental indenture or waiver, the Trustee
shall be entitled to receive, if requested, an indemnity satisfactory to it and
to receive and, subject to Section 7.01 hereof, shall be fully protected in
relying upon an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that such amendment or supplemental indenture or waiver is authorized
or permitted by this Indenture, that it is not inconsistent herewith, and that
it will be valid and binding upon the Company and the Guarantors in accordance
with its terms. The Company may not sign an amendment or supplemental indenture
or waiver until the Board of Directors of the Company approves it.
ARTICLE 10
SUBORDINATION
SECTION 10.01. Agreement to Subordinate
The Company agrees, and each Holder by accepting a Note agrees, that the
payment (by setoff, redemption, repurchase or otherwise) of principal of,
premium, if any, interest and Liquidated Damages, if any, on the Notes
(including with respect to any repurchases of the Notes) shall be subordinated
in right of payment, as set forth in this Article 10, to the prior payment in
full in cash, or, at the option of the holders of Senior Debt of the Company, in
Cash
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Equivalents, of all Obligations in respect of Senior Debt of the Company,
whether outstanding on the date hereof or hereafter incurred.
SECTION 10.02. Liquidation; Dissolution; Bankruptcy
Upon any distribution to creditors of the Company upon any liquidation,
dissolution or winding up of the Company or in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to the Company or its
property, whether voluntary or involuntary, an assignment for the benefit of
creditors or any marshalling of the Company's assets and liabilities, the
holders of Senior Debt of the Company will be entitled to receive payment in
full in cash, or, at the option of the holders of Senior Debt of the Company, in
Cash Equivalents, of all Obligations due or to become due in respect of such
Senior Debt (including interest after the commencement of any such proceeding,
at the rate specified in the applicable Senior Debt) before the Holders of Notes
will be entitled to receive any payment of principal of, premium, if any, or
interest or Liquidated Damages, if any, on the Notes, and until all Obligations
with respect to Senior Debt of the Company are paid in full in cash, or, at the
option of the holders of Senior Debt of the Company, in Cash Equivalents, any
distribution of any kind or character to which the Holders of Notes would be
entitled shall be made to the holders of Senior Debt of the Company (except that
Holders of Notes may receive Permitted Junior Securities and payments made from
the trust described in Article 8 or Article 11 hereof).
SECTION 10.03. Default on Designated Senior Debt
The Company shall not, directly or indirectly, (x) make any payment of
principal of, premium, if any, or interest or Liquidated Damages, if any, on the
Notes (except in Permitted Junior Securities or from the trust described in
Article 8 or Article 11 hereof if no default of the kind referred to in clause
(i) below had occurred and was continuing, and no Payment Blockage Notice was in
effect, at the time amounts were deposited with the Trustee as described
therein) or (y) acquire any of the Notes for cash or property or otherwise or
make any other distribution with respect to the Notes if:
(i) any default occurs and is continuing in the payment when due,
whether at maturity, upon any redemption, by declaration or otherwise, of
any principal of, premium, if any, or interest on, any Designated Senior
Debt of the Company, or
(ii) any other default occurs and is continuing with respect to
Designated Senior Debt of the Company that permits holders of the
Designated Senior Debt of the Company as to which such default relates to
accelerate its maturity and the Trustee receives a notice of such default
(a "Payment Blockage Notice") from the holders of such Designated Senior
Debt of the Company.
The Company may and shall resume payments on the Notes:
(a) in the case of a payment default, upon the date on which such
default is cured or waived or otherwise has ceased to exist, and
(b) in the case of a nonpayment default, upon the earlier of the date
on which such nonpayment default is cured or waived or otherwise has ceased
to exist or 179 days
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after the date on which the applicable Payment Blockage Notice is received,
unless the maturity of any Designated Senior Debt of the Company has been
accelerated and such acceleration remains in full force and effect.
No new period of payment blockage may be commenced unless and until 360
days have elapsed since the effectiveness of the immediately prior Payment
Blockage Notice. No nonpayment default that existed or was continuing on the
date of delivery of any Payment Blockage Notice to the Trustee shall be, or be
made, the basis for a subsequent Payment Blockage Notice unless such nonpayment
default shall have been waived for a period of not less than 90 days.
The Company shall give prompt written notice to the Trustee of any default
in the payment of any Senior Debt of the Company or any acceleration under any
Senior Debt of the Company or under any agreement pursuant to which Senior Debt
of the Company may have been issued. Failure to give such notice shall not
affect the subordination of the Notes to the Senior Debt of the Company or the
application of the other provisions provided in this Article 10.
SECTION 10.04. Acceleration of Notes
If the Company fails to make any payment on the Notes when due or within
any applicable grace period, whether or not on account of the payment blockage
provision referred to above, such failure shall constitute an Event of Default
and shall entitle the Holders of Notes to accelerate the Maturity thereof. The
Company shall promptly notify holders of Senior Debt of the Company and the
Guarantors if payment of the Notes is accelerated because of an Event of
Default.
SECTION 10.05. When Distribution Must be Paid Over
In the event that, notwithstanding the foregoing, the Trustee or any Holder
receives, any payment of any principal, premium, interest or Liquidated Damages,
if any, on the Notes at a time when such payment is prohibited by Section 10.02
or 10.03 hereof, such payment shall be held by the Trustee or such Holder, in
trust for the benefit of, and shall be paid forthwith over and delivered to,
upon written request, the holders of Senior Debt of the Company as their
interests may appear or their representative under the indenture or other
agreement (if any) pursuant to which Senior Debt of the Company may have been
issued, as their respective interests may appear, for application to the payment
of all Obligations with respect to Senior Debt of the Company remaining unpaid
to the extent necessary to pay such Obligations in full in accordance with their
terms, after giving effect to any concurrent payment or distribution to or for
the holders of such Senior Debt.
Each Holder by his acceptance of a Note irrevocably agrees that if any
payment or payments shall be made pursuant to this Indenture and the amount or
total amount of such payment or payments exceeds the amount, if any, that such
Holder would be entitled to receive upon the proper application of the
subordination provisions of this Article 10, such Holder agrees that it will be
obliged to pay over the amount of the excess payment to the holders of Senior
Debt
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of the Person that made such payment or payments or their representative or
representatives, as instructed in a written notice of such excess payment,
within ten days of receiving such notice.
