Exhibit 4.3
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VAIL RESORTS, INC.
SENIOR DEBT SECURITIES
INDENTURE
Dated as of [ ], 20[ ]
[ ], Trustee
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
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310(a)(1)............................................... 7.08; 7.10
(a)(2)............................................. 7.08; 7.10
(a)(3)............................................. N.A.
(a)(4)............................................. N.A.
(a)(5)............................................. 7.08
(b)................................................ 7.08; 7.10; 10.02
(c)................................................ N.A.
311(a).................................................. 7.11
(b)................................................ 7.11
(c)................................................ N.A.
312(a).................................................. 2.06
(b)................................................ 10.03
(c)................................................ 10.03
313(a).................................................. 7.06
(b)(1)............................................. N.A.
(b)(2)............................................. 7.05
(c)................................................ 7.06; 10.02
(d)................................................ 7.06
314(a).................................................. 4.03; 4.04; 10.02
(b)................................................ N.A.
(c)(1)............................................. 10.04
(c)(2)............................................. 10.04
(c)(3)............................................. N.A.
(d)................................................ N.A.
(e)................................................ 10.05
(f)................................................ N.A.
315(a).................................................. 7.01(2)
(b)................................................ 7.05; 10.02
(c)................................................ 7.01(1)
(d)................................................ 7.01(3)
(e)................................................ 6.11
316(a)(last sentence)................................... 2.11
(a)(1)(A).......................................... 6.05
(a)(1)(B).......................................... 6.04
(a)(2)............................................. N.A.
(b)................................................ 6.07
(c)................................................ 9.04
317(a)(1)............................................... 6.08
(a)(2)............................................. 6.09
(b)................................................ 2.05
318(a).................................................. 10.01
(b)................................................ N.A.
(c)................................................ 10.01
N.A. means Not Applicable.
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of this Indenture.
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TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS
Section 1.01 Definitions.............................................1
Section 1.02 Other Definitions.......................................4
Section 1.03 Rules of Construction...................................4
ARTICLE 2
THE SECURITIES
Section 2.01 Issuable in Series......................................4
Section 2.02 Execution and Authentication............................6
Section 2.03 Bond Agents.............................................7
Section 2.04 Bearer Securities.......................................7
Section 2.05 Paying Agent to Hold Money in Trust.....................8
Section 2.06 Securityholder Lists....................................8
Section 2.07 Transfer and Exchange...................................9
Section 2.08 Replacement Securities..................................9
Section 2.09 Outstanding Securities..................................9
Section 2.10 Discounted Securities..................................10
Section 2.11 Treasury Securities....................................10
Section 2.12 Global Securities......................................10
Section 2.13 Temporary Securities...................................10
Section 2.14 Cancellation...........................................11
Section 2.15 Defaulted Interest.....................................11
ARTICLE 3
REDEMPTION
Section 3.01 Notices to Trustee.....................................11
Section 3.02 Selection of Securities to Be Redeemed.................12
Section 3.03 Notice of Redemption...................................12
Section 3.04 Effect of Notice of Redemption.........................13
Section 3.05 Payment of Redemption Price............................13
Section 3.06 Securities Redeemed in Part............................13
ARTICLE 4
COVENANTS
Section 4.01 Payment of Securities..................................14
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Section 4.02 Corporate Existence....................................14
Section 4.03 SEC Reports............................................14
Section 4.04 Annual Review Certificate..............................14
Section 4.05 Notice to Trustee of Certain Defaults..................15
Section 4.06 Further Assurances to Trustee..........................15
ARTICLE 5
SUCCESSORS
Section 5.01 When Company May Merge, etc............................15
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default......................................16
Section 6.02 Acceleration...........................................17
Section 6.03 Other Remedies.........................................18
Section 6.04 Waiver of Past Defaults................................18
Section 6.05 Control by Majority....................................18
Section 6.06 Limitations on Suits...................................18
Section 6.07 Rights of Holders to Receive Payment...................19
Section 6.08 Collection Suit by Trustee.............................19
Section 6.09 Trustee May File Proofs of Claims......................19
Section 6.10 Priorities.............................................19
Section 6.11 Undertaking for Costs..................................20
Section 6.12 Restoration of Rights and Remedies.....................20
Section 6.13 Rights and Remedies Cumulative.........................20
Section 6.14 Delay or Omission Not Waiver...........................20
Section 6.15 Waiver of Stay, Extension or Usury Laws................21
ARTICLE 7
TRUSTEE
Section 7.01 Duties of Trustee......................................21
Section 7.02 Rights of Trustee......................................22
Section 7.03 Individual Rights of Trustee...........................23
Section 7.04 Trustee's Disclaimer...................................24
Section 7.05 Notice of Defaults.....................................24
Section 7.06 Reports by Trustee to Holders of Securities............24
Section 7.07 Compensation and Indemnity.............................24
Section 7.08 Replacement of Trustee.................................26
Section 7.09 Successor Trustee by Merger, etc.......................27
Section 7.10 Eligibility; Disqualification..........................27
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Section 7.11 Preferential Collection of Claims Against Company......27
ARTICLE 8
DISCHARGE OF INDENTURE
Section 8.01 Defeasance.............................................27
Section 8.02 Conditions to Defeasance...............................28
Section 8.03 Application of Trust Money.............................29
Section 8.04 Repayment to Company...................................29
ARTICLE 9
AMENDMENTS
Section 9.01 Without Consent of Holders.............................29
Section 9.02 With Consent of Holders................................30
Section 9.03 Compliance with Trust Indenture Act....................30
Section 9.04 Effect of Consents.....................................31
Section 9.05 Notation on or Exchange of Securities..................31
ARTICLE 10
MISCELLANEOUS
Section 10.01 Trust Indenture Act....................................31
Section 10.02 Notices................................................31
Section 10.03 Communications by Holders with Other Holders...........32
Section 10.04 Certificate and Opinion as to Conditions Precedent.....32
Section 10.05 Statements Required in Certificate or Opinion..........33
Section 10.06 Rules by Company and Agents............................33
Section 10.07 Legal Holidays.........................................33
Section 10.08 No Recourse Against Others.............................33
Section 10.09 Duplicate Originals....................................33
Section 10.10 Governing Law..........................................33
Exhibit A Form of Registered Security............................. A-1
Exhibit B Form of Bearer Security Notes to Exhibits A and B....... B-1
Exhibit C Assignment Form......................................... C-1
Exhibit D Conversion Notice....................................... D-1
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INDENTURE dated as of [ ], 20[ ] between VAIL RESORTS, INC., a Delaware
corporation ("Company"), and [ ], a national banking association ("Trustee").