With respect to the holders of Senior Debt of the Company, the Trustee
undertakes to perform only such obligations on the part of the Trustee as are
specifically set forth in this Article 10, and no implied covenants or
obligations with respect to the holders of Senior Debt of the Company shall be
read into this Indenture against the Trustee. The Trustee shall not be deemed to
owe any fiduciary duty to the holders of Senior Debt of the Company, and shall
not be liable to any such holders if the Trustee shall pay over or distribute to
or on behalf of Holders or the Company or any other Person, money or assets to
which any holders of Senior Debt of the Company shall be entitled by virtue of
this Article 10, except if such payment is made as a result of the willful
misconduct or gross negligence of the Trustee.
SECTION 10.06. Notice by Company
The Company shall promptly notify the Trustee and the Paying Agent of any
facts known to the Company that would cause a payment of principal of, premium,
if any, interest or Liquidated Damages, if any, on the Notes to violate this
Article 10, but failure to give such notice shall not affect the subordination
of the Notes to Senior Debt as provided in this Article 10.
SECTION 10.07. Subrogation
After all Senior Debt of the Company is paid in full and until the Notes
are paid in full in cash, Holders of Notes shall be subrogated (equally and
ratably with all other Indebtedness pari passu with the Notes) to the rights of
holders of Senior Debt of the Company to receive distributions applicable to
Senior Debt of the Company to the extent that distributions otherwise payable to
the Holders of Notes have been applied to the payment of Senior Debt of the
Company. A distribution made under this Article 10 to holders of Senior Debt of
the Company that otherwise would have been made to Holders of Notes is not, as
between the Company and Holders, a payment by the Company on such Senior Debt.
If any payment or distribution to which the Holders of Notes would
otherwise have been entitled but for the provisions of this Article 10 shall
have been applied, pursuant to the provisions of this Article 10, to the payment
of amounts payable under the Senior Debt of the Company, then and in such case
the Holders shall be entitled to receive from the holders of such Senior Debt at
the time outstanding any payments or distributions received by such holders of
such Senior Debt in excess of the amount sufficient to pay all amounts payable
under or respect of such Senior Debt in full; provided that such payments or
distributions shall be paid first pro rata to Holders of Notes that previously
paid amounts then pro rata to all Holders of Notes.
SECTION 10.08. Relative Rights
This Article 10 defines the relative rights of Holders of Notes and holders
of Senior Debt of the Company. Nothing in this Indenture shall:
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(1) impair, as between the Company and Holders of Notes, the
obligation of the Company, which is absolute and unconditional, to pay
principal of, premium, if any, interest and Liquidated Damages, if any, on
the Notes in accordance with their terms;
(2) affect the relative rights of Holders of Notes and creditors of
the Company other than their rights in relation to holders of Senior Debt
of the Company; or
(3) prevent the Trustee or any Holder of Notes from exercising its
available remedies upon a Default or an Event of Default, subject to the
rights of holders and owners of Senior Debt of the Company to receive
distributions and payments otherwise payable to Holders of Notes.
If the Company fails because of this Article 10 to pay principal of,
premium, if any, interest or Liquidated Damages, if any, on, a Note on the due
date, the failure is nevertheless a Default or an Event of Default.
SECTION 10.09. Subordination May Not be Impaired by Company
No right of any holder of Senior Debt of the Company to enforce the
subordination of the Indebtedness evidenced by the Notes shall be impaired by
any act or failure to act by the Company or any Holder or by the failure of the
Company or any Holder to comply with this Indenture.
SECTION 10.10. Distribution or Notice to Representative
Whenever a distribution is to be made or a notice given to holders of
Senior Debt of the Company, the distribution may be made and the notice given to
their representative.
Upon any payment or distribution of assets of the Company referred to in
this Article 10, the Trustee and the Holders of the Notes shall be entitled to
conclusively rely upon any order or decree made by any court of competent
jurisdiction or upon any certificate of such representative or of the
liquidating trustee or agent or other Person making any distribution to the
Trustee or to the Holders of the Notes for the purpose of ascertaining the
Persons entitled to participate in such distribution, the holders of the Senior
Debt and other Indebtedness of the Company, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article 10.
SECTION 10.11. Rights of Trustee and Paying Agent
Notwithstanding the provisions of this Article 10 or any other provision of
this Indenture, the Trustee shall not be charged with knowledge of the existence
of any facts that would prohibit the making of any payment or distribution by
the Trustee, and the Trustee and the Paying Agent may continue to make payments
on the Notes, unless a Responsible Officer of the Trustee shall have received at
its Corporate Trust Office at least five Business Days prior to the date of such
payment written notice of facts that would cause the payment of any principal
of, premium, if any, interest or Liquidated Damages, if any, on, the Notes to
violate this Article 10. Only the Company or a representative may give the
notice. Nothing in this Article 10 shall impair the claims of, or payments to,
the Trustee under or pursuant to Section 7.07 hereof.
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The Trustee in its individual or any other capacity may hold Senior Debt
with the same rights it would have if it were not Trustee. Any Agent may do the
same with like rights.
SECTION 10.12. Authorization to Effect Subordination
Each Holder of a Note by the Holder's acceptance thereof authorizes and
directs the Trustee on such Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article 10, and appoints the Trustee to act as such Holder's attorney-in-fact
for any and all such purposes. If the Trustee does not file a proper proof of
claim or proof of debt in the form required in any proceeding referred to in
Section 6.09 hereof at least 30 days before the expiration of the time to file
such claim, a representative of Designated Senior Debt of the Company is hereby
authorized to file an appropriate claim for and on behalf of the Holders of
Notes.