Each party agrees as follows for the benefit of the Holders of the
Company's debt securities issued under this Indenture:
ARTICLE 1
DEFINITIONS
Section 1.01 Definitions.
"Affiliate" means any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company.
"Agent" means any Registrar, Transfer Agent or Paying Agent.
"Authorized Newspaper" means a newspaper that is:
(1) printed in the English language or in an official language of the
country of publication;
(2) customarily published on each business day in the place of
publication; and
(3) of general circulation in the relevant place or in the financial
community of such place.
Whenever successive publications in an Authorized Newspaper are required,
they may be made on the same or different business days and in the same or
different Authorized Newspapers.
"Bearer Security" means a Security payable to bearer.
"Board" or "Board of Directors" means the Board of Directors of the Company
or any authorized committee of the Board.
"Bond Resolution" means a resolution adopted by the Board or by an Officer
or committee of Officers pursuant to Board delegation authorizing a series of
Securities.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of any person and all
warrants or options to acquire such capital stock.
"Common Stock" means the Common Stock, par value $0.01 per share, of the
Company or any security into which the Common Stock may be converted.
"Company" means the party named as such above until a successor replaces it
and thereafter means the successor.
"Corporate Trust Office" means the principal corporate trust office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which office is located at [ ].
"coupon" means an interest coupon for a Bearer Security.
"Default" with respect to a series of the Securities or to all series of
the Securities, as the case may be, means any event which is, or after notice or
passage of time would be, an Event of Default with respect to such series or to
all series of the Securities, as the case may be.
"Discounted Security" means a Security where the amount of principal due
upon acceleration is less than the stated principal amount.
"GAAP" shall mean 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 may be approved by a significant segment of the accounting
profession, which are applicable to the circumstances as in effect on the date
of this Indenture.
"Holder" or "Securityholder" means the person in whose name a Registered
Security is registered and the bearer of a Bearer Security or coupon.
"Indenture" means this Indenture and any Bond Resolution as amended from
time to time.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien or
charge of any kind whatsoever (including any conditional sale or other title
retention agreement, any lease in the nature thereof, and the filing of or
agreement to give any financing statement under the Uniform Commercial Code of
any jurisdiction) but in no event shall "Lien" include any defeasance pursuant
to Article 8 hereof.
"NASDAQ" means the National Association of Securities Dealers Automated
Quotation System.
"Officer" means the Chairman of the Board, the President, any Vice
President (including any Executive Vice President or Senior Vice President), the
Treasurer, any Assistant Treasurer, the Secretary, or the Controller of the
Company.
"Officers' Certificate" means a certificate signed by two Officers or by an
Officer and an Assistant Secretary or Assistant Controller of the Company.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company or the Trustee.
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"principal" of a debt security means the principal of the security plus the
premium, if and when applicable, on the security.
"Registered Security" means a Security registered as to principal and
interest by the Registrar.
"SEC" means the Securities and Exchange Commission.
"Securities" means the debt securities issued under this Indenture.
"series" means a series of Securities or the Securities of the series.
"Stock Trading Day" means each day on which the securities exchange or
quotation system which is used to determine the Market Price is open for trading
or quotation.
"Subsidiary" means any corporation, association or other business entity, a
majority (by number of votes) of the Voting Stock or control of which is at the
time owned or controlled by the Company or another Subsidiary of the Company.
"Surviving Person" means, with respect to any person involved in any
transaction or that makes any disposition, the person formed by or surviving
such transaction or disposition or the person with or to which such transaction
or disposition is made.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Section
77aaa-77bbbb) as in effect on the date of this Indenture.
"Treasury Regulations" means regulations of the U.S. Treasury Department
under the Internal Revenue Code of 1986, as amended.
"Trust Officer" means the Chairman of the Board, the President or any other
officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"Trustee" means the party named as such above until a successor replaces it
and thereafter means the successor.
"United States" or "U.S." means the United States of America, its
territories and possessions and other areas subject to its jurisdiction.
"Voting Stock" means stock of any class or classes (however designated)
having ordinary voting power for the election of a majority of the members of
the board of directors (or governing body) of such corporation, association or
other business entity, other than stock having such power only by reason of the
happening of a contingency.
"Yield to Maturity" means the yield to maturity on any Securities,
calculated at the time of issuance of such Securities, or, if applicable, at the
most recent redetermination of interest on such Securities, and calculated in
accordance with accepted financial practice.
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Section 1.02 Other Definitions.
Term Defined in Section
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"Bankruptcy Law".................................... 6.01
"Bearer Securities List"............................ 2.06
"Conversion Agent".................................. 2.03
"Custodian"......................................... 6.01
"Event of Default".................................. 6.01
"Legal Holiday"..................................... 10.07
"Paying Agent"...................................... 2.03
"Registrar"......................................... 2.03
"Transfer Agent".................................... 2.03
"U.S. Government Obligations"....................... 8.02
Section 1.03 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 in the United States;
(3) GAAP principles are those applicable and in effect on the date of
this Indenture;
(4) all 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 assigned to them by such definitions;
(5) "or" is not exclusive; and
(6) words in the singular include the plural, and in the plural
include the singular.
ARTICLE 2
THE SECURITIES
Section 2.01 Issuable in Series.
The aggregate principal amount of Securities that may be issued under this
Indenture is unlimited. The Securities may be issued from time to time in one or
more series. All Securities of any one series and all coupons, if any,
appertaining to Bearer Securities of such series shall be substantially
identical except as to currency of payments due thereunder, the denomination in
which the Securities are issuable, the rate or rates of interest, or method of
determining the rate of interest, if any, the maturity, the date from which
interest, if any, shall accrue and ex-
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cept as may otherwise be provided by the Company in or pursuant to a Bond
Resolution or in any supplemental indenture pertaining to such series of
Securities. Each series shall be created by a Bond Resolution or a supplemental
indenture that establishes the terms of the series, which may include the
following:
(1) the title of the series;
(2) the aggregate principal amount (or any limit on the aggregate
principal amount) of the series and, if any Securities of a series are to
be issued at a discount from their face amount, the method of computing the
accretion of such discount;
(3) the interest rate or rates, if any, or method of calculating the
interest rate;
(4) the date or dates from which interest will accrue;
(5) the record dates for interest payable on Registered Securities;
(6) the dates when principal and interest are payable;
(7) the manner of paying principal and interest;
(8) the places where principal and interest are payable;
(9) the Registrar, Transfer Agent and Paying Agent;
(10) the terms of any mandatory (including any sinking fund
requirements) or optional redemption by the Company;
(11) the terms of any repayment at the option of Holders;
(12) the denominations in which Securities are issuable;
(13) whether Securities will be issuable as Registered Securities or
Bearer Securities;
(14) whether and upon what terms Registered Securities and Bearer
Securities may be exchanged;
(15) whether any Securities will be represented by a Security in
global form;
(16) the terms of any global Security;
(17) the terms of any tax indemnity;
(18) the currencies (including any composite currency) in which
principal or interest may be paid;
(19) if payments of principal or interest may be made in a currency
other than that in which Securities are denominated, the manner for
determining such payments;
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(20) if amounts of principal or interest may be determined by
reference to an index, formula or other method, the manner for determining
such amounts;
(21) provisions for electronic issuance of Securities or for
Securities in uncertificated form;
(22) the portion of principal payable upon acceleration of a
Discounted Security;
(23) any Events of Default or covenants in addition to or in lieu of
those set forth in this Indenture;
(24) whether and upon what terms Securities may be defeased, if
different from the provisions set forth in this Indenture;
(25) the forms of the Securities or any coupon, which, unless the Bond
Resolution or supplemental indenture otherwise provides, shall be in the
form of Exhibit A or B or otherwise;
(26) any terms that may be required by or advisable under U.S. or
other applicable laws;
(27) the percentage of the principal amount of the Securities which is
payable if the maturity of the Securities is accelerated in the case of
Securities issued at a discount from their face amount;
(28) whether and upon what terms the Securities will be convertible
into or exchangeable for Common Stock of the Company; and
(29) any other terms not inconsistent with this Indenture.
All Securities of one series need not be issued at the same time and,
unless otherwise provided, a series may be reopened for issuances of additional
Securities of such series or to establish additional terms of such series of
Securities.
The creation and issuance of a series and the authentication and delivery
thereof are not subject to any conditions precedent.
Section 2.02 Execution and Authentication.
Two Officers shall sign the Securities by manual or facsimile signature.
The Company's seal may be reproduced on the Securities. An Officer shall sign
any coupons by facsimile signature.
If an Officer whose signature is on a Security or its coupons no longer
holds that office at the time the Security is authenticated or delivered, the
Security and coupons shall nevertheless be valid.
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A Security and its coupons shall not be valid until the Security is
authenticated by the manual signature of the Registrar. The signature shall be
conclusive evidence that the Security has been authenticated under this
Indenture.
Each Registered Security shall be dated the date of its authentication.
Each Bearer Security shall be dated the date of its original issuance or as
provided in the Bond Resolution.
Securities may have notations, legends or endorsements required by law,
stock exchange rule, agreement or usage.
Section 2.03 Bond Agents.
The Company shall maintain an office or agency where Securities may be
authenticated ("Registrar"), where Securities may be presented for registration
of transfer or for exchange ("Transfer Agent"), where Securities may be
presented for payment ("Paying Agent") and where Securities may be presented for
conversion ("Conversion Agent"). Whenever the Company must issue or deliver
Securities pursuant to this Indenture, the Registrar shall authenticate the
Securities at the Company's written request. The Transfer Agent shall keep a
register of the Securities and of their transfer and exchange.