ARTICLE 11
SATISFACTION AND DISCHARGE
SECTION 11.01. Satisfaction and Discharge of Indenture
This Indenture shall be discharged and will cease to be of further effect
as to all Notes issued hereunder, except for Sections 7.07 and 8.05(b) hereof,
which shall survive the satisfaction and discharge of this Indenture, when
either
(a) all such Notes theretofore authenticated and delivered (except lost,
stolen or destroyed Notes which have been replaced or paid and Notes for whose
payment money has theretofore been deposited in trust and thereafter repaid to
the Company) have been delivered to the Trustee for cancellation; or
(b) (i) all such Notes not theretofore delivered to the Trustee for
cancellation have become due and payable, will become due and payable within one
year or are to be called for redemption within one year under irrevocable
arrangements satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name and at the expense of the Company and the Company has
irrevocably deposited or caused to be deposited with the Trustee, in trust,
funds in an amount sufficient to pay and discharge the entire indebtedness on
the Notes not theretofore delivered to the Trustee for cancellation, for
principal of (and premium, if any, on) and interest and Liquidated Damages, if
any, to the date of maturity or date of redemption,
(ii) the Company has paid or caused to be paid all sums payable by the
Company under this Indenture, and
(iii) the Company has delivered an Officers' Certificate and an
Opinion of Counsel to the Trustee stating that all conditions precedent to
satisfaction and discharge have been satisfied.
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SECTION 11.02. Application of Trust Money
Subject to the provisions of the last paragraph of Section 4.03 all money
deposited with the Trustee pursuant to Section 11.01 hereof shall be held in
trust and applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent as the
Trustee may determine, to Persons entitled thereto, of the principal (and
premium, if any) and interest and Liquidated Damages, if any, for whose payment
such money has been deposited with the Trustee.
If the Trustee or Paying Agent is unable to apply any money in accordance
with Section 11.01 hereof by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's and any Guarantor's obligations under this Indenture
and the Notes shall be revived and reinstated as though no such deposit had
occurred pursuant to Section 11.01 hereof; provided that if the Company or any
Guarantor has made any payment of principal of, premium, if any, or interest or
Liquidated Damages, if any, on, any Notes following the reinstatement of its
obligations, the Company or such Guarantor shall be subrogated to the rights of
the Holders of such Notes to receive such payment from the money held by the
Trustee or Paying Agent.
ARTICLE 12
SUBSIDIARY GUARANTEES
SECTION 12.01. Subsidiary Guarantee
For value received, the Guarantors, jointly and severally, hereby
unconditionally guarantee to the Holders of the Notes and to the Trustee the due
and punctual payment of the principal of, premium, if any, and interest and
Liquidated Damages, if any, (including interest and Liquidated Damages, if any,
accruing on or after the filing of a petition in bankruptcy or reorganization
relating to the Company, whether or not a claim for post-filing interest or
Liquidated Damages is allowed in such proceeding) on, the Notes, and all other
amounts payable by the Company under the Notes and under this Indenture
(collectively, the "Guaranteed Obligations"), when and as the same shall become
due and payable, whether at the stated maturity or by declaration of
acceleration, call for redemption or otherwise, according to the terms of the
Notes and this Indenture. Each Subsidiary Guarantee pursuant to this Article 12
constitutes a guarantee of payment in full when due and not merely a guarantee
of collectibility. Notwithstanding the foregoing, each Guarantor's liability
under this Section 12.01 shall be limited to the maximum amount that would not
result in such Guarantor's Subsidiary Guarantee under this Section 12.01
constituting a fraudulent conveyance or fraudulent transfer under applicable
law.
SECTION 12.02. Obligation of the Guarantors Unconditional
Except as provided in Section 12.06 hereof, the obligations of each
Guarantor hereunder shall be as aforesaid absolute and unconditional, and shall
not be impaired, modified, released or limited by any occurrence or condition
whatsoever, including, without limitation, (i) any compromise, settlement,
release, waiver, renewal, extension, indulgence or modification of, or
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any change in, any of the obligations and liabilities of the Company contained
in the Notes or this Indenture, (ii) any impairment, modification, release or
limitation of the liability of the Company or its estate in bankruptcy, or any
remedy for the enforcement thereof, resulting from the operation of any present
or future provision of any applicable Bankruptcy Law, as amended, or other
statute or from the decision of any court, (iii) the assertion or exercise by
the Company, the Holders of Notes or the Trustee of any rights or remedies under
the Notes or this Indenture or their delay in or failure to assert or exercise
any such rights or remedies, (iv) the assignment or the purported assignment of
any property as additional security for the Notes, including all or any part of
the rights of the Company under this Indenture, (v) the extension of the time
for payment by the Company of any payments or other sums or any part thereof
owing or payable under any of the terms and provisions of the Notes or this
Indenture or of the time for performance by the Company of any other obligations
under or arising out of any such terms and provisions or the extension or the
renewal of any thereof, (vi) the modification or amendment (whether material or
otherwise) of any duty, agreement or obligation of the Company set forth in this
Indenture or the Notes, (vii) the voluntary or involuntary liquidation,
dissolution, sale or other disposition of all or substantially all of the
assets, marshalling of assets and liabilities, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of, or other similar proceeding
affecting, the Company, or any of the Guarantors or any of their respective
assets, or the disaffirmance of this Subsidiary Guarantee pursuant to this
Article 12 or the Notes or this Indenture in any such proceeding, (viii) the
release or discharge of the Company from the performance or observance of any
agreement, covenant, term or condition contained in any of such instruments by
operation of law, (ix) the unenforceability of the Notes or this Indenture or
any Subsidiary Guarantee pursuant to this Article 12, or (x) any other
circumstance which might otherwise constitute a legal or equitable discharge of
a surety or guarantor.
SECTION 12.03. Waiver Relating to Subsidiary Guarantees
Each Guarantor hereby (i) waives diligence, presentment, demand of payment,
filing of claims with a court in the event of the merger, insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Company or to realize on any collateral, protest or notice with respect to the
Guaranteed Obligations and all demands whatsoever, (ii) acknowledges that any
agreement, instrument or document evidencing the Guaranteed Obligations may be
transferred and that the benefit of its obligations hereunder shall extend to
each holder of any agreement, instrument or document evidencing the Guaranteed
Obligations without notice to them, and (iii) covenants that its Subsidiary
Guarantee pursuant to this Article 12 will not be discharged except pursuant to
Section 12.05 hereof or by complete payment and performance of the Guaranteed
Obligations and of its Subsidiary Guarantee pursuant to this Article 12.