The Company may appoint more than one Registrar, Transfer Agent, Paying
Agent or Conversion Agent for a series. The Company shall notify the Trustee of
the name and address of any Agent not a party to this Indenture. If the Company
fails to maintain a Registrar, Transfer Agent, Paying Agent or Conversion Agent
for a series, the Trustee shall act as such.
Section 2.04 Bearer Securities.
U.S. laws and Treasury Regulations restrict sales or exchanges of and
payments on Bearer Securities. Therefore, except as provided below:
(1) Bearer Securities will be offered, sold and delivered only outside
the United States and will be delivered only upon presentation of a
certificate in a form prescribed by the Company to comply with U.S. laws
and regulations.
(2) Bearer Securities will not be issued in exchange for Registered
Securities.
(3) All payments of principal and interest (including original issue
discount) on Bearer Securities will be made outside the United States by a
Paying Agent located outside the United States unless the Company
determines that:
(A) such payments may not be made by such Paying Agent because
the payments are illegal or prevented by exchange controls as
described in Treasury Regulation Section 1.163-5(c)(2)(v); and
(B) making the payments in the United States would not have an
adverse tax effect on the Company.
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If there is a change in the relevant provisions of U.S. laws or Treasury
Regulations or the judicial or administrative interpretation thereof, a
restriction set forth in paragraph (1), (2) or (3) above will not apply to a
series if the Company determines that the relevant provisions no longer apply to
the series or that failure to comply with the relevant provisions would not have
an adverse tax effect on the Company or on Securityholders or cause the series
to be treated as "registration-required" obligations under U.S. law.
The Company shall notify the Trustee of any determinations by the Company
under this Section.
Section 2.05 Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent for a series other than the
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of the persons entitled thereto all money held by the Paying Agent for
the payment of principal of or interest on the series, and will notify the
Trustee of any default by the Company in making any such payment.
While any such default continues, the Trustee may require a Paying Agent to
pay all money so held by it to the Trustee. The Company at any time may require
a Paying Agent to pay all money held by it to the Trustee. Upon payment over to
the Trustee, the Paying Agent shall have no further liability for the money. If
the Company or an Affiliate acts as Paying Agent for a series, it shall
segregate and hold as a separate trust fund all money held by it as Paying Agent
for the series.
Section 2.06 Securityholder 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
Securityholders. If the Trustee is not the Transfer Agent, the Company shall
furnish to the Trustee semiannually and at such other times as the Trustee may
request a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of Holders of Registered Securities and
Holders of Bearer Securities whose names are on the list referred to below.
The Transfer Agent shall keep a list of the names and addresses of Holders
of Bearer Securities who file a request to be included on such list (the "Bearer
Securities List"). A request will remain in effect for two years unless renewed
or amended.
Whenever the Company or the Trustee is required to mail a notice to all
Holders of Registered Securities of a series, it also shall mail the notice to
Holders of Bearer Securities of the series whose names are on the Bearer
Securities List.
Whenever the Company is required to publish a notice to all Holders of
Bearer Securities of a series, it also shall mail the notice to such of them
whose names are on the Bearer Securities List.
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Section 2.07 Transfer and Exchange.
Where Registered Securities of a series are presented to the Transfer Agent
with a request to register a transfer or to exchange them for an equal principal
amount of Registered Securities of other denominations of the series, the
Transfer Agent shall register the transfer or make the exchange if its
requirements for such transactions are met.
The Transfer Agent may require a Holder to pay a sum sufficient to cover
any taxes imposed on a transfer or exchange.
If a series provides for Registered and Bearer Securities and for their
exchange, Bearer Securities may be exchanged for Registered Securities and
Registered Securities may be exchanged for Bearer Securities as provided in the
Securities or the Bond Resolution if the requirements of the Transfer Agent for
such transactions are met and if Section 2.04 permits the exchange.
Section 2.08 Replacement Securities.
If the Holder of a Security or coupon claims that it has been lost,
destroyed or wrongfully taken, then, in the absence of notice to the Company or
the Trustee that the Security or coupon has been acquired by a bona fide
purchaser, the Company shall issue a replacement Security or coupon if the
Company and the Trustee receive:
(1) evidence satisfactory to them of the loss, destruction or taking;
(2) an indemnity bond satisfactory to them; and
(3) payment of a sum sufficient to cover their expenses and any taxes
for replacing the Security or coupon.
A replacement Security of the same series shall contain identical terms and
shall have coupons attached corresponding to those, if any, on the original
Security.
Every replacement Security or coupon is an additional obligation of the
Company.
Section 2.09 Outstanding Securities.
The Securities outstanding at any time are all the Securities authenticated
by the Registrar except for those cancelled by it, those delivered to it for
cancellation, and those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.08, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Security is held by a bona fide purchaser.
If Securities are considered paid under Section 4.01, they cease to be
outstanding and interest on them ceases to accrue.
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A Security does not cease to be outstanding because the Company or an
Affiliate holds the Security.
Section 2.10 Discounted Securities.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, the principal
amount of a Discounted Security shall be the amount of principal that would be
due as of the date of such determination if payment of the Security were
accelerated on that date.
Section 2.11 Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company or an Affiliate shall be disregarded, except that for the
purposes of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Securities which the Trustee knows are
so owned shall be so disregarded.
Section 2.12 Global Securities.
If the Bond Resolution so provides, the Company may issue some or all of
the Securities of a series in temporary or permanent global form. A global
Security may be in registered form, in bearer form with or without coupons or in
uncertificated form. A global Security shall represent that amount of Securities
of a series as specified in the global Security or as endorsed thereon from time
to time. At the Company's request, the Registrar shall endorse a global Security
to reflect the amount of any increase or decrease in the Securities represented
thereby.
The Company may issue a global Security only to a depository designated by
the Company. A depository may transfer a global Security only as a whole to its
nominee or to a successor depository.
The Bond Resolution may establish, among other things, the manner of paying
principal and interest on a global Security and whether and upon what terms a
beneficial owner of an interest in a global Security may exchange such interest
for definitive Securities.
The Company, an Affiliate, the Trustee and any Agent shall not be
responsible for any acts or omissions of a depository, for any depository
records of beneficial ownership interests or for any transactions between the
depository and beneficial owners.
Section 2.13 Temporary Securities.
Until definitive Securities of a series are ready for delivery, the Company
may use temporary Securities. Temporary Securities shall be substantially in the
form of definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Temporary Securities may be in global
form. Temporary Bearer Securities may have one or more coupons or no coupons.
Without unreasonable delay, the Company shall deliver definitive Securities in
exchange for temporary Securities.
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Section 2.14 Cancellation.
The Company at any time may deliver Securities to the Registrar for
cancellation. The Transfer Agent and the Paying Agent shall forward to the
Registrar any Securities and coupons surrendered to them for payment, exchange
or registration of transfer. The Registrar shall cancel all Securities or
coupons surrendered for payment, registration of transfer, exchange or
cancellation as follows: the Registrar will cancel all Registered Securities and
matured coupons. The Registrar also will cancel all Bearer Securities and
unmatured coupons unless the Company requests the Registrar to hold the same for
redelivery. Any Bearer Securities so held shall be considered delivered for
cancellation under Section 2.09. The Registrar shall destroy cancelled
Securities and coupons unless the Company otherwise directs.
Unless the Bond Resolution otherwise provides, the Company may not issue
new Securities to replace Securities that the Company has paid or that the
Company has delivered to the Registrar for cancellation.
Section 2.15 Defaulted Interest
If the Company defaults in a payment of interest on Registered Securities,
it need not pay the defaulted interest to Holders on the regular record date.
The Company may fix a special record date for determining Holders entitled to
receive defaulted interest or the Company may pay defaulted interest in any
other lawful manner.
ARTICLE 3
REDEMPTION
Section 3.01 Notices to Trustee.
Securities of a series that are redeemable before maturity shall be
redeemable in accordance with their terms and, unless the Bond Resolution
otherwise provides, in accordance with this Article.
In the case of a redemption by the Company, the Company shall notify the
Trustee of the redemption date and the principal amount of Securities to be
redeemed. The Company shall notify the Trustee at least 45 days before the
redemption date unless a shorter notice is satisfactory to the Trustee.
If the Company is required to redeem Securities, it may reduce the
principal amount of Securities required to be redeemed to the extent it is
permitted a credit by the terms of the Securities and it notifies the Trustee of
the amount of the credit and the basis for it. If the reduction is based on a
credit for acquired or redeemed Securities that the Company has not previously
delivered to the Registrar for cancellation, the Company shall deliver the
Securities at the same time as the notice.
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Section 3.02 Selection of Securities to Be Redeemed.
If less than all the Securities of a series, with the same issue date,
interest rate, stated maturity and other terms, are to be redeemed, the Trustee
shall select the Securities to be redeemed by a method the Trustee considers
fair and appropriate. The Trustee shall make the selection from Securities of
the series outstanding and not previously called for redemption. The Trustee may
select for redemption portions of the principal of Securities having
denominations larger than the minimum denomination for the series. Securities
and portions thereof selected for redemption shall be in amounts equal to the
minimum denomination for the series or an integral multiple thereof. Provisions
of this Indenture that apply to Securities called for redemption also apply to
portions of Securities called for redemption.
Section 3.03 Notice of Redemption.
The election of the Company to redeem any Securities shall be evidenced by
or pursuant to a Bond Resolution. In case of any redemption at the election of
the Company of (a) less than all of the Securities of any series or (b) all of
the Securities of any series, with the same issue date, interest rate, stated
maturity and other terms, the Company shall, at least 45 days prior to the
redemption date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such redemption date and of
the principal amount of Securities of such series to be redeemed.
At least 30 days but not more than 60 days before a redemption date, the
Company shall mail a notice of redemption by first-class mail to each Holder of
Registered Securities whose Securities are to be redeemed.
If Bearer Securities are to be redeemed, the Company shall publish a notice
of redemption in an Authorized Newspaper as provided in the Securities.
A notice shall identify the Securities of the series to be redeemed and
shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption, together with all coupons,
if any, maturing after the redemption date, must be surrendered to the
Paying Agent to collect the redemption price;
(5) that interest on Securities called for redemption ceases to accrue
on and after the redemption date; and
(6) whether the redemption by the Company is mandatory or optional.
A redemption notice given by publication need not identify Registered
Securities to be redeemed.
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At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at its expense.
Section 3.04 Effect of Notice of Redemption.
Once notice of redemption is given, Securities called for redemption become
due and payable on the redemption date at the redemption price stated in the
notice. The Transfer Agent need not exchange or register the transfer of any
Security selected for redemption. The Transfer Agent need not exchange or
register the transfer of any Security for a period of 15 days before a selection
of Securities to be redeemed.