SECTION 12.04. Subordination of Subsidiary Guarantees
Each Guarantee of a Guarantor under this Article 12 is subordinate and
junior in right of payment to the prior payment in full, in cash, or at the
option of the holders of Senior Debt of such Guarantor, in Cash Equivalents, of
all Senior Debt of such Guarantor, including any Guarantee issued by such
Guarantor that constitutes Senior Debt of such Guarantor, to the same extent and
in the same manner to which the Notes are subordinated pursuant to Article 10
hereof
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to the Senior Debt of the Company, and all provisions of Article 10 hereof
applicable to the subordination of the Notes shall similarly apply to the
subordination of the Subsidiary Guarantees pursuant to this Article 12.
SECTION 12.05. Guarantors May Consolidate, etc., on Certain Terms
Subject to Section 12.06 hereof, no Guarantor (including any existing or
future Restricted Subsidiary that becomes an additional Guarantor) may
consolidate with or merge with or into (whether or not such Guarantor is the
surviving Person) another Person, whether or not affiliated with such Guarantor,
or sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its properties or assets in one or more related
transactions to another Person, unless (i) the Person formed by or surviving any
such consolidation or merger (if other than such Guarantor) or to which such
sale, assignment, transfer, lease, conveyance or other disposition shall have
been made is a Person organized and existing under the laws of the United States
of America, any state thereof, or the District of Columbia and expressly assumes
all the obligations of such Guarantor, pursuant to a supplemental indenture in
form and substance reasonably satisfactory to the Trustee, under the Notes and
this Indenture and (ii) immediately after giving effect to such transaction, no
Default or Event of Default exists. In connection with any consolidation or
merger contemplated by this Section 12.05, the Company shall deliver to the
Trustee prior to the consummation of the proposed transaction an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation or
merger and such supplemental indenture comply with this Article 12 and that all
conditions precedent herein provided relating to such transaction have been
complied with.
The provisions of clause (i) of the preceding paragraph shall not apply if
the Person formed by or surviving the relevant consolidation or merger or to
which the relevant sale, assignment, transfer, lease, conveyance or other
disposition shall have been made is the Company, a Guarantor or a Person that is
not, after giving effect to such transaction, a Restricted Subsidiary of the
Company.
SECTION 12.06. Release of Subsidiary Guarantee
In the event of (i) a merger or consolidation to which a Guarantor is a
party, then the Person formed by or surviving such merger or consolidation (if,
after giving effect to such transaction, other than the Company or a Restricted
Subsidiary of the Company) shall be released and discharged from the obligations
of such Guarantor under its Subsidiary Guarantee, (ii) a sale or other
disposition (whether by merger, consolidation or otherwise) of all of the Equity
Interests of a Guarantor at the time owned by the Company and its Restricted
Subsidiaries to any Person that, after giving effect to such transaction, is
neither the Company nor a Restricted Subsidiary of the Company, or (iii) the
release and discharge of a Guarantor from all obligations under Guarantees of
(x) Obligations under the Credit Agreement and (y) any other Indebtedness of the
Company or any of its Restricted Subsidiaries, then, in each such case, such
Guarantor shall be released and discharged from its obligations under its
Subsidiary Guarantee; provided that, in the case of each of clauses (i) and (ii)
above, (A) the relevant transaction is in compliance with the terms of this
Indenture and (B) the Person being released and discharged shall have been
released and discharged from all obligations it might otherwise have under
Guarantees of Indebtedness of the Company or any of its Restricted Subsidiaries
and, in the case of each of
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clauses (i), (ii) and (iii) above, immediately after giving effect to such
transaction, no Default or Event of Default shall exist.
Upon any Guarantor ceasing to be a Guarantor pursuant to any provision of
this Indenture, at the request of the Company which request shall be accompanied
by an Officers' Certificate and an Opinion of Counsel, each certifying that no
Event of Default (or event or condition which with the giving of notice or the
passage of time would become an Event of Default) exists and is continuing and
that all conditions precedent herein provided relating to this Section 12.06
have been complied with, the Trustee shall execute and deliver an appropriate
instrument evidencing any such release. Any Guarantor not released from its
obligations under its Guarantee shall remain liable for the full amount of
principal of, premium, if any, and interest and Liquidated Damages, if any, on
the Notes and for the other obligations of such Guarantor under this Indenture
as and to the extent provided in this Indenture.
SECTION 12.07. Contribution of Guarantors
In the event that any Guarantor (such Guarantor being herein referred to as
the "Funding Party") shall make a payment under its Subsidiary Guarantee
pursuant to this Article 12, it shall be entitled to a contribution from each
other Guarantor (each, a "Contributor") in the amount of such Contributor's pro
rata share of the amount of such payment by such Funding Party so long as
exercise of such right does not impair the rights of Holders of Notes under any
Subsidiary Guarantee. The failure of a Contributor to discharge its obligations
under this Section 12.07 shall not affect the obligations of any Guarantor under
its Subsidiary Guarantee pursuant to this Article 12. The obligations under this
Section 12.07 shall be unaffected by any of the events described in Section
12.02 or any comparable events pertaining to the Funding Party, its Subsidiary
Guarantee or the undertakings in this Section 12.07.
SECTION 12.08. Reinstatement of Subsidiary Guarantees
Each Guarantee pursuant to this Article 12 shall, to the fullest extent
permitted by law, continue to be effective or be reinstated, as the case may be,
if at any time payment and performance of any of the Guaranteed Obligations is,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise be
restored or returned by any Holder of Notes or by the Trustee, whether as a
"voidable preference," "fraudulent conveyance," "fraudulent transfer," or
otherwise, all as though such payment or performance had not been made. In the
event that any payment, or any part thereof, is rescinded, reduced, restored or
returned, the Guaranteed Obligations shall, to the fullest extent permitted by
law, be reinstated and deemed reduced only by such amount paid and not so
rescinded, reduced, restored or returned.
ARTICLE 13
MISCELLANEOUS
SECTION 13.01. Trust Indenture Act Controls
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by TIA ss. 318(c), the imposed duties shall control.
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SECTION 13.02. Notices
Any notice or communication by the Company, any Guarantor or the Trustee to
the others is duly given if in writing and delivered by hand delivery, by
first-class mail (registered or certified, return receipt requested), by
facsimile or by overnight air courier guaranteeing next day delivery, to the
others' addresses as follows:
If to the Company or any Guarantor:
Vail Resorts, Inc.
137 Benchmark Road
Avon, Colorado 81620
Attention: James P. Donohue
Chief Financial Officer
Telecopier No.: (970) 845-2521
If to the Trustee:
The Bank of New York
c/o United States Trust Company of New York
114 West 47th Street
New York, New York 10036
Attention: Corporate Trust Department
Telecopier No.: (212) 852-1625
The Company, any Guarantor or the Trustee by notice to the others may
designate additional or different addresses of subsequent notices or
communications.
All notices and communications (other than those sent to Holders of Notes)
shall be deemed to have been duly received: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt is confirmed, if sent by facsimile; and
the next Business Day after timely delivery to the courier, if sent by overnight
air courier guaranteeing next day delivery.
Any notice or communication to a Holder of Notes shall be mailed by
first-class mail, certified or registered, return receipt requested, to his
address shown on the register kept by the Registrar. Failure to mail a notice or
communication to a Holder of Notes or any defect in it shall not affect its
sufficiency with respect to other Holders of Notes.
If a notice or communication is mailed in the manner provided above within
the time prescribed, it is duly given, whether or not the addressee receives it.
If the Company mails a notice or communication to Holders of Notes, it
shall mail a copy to the Trustee and each Agent at the same time.
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SECTION 13.03. Communication by Holders with Other Holders
Holders of Notes may communicate pursuant to TIA ss.312(b) with other
Holders of Notes with respect to their rights under this Indenture or the Notes.
The Company, any Guarantor, the Trustee, the Registrar and anyone else shall
have the protection of TIA ss.312(c). Upon qualification of this Indenture under
the TIA, the Trustee shall otherwise comply with TIA ss.312(b).
SECTION 13.04. Certificate and Opinion as to Conditions Precedent
Upon any request or application by the Company and/or any Guarantor to the
Trustee to take any action under this Indenture, the Company and/or any
Guarantor, as the case may be, shall furnish to the Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 1.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 1.05 hereof) stating that, in the opinion of such counsel, all
such conditions precedent and covenants have been complied with.
SECTION 13.05. Rules by Trustee and Agents
The Trustee may make reasonable rules for action by or at a meeting of
Holders of Notes. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
SECTION 13.06. Legal Holidays
In any case where any Interest Payment Date, any date established for
payment of Defaulted Interest pursuant to Section 2.12 hereof, or any Maturity
with respect to any Note shall not be a Business Day, then (notwithstanding any
other provisions of this Indenture) or the Notes payment of interest or
Liquidated Damages, if any, or principal (and premium, if any) need not be made
on such date but may be made on the next succeeding Business Day with the same
force and effect as if made on the Interest Payment Date or date established for
payment of Defaulted Interest pursuant to Section 2.12 hereof or Maturity, and
no interest shall accrue with respect to such payment for the period from and
after such Interest Payment Date or date established for payment of Defaulted
Interest pursuant to Section 2.12 or Maturity, as the case may be, to the next
succeeding Business Day.
SECTION 13.07. No Personal Liability of Directors, Officers, Employees,
Incorporators and Stockholders
No director, officer, employee, incorporator or stockholder of the Company
or any Guarantor, as such, shall have any liability for any obligations of the
Company or such
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Guarantor under the Notes or this Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder of
Notes by accepting a Note waives and releases all such liability. The waiver and
release shall be part of the consideration for the issuance of the Notes.
SECTION 13.08. Governing Law; Submission to Jurisdiction
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICT OF LAWS. BY THE EXECUTION AND DELIVERY OF THIS
INDENTURE, EACH OF THE COMPANY AND THE GUARANTORS SUBMITS TO THE JURISDICTION OF
ANY FEDERAL OR STATE COURT IN THE STATE OF NEW YORK IN ANY SUIT OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE.
SECTION 13.09. No Adverse Interpretation of Other Agreements
This Indenture may not be used to interpret any other indenture, loan or
debt agreement of the Company or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 13.10. Successors and Assigns
All covenants and agreements in this Indenture and the Notes by the Company
and the Guarantors shall bind their respective successors and assigns. All
covenants and agreements in this Indenture by the Trustee shall bind its
successor and assigns.
SECTION 13.11. Severability
In case any one or more of the provisions in this Indenture or in the Notes
shall be held invalid, illegal or unenforceable in any jurisdiction, in any
respect for any reason, the validity, legality and enforceability of any such
provision in every other jurisdiction and in every other respect, and of the
remaining provisions, shall not in any way be affected or impaired thereby, it
being intended that all of the provisions hereof shall be enforceable to the
full extent permitted by law.
SECTION 13.12. Counterpart Originals
This Indenture may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all of them together shall represent the
same agreement.
SECTION 13.13. Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the Articles
and Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof and shall in no way modify or
restrict any of the terms or provisions hereof.
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[Signatures on following pages]
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IN WITNESS WHEREOF, the undersigned have caused this Indenture to be
executed as of the date first above written.
VAIL RESORTS, INC.
By: /s/ James P. Donohue
-------------------------------------
Name: James P. Donohue
Title: Senior Vice President
[Indenture Signature Page for the Company]
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Beaver Creek Associates, Inc.
Beaver Creek Consultants, Inc.
Beaver Creek Food Services, Inc.
Breckenridge Resort Properties, Inc.
Complete Telecommunications, Inc.
GHTV, Inc.
Gillett Broadcasting, Inc.
Grand Teton Lodge Company
Jackson Hole Golf and Tennis Club, Inc.
JHL&S LLC
Keystone Conference Services, Inc.
Keystone Development Sales, Inc.
Keystone Food and Beverage Company
Keystone Resort Property Management Company
Larkspur Restaurant & Bar, LLC
Lodge Properties, Inc.
Lodge Realty, Inc.
Property Management Acquisition Corp., Inc.
Teton Hospitality LLC
Teton Hospitality Services, Inc.
The Vail Corporation
The Village at Breckenridge Acquisition Corp., Inc.
Vail Associates Consultants, Inc.
Vail Associates Holdings, Ltd.
Vail Associates Management Company
Vail Associates Real Estate, Inc.
Vail Food Services, Inc.
Vail Holdings, Inc.
Vail Resorts Development Company
Vail Summit Resorts, Inc.
Vail Trademarks, Inc.
Vail/Arrowhead, Inc.
Vail/Battle Mountain, Inc.
Vail/Beaver Creek Resort Properties, Inc.
VAMHC, Inc.
Vail RR, Inc.