Section 3.05 Payment of Redemption Price.
On or before the redemption date, the Company shall deposit with the Paying
Agent money sufficient to pay the redemption price of and accrued interest on
all Securities to be redeemed on that date.
When the Holder of a Security surrenders it for redemption in accordance
with the redemption notice, the Company shall pay to the Holder on the
redemption date the redemption price and accrued interest to such date, except
that:
(1) the Company will pay any such interest (except defaulted interest)
to Holders on the record date of Registered Securities if the redemption
date occurs on an interest payment date; and
(2) the Company will pay any such interest to Holders of coupons that
mature on or before the redemption date upon surrender of such coupons to
the Paying Agent.
Coupons maturing after the redemption date on a called Security are void
absent a payment Default on that date. Nevertheless, if a Holder surrenders for
redemption a Bearer Security missing any such coupons, the Company and the
Trustee may deduct the face amount of such coupons from the redemption price. If
thereafter the Holder surrenders to the Paying Agent the missing coupons, the
Company will return the amount so deducted. The Company also may waive surrender
of the missing coupons if it receives an indemnity bond satisfactory to the
Company and the Trustee.
Section 3.06 Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Company shall
deliver to the Holder a new Security of the same series containing identical
terms and provisions equal in principal amount to the unredeemed portion of the
Security surrendered.
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ARTICLE 4
COVENANTS
Section 4.01 Payment of Securities.
(1) The Company shall duly and punctually pay the principal of (and
premium, if any) and interest on a series in accordance with the terms of the
Securities for the series, any related coupons, and this Indenture on the dates
and in the manner provided in the Securities and in this Indenture.
(2) Unless the Bond Resolution provides otherwise, the Company shall pay
interest on overdue principal of a series of the Securities at the rate of
interest or Yield to Maturity (in the case of a Discounted Security) borne by
such series of Securities or at such other rate as may be specified in such
Security; and it shall pay interest on overdue installments of interest at the
same rate to the extent lawful.
Section 4.02 Corporate Existence.
Subject to Article 5, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence,
material rights (charter and statutory), licenses and franchises; provided,
however, that the Company shall not be required to preserve any such material
right, license or franchise if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company.
Section 4.03 SEC Reports.
The Company shall file with the Trustee within 30 days after it is required
to file them with the SEC copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the foregoing
as the SEC may by rules and regulations prescribe) which the Company is required
to file with the SEC pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934. The Company also shall comply with the other provisions of TIA
Section 314(a).
Section 4.04 Annual Review Certificate.
The Company shall file with the Trustee within 120 days after the end of
each fiscal year of the Company an Officers' Certificate stating:
(1) that the signing Officers have supervised a review of the
activities of the Company and its Subsidiaries during the preceding fiscal
year to determine whether the Company has observed and performed its
obligations under this Indenture; and
(2) that to the best knowledge of each Officer signing such
certificate the Company has observed and performed all of its covenants in
this Indenture and is not in default in the observance and performance of
any of the terms, provisions and conditions
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of this Indenture (or if the Company is in such default, specifying those
defaults and the nature thereof of which he has knowledge).
Such certificate need not comply with Section 10.05.
Section 4.05 Notice to Trustee of Certain Defaults.
The Company shall give the Trustee within 30 days written notice of (a) any
failure of the kind described in Section 6.01(3) which remains uncured for 30
days after the Company has knowledge thereof, or (b) an Event of Default
described in Section 6.01(4).
Section 4.06 Further Assurances to Trustee.
The Company will, upon request of the Trustee, execute and deliver such
further instruments and do such further acts as may reasonably be necessary or
proper to carry out more effectively the purposes of this Indenture.
ARTICLE 5
SUCCESSORS
Section 5.01 When Company May Merge, etc.
The Company shall not consolidate with or merge into, or transfer all or
substantially all of its assets to, any person unless:
(1) either (a) the Company is the Surviving Person or (b) the
Surviving Person (if other than the Company) is organized under the laws of
the United States or a State thereof or the District of Columbia;
(2) the Surviving Person assumes by supplemental indenture (a) all the
obligations of the Company under and (b) the performance and observance of
every covenant of this Indenture, the Securities and any other document
entered into in connection therewith; and
(3) immediately after giving effect to the transaction, no Default or
Event of Default exists under this Indenture.
The Company shall deliver to the Trustee prior to the consummation of the
proposed transaction an Officers' Certificate to the foregoing effect and an
Opinion of Counsel stating that the proposed transaction and such supplemental
indenture comply with this Indenture.
The successor shall be substituted for the Company, and thereafter all
obligations of the Company under this Indenture, the Securities and any other
document entered into in connection therewith shall terminate.