VA Rancho Mirage I, Inc.
VA Rancho Mirage II, Inc.
Each by its authorized officer:
By: /s/ James P. Donohue
--------------------------------
Name: James P. Donohue
Title: Senior Vice President
[Indenture Signature Page for Guarantors]
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THE BANK OF NEW YORK, as Trustee
By: /s/ Cynthia Chaney
-------------------------------
Name: Cynthia Chaney
Title: Authorized Signer
[Indenture Signature Page for Trustee]
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EXHIBIT A
[Face of Note]
[FOR GLOBAL NOTES: THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY
BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY
BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE
INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE
MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF
THE COMPANY.]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS,
EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) (A "QIB") OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING
THE NOTE EVIDENCED HEREBY IN AN OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL
NOT, WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR
OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY
THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES
TO AN ACCREDITED INVESTOR (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER
THE SECURITIES ACT) THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON
ITS BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER
OF THIS SECURITY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE FOR
THIS SECURITY), (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (E) PURSUANT
TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF AVAILABLE), OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS
SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THIS SECURITY WITHIN ONE YEAR AFTER THE ORIGINAL
ISSUANCE OF THIS SECURITY, IF THE PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR,
THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH THE TRUSTEE AND THE COMPANY
SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY
REASONABLY
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REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED
STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER
THE SECURITIES ACT.
CUSIP: ______________
No. ____ U.S.$______________
VAIL RESORTS, INC.
8 3/4% Senior Subordinated Notes due 2009
VAIL RESORTS, INC., a Delaware corporation. for value received, promises to
pay to __________________________, or its registered assigns, the principal sum
of _____________________________________ AND NO/100 UNITED STATES DOLLARS
(U.S.$___________) on May 15, 2009.
Interest Payment Dates: May 15 and November 15
Record Dates: May 1 and November 1
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Company has caused this Note to be signed manually
or by facsimile by its duly authorized officers.
VAIL RESORTS, INC.
By:______________________________________
Name:
Title:
By:______________________________________
Name:
Title:
Dated:
(Trustee's Certificate of Authentication)
This is one of the Notes referred to
in the within-mentioned Indenture:
THE BANK OF NEW YORK, as Trustee
By: __________________________________
Authorized Signatory
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[Reverse Side of Note]
VAIL RESORTS, INC.
8 3/4% Senior Subordinated Notes due 2009
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
1. Interest.
VAIL RESORTS, INC., a Delaware corporation (the "Company", which term
includes any successor under the Indenture hereinafter referred to), promises to
pay interest on the principal amount of this Note at 8 3/4% per annum from
November 21, 2001 until maturity and to pay Liquidated Damages, if any, payable
pursuant to the Registration Rights Agreement referred to below. The Company
will pay interest and Liquidated Damages, if any, semi-annually in arrears on
May 15 and November 15 of each year, or if any such day is not a Business Day,
on the next succeeding Business Day (each, an "Interest Payment Date"). Interest
on the Notes will accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from the date of issuance; provided that
if there is no existing Default in the payment of interest, and if this Note is
authenticated between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; provided, further, that the first Interest
Payment Date shall be May 15, 2002. The Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal and premium, if any, from time to time on demand at a rate equal to 1%
per annum in excess of the rate then in effect; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and Liquidated Damages, if any (without regard to any
applicable grace periods), from time to time on demand at the same rate to the
extent lawful. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
2. Method of Payment.
The Company will pay interest on the Notes (except defaulted interest) and
Liquidated Damages, if any, to the Persons who are registered Holders of Notes
at the close of business on the May 1 or November 1 next preceding the Interest
Payment Date, even if such Notes are canceled after such record date and on or
before such Interest Payment Date, except as provided in Section 2.12 of the
Indenture with respect to defaulted interest. The Notes will be payable as to
principal, premium and Liquidated Damages, if any, and interest at the office or
agency of the Company maintained for such purpose within or without the City and
State of New York, or, at the option of the Company, payment of interest and
Liquidated Damages, if any, may be made by check mailed to the Holders at their
addresses set forth in the register of Holders, and provided that payment by
wire transfer of immediately available funds will be required with respect to
principal of and interest, premium and Liquidated Damages, if any, on, all
Global Notes and all other Notes the Holders of which shall have provided wire
transfer instructions to the Company or the Paying Agent. Such payment shall be
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
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3. Paying Agent and Registrar.
Initially, The Bank of New York, the Trustee under the Indenture, will act
as Paying Agent and Registrar. The Company may change any Paying Agent or
Registrar without notice to any Holder. The Company or any of its Subsidiaries
may not act in any such capacity.
4. Indenture.
The Company issued the Notes under an Indenture dated as of November 21,
2001 (the "Indenture") among the Company, the Guarantors named on the signature
pages thereto and the Trustee. The terms of the Notes include those stated in
the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code ss.ss. 77aaa-77bbbb). The Notes
are subject to all such terms, and Holders are referred to the Indenture and
such Act for a statement of such terms. To the extent any provision of this Note
conflicts with the express provisions of the Indenture, the provisions of the
Indenture shall govern and be controlling. The Notes are general obligations of
the Company limited to $300 million in aggregate principal amount.
5. Optional Redemption.
(a) Except as set forth in subparagraphs (b) and (c) of this Paragraph 5,
the Company shall not have the option to redeem the Notes prior to May 15, 2004.
Thereafter, the Company shall have the option to redeem the Notes, in whole or
in part, upon not less than 30 nor more than 60 days' notice, at the redemption
prices (expressed as percentages of principal amount) set forth below plus
accrued and unpaid interest and Liquidated Damages, if any, thereon to the
applicable redemption date, if redeemed during the twelve-month period beginning
on May 15 of the years indicated below:
Year Percentage
---- ----------
2004 ................................... 104.375%
2005 ................................... 102.916%
2006 ................................... 101.458%
2007 and thereafter .................... 100.000%
(b) Notwithstanding the provisions of subparagraph (a) of this Paragraph 5,
at any time on or prior to May 15, 2002, the Company may on one or more
occasions redeem up to 35% of the aggregate principal amount of Notes
theretofore issued under the Indenture at a redemption price of 108.75% of the
principal amount thereof, plus accrued and unpaid interest and Liquidated
Damages, if any, to the redemption date, with the net cash proceeds of one or
more Equity Offerings; provided that (i) at least 65% of the aggregate principal
amount of Notes theretofore issued remains outstanding immediately following
each such redemption and (ii) the redemption shall occur within 60 days of the
closing of any such Equity Offering.