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To the extent that a Bond Resolution or supplemental indenture pertaining
to any Series provides for different provisions relating to the subject matter
of this Article 5, the provisions in such Resolution or supplemental indenture
shall govern for purposes of such Series.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
An "Event of Default" with respect to a series of the Securities occurs if:
(1) the Company defaults in the payment of interest on a Security of
such series when the same becomes due and payable and the Default continues
for a period of 30 days;
(2) the Company defaults in the payment of the principal of a Security
of such series when the same becomes due and payable at maturity, upon
redemption or otherwise, or in the making of any sinking fund payment, if
any, required by the terms of such series;
(3) the Company fails to comply with any of its other covenants,
conditions or agreements in the Securities of such series or this Indenture
and the Default continues for the period and after the notice specified
below;
(4) the Company, pursuant to or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an
involuntary case,
(C) consents to the appointment of a Custodian of it or for all
or substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors;
(5) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company in an involuntary case,
(B) appoints a Custodian of the Company for all or substantially
all of its property, or
(C) orders the liquidation of the Company, and the order or
decree remains unstayed and in effect for 90 days;
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(6) a default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company (including a Default with
respect to Securities of any series other than that series) or 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 (including this Indenture), whether such indebtedness now
exists or shall hereafter be created, which default shall involve an amount
in excess of $10,000,000, and shall constitute a failure to pay such
indebtedness when due and payable after the expiration of any applicable
grace period with respect thereto and shall have resulted in such
indebtedness becoming or being declared due and payable prior to the date
on which it would otherwise have become due and payable, without such
indebtedness having been discharged, or such acceleration having been
rescinded or annulled within a period of 30 days after there shall have
been given, by registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the outstanding Securities of that series a written
notice specifying such default and requiring the Company to cause such
indebtedness to be discharged or cause such acceleration to be rescinded or
annulled and stating that such notice is a "Notice of Default" hereunder;
(7) a final judgment or judgments in an amount of $10,000,000 or more,
individually or in the aggregate, for the payment of money having been
entered by a court or courts of competent jurisdiction against the Company
and such judgment or judgments are not satisfied, stayed, annulled or
rescinded within 60 days of being entered; or
(8) any other Event of Default provided with respect to Securities of
that series.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar Federal
or State law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator or similar official under any Bankruptcy Law.
A Default under clause (3) is not an Event of Default with respect to a
series of the Securities until the Trustee or the Holders of at least 25% in
principal amount of the outstanding Securities of such series notify the Company
of the Default and the Company does not cure the Default within 60 days after
receipt of the notice. The notice must specify the Default, demand that it be
remedied and state that the notice is a "Notice of Default."
Section 6.02 Acceleration.
If an Event of Default (other than an Event of Default resulting from
subclause (4) or (5) under Section 6.01), with respect to a series of the
Securities occurs and is continuing, the Trustee by notice to the Company, or
the Holders of at least 25% in principal amount of the outstanding Securities of
such series by notice to the Company and the Trustee, may declare the principal
and accrued interest on all the Securities of such series to be due and payable
immediately. Upon such declaration, such principal amount (or, if the Securities
of a series are Discounted Securities, such portion of the principal amount as
may be specified in the terms of that series) shall become due and payable
immediately. If an Event of Default with respect to the Company specified in
subclause (4) or (5) under Section 6.01 occurs, all amounts due and pay-
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able on the Securities of such Series will ipso facto become and be immediately
due and payable without any declaration, notice or other act on the part of the
Trustee and the Company or any Holder. The Holders of a majority in principal
amount of the outstanding Securities of such series by notice to the Trustee may
rescind or annul such acceleration and its consequences if all existing Events
of Default with respect to such series have been cured or waived pursuant to
Section 6.04 and if the rescission would not conflict with any judgment or
decree.
Section 6.03 Other Remedies.
(1) If an Event of Default with respect to a series of the Securities
occurs and is continuing, the Trustee may pursue any available remedy by
proceeding at law or in equity to collect the payment of principal or interest
on the Securities of such series or to enforce the performance of any provision
of the Securities of such series or this Indenture, and may take any necessary
action required of it as Trustee to settle, compromise, adjust or otherwise
conclude any proceedings to which it is a party.
(2) The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder 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. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
Section 6.04 Waiver of Past Defaults.
Subject to Section 9.02, the Holders of a majority in principal amount of
the outstanding Securities of a series by notice to the Trustee may waive an
existing Default with respect to such series and its consequences. When a
Default is waived with respect to a series of the Securities, it is cured and
stops continuing with respect to such series.
Section 6.05 Control by Majority.
The Holders of a majority in principal amount of the outstanding Securities
of a series may direct the time, method and place of conducting any proceeding
with respect to such series for any remedy available to the Trustee or
exercising any trust or power conferred on it. The Trustee, however, may refuse
to follow any direction that conflicts with law or this Indenture, that is
unduly prejudicial to the rights of another Holder of a Security of such series,
that would involve the Trustee in personal liability, or if the Trustee does not
have sufficient indemnification against any loss or expense.
Section 6.06 Limitations on Suits.
(1) A Holder of a Security of a series may not pursue any remedy with
respect to this Indenture or the Securities of such series unless:
(A) the Holder gives to the Trustee written notice of a
continuing Event of Default with respect to such series;
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(B) the Holders of at least 25% in principal amount of the
outstanding Securities of such series make a written request to the
Trustee to pursue the remedy with respect to such series;
(C) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense;
and
(D) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of indemnity.
(2) A Securityholder may not use this Indenture to prejudice the
rights of another Securityholder of the same series or to obtain a
preference or priority over the other Securityholder of the same series.
Section 6.07 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of a
Holder of a Security to receive payment of principal and interest on such
Security, on or after the respective due dates expressed in such Security, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall be absolute and unconditional and not be impaired or affected
without the consent of such Holder.
Section 6.08 Collection Suit by Trustee.