(c) In addition, at any time prior to May 15, 2004, following the
occurrence of a Change of Control, the Notes will be subject to redemption at
the option of the Company, in whole or in part, upon not less than 30 nor more
than 60 days' notice given within 30 days following such Change of Control, at
the Make-Whole Price, plus accrued and unpaid interest and Liquidated Damages,
if any, thereon to the applicable Redemption Date.
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6. Notice of Redemption.
A notice of redemption will be mailed at least 30 days but not more than 60
days before the redemption date to each Holder whose Notes are to be redeemed at
its registered address. Notes in denominations larger than $1,000 may be
redeemed in part but only in whole multiples of $1,000. On and after the
redemption date, unless the Company defaults in making the redemption payments,
interest and Liquidated Damages, if any, ceases to accrue on Notes or portions
thereof called for redemption.
7. Mandatory Redemption.
Except as set forth in paragraph 8 below, the Company shall not be required
to make mandatory redemption payments with respect to the Notes.
8. Repurchase at Option of Holder.
(a) If there is a Change of Control, unless notice of redemption of the
Notes in whole has been given pursuant to Sections 3.04 and 3.08 of the
Indenture, the Company shall be required to make an offer (a "Change of Control
Offer") to purchase all or any part (equal to $1,000 or an integral multiple
thereof) of each Holder's Notes at an offer price in cash equal to 101% of the
aggregate principal amount thereof, plus accrued and unpaid interest and
Liquidated Damages, if any, thereon to the date of purchase (the "Change of
Control Payment"). Notice of a Change of Control Offer shall be mailed within 30
days following a Change of Control to each Holder of the Notes containing the
information set forth in Section 4.17 of the Indenture.
(b) When the aggregate amount of Excess Proceeds from one or more Asset
Sales exceeds $10.0 million, the Company shall make an offer to all Holders of
Notes (and holders of other Indebtedness of the Company to the extent required
by the terms of such other Indebtedness) (an "Asset Sale Offer") to purchase the
maximum principal amount of Notes (and other such Indebtedness) that does not
exceed the Excess Proceeds at an offer price in cash in an amount equal to 100%
of the principal amount thereof, plus accrued and unpaid interest and Liquidated
Damages, if any, thereon to the date of purchase, in accordance with the
procedures set forth in the Indenture. To the extent that the aggregate
principal amount of Notes (and such other Indebtedness) tendered pursuant to an
Asset Sale Offer is less than the Excess Proceeds, the Company may use any
remaining Excess Proceeds for general corporate purposes. If the aggregate
principal amount of Notes (and such other Indebtedness) tendered exceeds the
amount of Excess Proceeds, the Notes (and such other Indebtedness) to be
purchased shall be selected on a pro rata basis.
9. Denominations, Transfer, Exchange.
The Notes are in registered form without coupons in denominations of $1,000
and integral multiples of $1,000. The transfer of Notes may be registered and
Notes may be exchanged as provided in the Indenture. The Registrar and the
Trustee may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and the Company may require a Holder to pay
any taxes and fees required by law or permitted by the Indenture. The Company
need not exchange or register the transfer of any Note or portion of a Note
selected for redemption, except for the unredeemed portion of any Note being
redeemed in
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part. Also, the Company need not exchange or register the transfer of any Notes
for a period of 15 days before the day of any selection of Notes to be redeemed
or during the period between a record date and the corresponding Interest
Payment Date.
10. Persons Deemed Owners.
The registered Holder of a Note may be treated as its owner for all
purposes.
11. Amendment, Supplement And Waiver.
Subject to certain exceptions, the Indenture or the Notes may be amended or
supplemented with the consent of the Holders of at least a majority in principal
amount of the then outstanding Notes, and any existing default or compliance
with any provision of the Indenture or the Notes may be waived with the consent
of the Holders of a majority in principal amount of the then outstanding Notes.
Without the consent of any Holder of a Note, the Indenture or the Notes may be
amended or supplemented to cure any ambiguity, defect or inconsistency, to
provide for uncertificated Notes in addition to or in place of certificated
Notes, to provide for the assumption of the Company's or any Guarantor's
obligations to Holders of the Notes in case of a merger, consolidation or sale
of assets, to provide security for the Notes, to add a Guarantor, to make any
change that would provide any additional rights or benefits to the Holders of
the Notes or that does not adversely affect the legal rights under the Indenture
of any such Holder in any material respect, or to comply with the requirements
of the SEC in order to effect or maintain the qualification of the Indenture
under the Trust Indenture Act.
12. Events of Default And Remedies.
Events of Default include: (i) default for 30 days in the payment when due
of interest on, or Liquidated Damages, if any, with respect to, the Notes
(whether or not prohibited by Article 10 of the Indenture); (ii) default in
payment when due (whether payable at maturity, upon redemption or repurchase or
otherwise) of principal of or premium, if any, on the Notes (whether or not
prohibited by Article 10 of the Indenture); (iii) failure by the Company or its
Restricted Subsidiaries to comply with the provisions of Article 5 of the
Indenture; (iv) failure by the Company to comply with Sections 3.10, 4.16 or
4.17 of the Indenture (whether or not prohibited by Article 10 of the
Indenture), other than a failure to purchase Notes pursuant to an offer
commenced under such provisions, which shall be subject to clause (ii) above,
for 30 days after written notice by the Trustee or the Holders of at least 25%
in principal amount of the then outstanding Notes; (v) failure by the Company or
any of its Restricted Subsidiaries for 60 days after written notice by the
Trustee or the Holders of at least 25% in principal amount of the then
outstanding Notes to comply with any of its other agreements in the Indenture or
the Notes other than those referred to in clauses (i) through (iv) above; (vi)
default under any mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any Indebtedness for money
borrowed by the Company or any of its Significant Subsidiaries (or the payment
of which is guaranteed by the Company or any of its Significant Subsidiaries),
whether such Indebtedness or guarantee now exists, or is created after the
Closing Date, which default (a) is caused by a failure to pay principal after
final maturity of such Indebtedness prior to the expiration of the grace period
provided in such Indebtedness on the date of such default (a "Payment Default")
or (b) results in the acceleration of such Indebtedness prior to its express
maturity and, in each case, the principal amount of any such
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Indebtedness, together with the principal amount of any other such Indebtedness
under which there has been a Payment Default or the maturity of which has been
so accelerated, aggregates $10 million or more without such Indebtedness being
discharged or such acceleration having been cured, waived or rescinded within 30
days of acceleration; (vii) failure by the Company or any of its Significant
Subsidiaries to pay final judgments aggregating in excess of $10.0 million and
either (a) any creditor commences enforcement proceedings upon any such judgment
or (b) such judgments are not paid, discharged or stayed for a period of 60
days; (viii) except as permitted by the Indenture, any Guarantee of the Notes by
a Significant Subsidiary shall be held in any judicial proceeding to be
unenforceable or invalid or shall cease for any other reason to be in full force
and effect, or any Guarantor which is a Significant Subsidiary, or any Person
acting on behalf of any such Guarantor, shall deny or disaffirm its obligations
under its Subsidiary Guarantee; and (ix) certain events of bankruptcy or
insolvency with respect to the Company or any of its Restricted Subsidiaries
that is a Significant Subsidiary. If any Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Notes may declare all the Notes and all other Obligations
thereunder to be due and payable by notice in writing to the Company and the
Trustee. Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy or insolvency, with respect to the
Company, all outstanding Notes will become due and payable without further
action or notice. Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. Subject to certain limitations, Holders of a majority
in principal amount of the then outstanding Notes may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of the
Notes notice of any continuing Default or Event of Default (except a Default or
Event of Default relating to the payment of principal, premium, if any, interest
or Liquidated Damages, if any) if it determines that withholding notice is in
their interest. The Holders of a majority in aggregate principal amount of the
Notes then outstanding by notice to the Trustee may on behalf of the Holders of
all of the Notes waive any existing Default or Event of Default and its
consequences under the Indenture except a continuing Default or Event of Default
in the payment of principal of, premium and Liquidated Damages, if any, or
interest on the Notes.
13. Subordination.
Each Holder by accepting a Note agrees that the payment (by set-off,
redemption, repurchase or otherwise) of principal of, and premium, if any, and
interest and Liquidated Damages, if any, on, the Notes (including with respect
to any repurchases of the Notes) is subordinated in right of payment, to the
extent and in the manner provided in Article 10 of the Indenture, to the prior
payment in full in cash, or, at the option of holders of Senior Debt of the
Company, in Cash Equivalents, of all Obligations in respect of Senior Debt of
the Company, whether outstanding on the date of the Indenture or thereafter
incurred.
14. Subsidiary Guarantees.
Pursuant to the Indenture, payment of the Notes is guaranteed, jointly and
severally, on a senior subordinated basis by GHTV, Inc., a Delaware corporation,
Gillett Broadcasting, Inc., a Delaware corporation, Vail Holdings, Inc., a
Colorado corporation, The Vail Corporation, a Colorado corporation, Beaver Creek
Associates, Inc., a Colorado corporation, Beaver Creek Consultants, Inc., a
Colorado corporation, Breckenridge Resort Properties, Inc., a Colorado
corporation, Complete Telecommunications, Inc., a Colorado corporation, Grand
Teton Lodge
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Company, a Wyoming corporation, Jackson Hole Golf and Tennis Club, Inc., a
Wyoming corporation, JHL&S LLC, a Wyoming limited liability company, Larkspur
Restaurant & Bar, LLC, a Colorado limited liability company, Lodge Properties,
Inc., a Colorado corporation, Vail Food Services, Inc., a Colorado corporation,
Vail Resorts Development Company, a Colorado corporation, Vail Summit Resorts,
Inc., a Colorado corporation, Vail Trademarks, Inc., a Colorado corporation,
Vail/Arrowhead, Inc., a Colorado corporation, Vail/Beaver Creek Resort
Properties, Inc., a Colorado corporation, Beaver Creek Food Services, Inc., a
Colorado corporation, Lodge Realty, Inc., a Colorado corporation, Vail
Associates Consultants, Inc., a Colorado corporation, Vail Associates Holdings,
Ltd., a Colorado corporation, Vail Associates Management Company, a Colorado
corporation, Vail Associates Real Estate, Inc., a Colorado corporation,
Vail/Battle Mountain, Inc., a Colorado corporation, Keystone Conference
Services, Inc., a Colorado corporation, Keystone Development Sales, Inc., a
Colorado corporation, Keystone Food and Beverage Company, a Colorado
corporation, Keystone Resort Property Management Company, a Colorado
corporation, Property Management Acquisition Corp., Inc., a Tennessee
corporation, The Village at Breckenridge Acquisition Corp., Inc., a Tennessee
corporation, Teton Hospitality, LLC, a Wyoming limited liability company, Teton
Hospitality Services, Inc., a Wyoming corporation, VAHMC, Inc., a Colorado
corporation, Vail RR, Inc., a Colorado corporation, VA Rancho Mirage I, Inc., a
Colorado corporation, VA Rancho Mirage II, Inc., a Colorado corporation, and,
under certain circumstances set forth in the Indenture, may be guaranteed by
certain other Restricted Subsidiaries of the Company. Under certain
circumstances set forth in the Indenture, each of the Guarantors may be released
from its obligations under the Indenture and the Notes.
15. Trustee Dealings With Company.
The Trustee, in its individual or any other capacity, may make loans to,
accept deposits from, and perform services for the Company, any Guarantor or any
Affiliate of the Company, and may otherwise deal with the Company, any Guarantor
or any Affiliate of the Company, as if it were not the Trustee.
16. No Recourse Against Others.
No director, officer, employee, incorporator or stockholder, of the Company
or any Guarantor, as such, shall have any liability for any obligations of the
Company or such Guarantor under the Notes or the Indenture or for any claim
based on, in respect of, or by reason of, such obligations or their creation.
Each Holder by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for the issuance of the Notes.
17. Authentication.
This Note shall not be valid until authenticated by the manual signature of
the Trustee or an authenticating agent.
18. Abbreviations.
Customary abbreviations may be used in the name of a Holder or an assignee,
such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties),
JT TEN (= joint
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