If an Event of Default with respect to a series of the Securities in
payment of interest or principal or premium, if any, specified in Section
6.01(1) or (2) occurs and is continuing, the Company will, upon demand of the
Trustee, pay to it, for the benefit of the Holders of such Securities, the whole
amount then due and payable on such Securities, and the Trustee may obtain
judgment in its own name and as trustee of an express trust and enforce the same
against the Company for the whole amount of principal and interest remaining
unpaid with respect to such series of the Securities.
Section 6.09 Trustee May File Proofs of Claims.
The Trustee may, and is appointed the true and lawful attorney-in-fact for
the Holders of the Securities to, (a) 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 and the Securityholders allowed in any judicial proceedings relative to
the Company, its creditors or its property, (b) collect and receive any monies
or property payable or deliverable on account of such claims as trustee of a
constructive trust or as holder of an equitable Lien against the Company or
regarding its assets, and (c) distribute the same after deduction of its charges
and expenses to the extent that such charges and expenses are not paid out of
the estate in any such proceeding.
Section 6.10 Priorities.
(1) If the Trustee collects any money pursuant to this Article with respect
to a series of the Securities, it shall pay out the money in the following
order:
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First: to the Trustee for amounts due under Section 7.07;
Second: to Holders of the Securities of such series for amounts due
and unpaid on the Securities of such series for principal (and premium, if
any) and interest, ratably, without preference or priority of any kind
according to the amounts due and payable on the Securities of such series
for principal and interest, respectively; and
Third: the balance, if any, to the Company.
(2) The Trustee may fix a record date and payment date for any payment to
Holders of Securities of the relevant series.
Section 6.11 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that 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 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 does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.07, or a suit by a
Holder or Holders of more than 10% in principal amount of the outstanding
Securities of a series.
Section 6.12 Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders of
Securities shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
the Holders shall continue as though no such proceeding had been instituted.
Section 6.13 Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to the Trustee or to
the Holders of Securities is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Section 6.14 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or
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constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders of Securities may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders of Securities as the case may
be.
Section 6.15 Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or 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, but will suffer and permit the execution of every such power as though no
such law had been enacted.
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
(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;
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(B) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust 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.
(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 Section 10.05 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.
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(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 shall be sufficient if signed by
an Officer of the Company. 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 Trust 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.
Section 7.03 Individual Rights of Trustee.
The Trustee, in its individual or any other capacity, may become the owner
or pledgee of Securities 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.
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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 Securities, it shall not be
accountable for the Company's use of the proceeds from the Securities 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 Securities or any other document in connection with the sale of
the Securities 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 Trust Officer of the Trustee, the Trustee shall mail to Holders of
Securities 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, if any, on any Security 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
Securities.
Section 7.06 Reports by Trustee to Holders of Securities.
Within 60 days after each March 1 and for so long as Securities remain
outstanding, the Trustee shall mail to the Holders of Securities 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
Securities shall be mailed to the Company and filed with the SEC and each stock
exchange on which the Securities are listed in accordance with TIA ss. 313(d).
The Company shall promptly notify the Trustee when the Securities are listed on
any securities exchange or of any delisting thereof.
Section 7.07 Compensation and Indemnity.
The Company 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 limited by any
law on compensation of a trustee of an express trust. The Company 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 Trus-
-24-
tee'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 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 (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 of any of their obligations hereunder. The
Company shall defend the claim and the Trustee shall cooperate in the defense.
The Trustee may have separate counsel and the Company shall pay the reasonable
fees and expenses of such counsel. The Company need not pay for any settlement
made without its consent, which consent shall not be unreasonably withheld.
The obligations of the Company 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 Securities on all money or property held
or collected by the Trustee, except that held in trust to pay principal,
premium, if any, and interest, if any, on particular Securities. 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(4) or (5) 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.
-25-
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 Securities 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 Securities 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 Securities
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee, after written request by any Holder of Securities who has
been a Holder of a Security for at least six months, fails to comply with
Section 7.10 hereof, such Holder of a Security 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.
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 Securities. 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
-26-
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 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 xx.xx. 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.
ARTICLE 8
DISCHARGE OF INDENTURE
Section 8.01 Defeasance.
Securities of a series may be defeased in accordance with their terms and,
unless the Bond Resolution otherwise provides, in accordance with this Article.
The Company at any time may terminate as to a series all of its obligations
under this Indenture, the Securities of the series and any related coupons
("legal defeasance option"). The Company at any time may terminate as to a
series its obligations under Sections 4.02, 4.03, 4.04, 4.05, 4.06 and 5.01
provided that none of its obligations in the Sections set forth in the
immediately succeeding sentence may be terminated ("covenant defeasance
option"). However, in the case of the legal defeasance option, the Company's
obligations in Sections 2.03, 2.04, 2.05,
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2.06, 2.07, 2.08, 7.07 and 7.08, shall survive until the Securities of the
series are no longer outstanding; thereafter the Company's obligations in
Section 7.07 shall survive.
The Company may exercise its legal defeasance option notwithstanding its
prior exercise of its covenant defeasance option. If the Company exercises its
legal defeasance option, a series may not be accelerated because of an Event of
Default. If the Company exercises its covenant defeasance option, a series may
not be accelerated by reference to Sections 4.02, 4.03, 4.04, 4.05, 4.06 or
5.01.
The Trustee upon request shall acknowledge in writing the discharge of
those obligations that the Company terminates.
Section 8.02 Conditions to Defeasance.
The Company may exercise as to a series its legal defeasance option or its
covenant defeasance option if:
(1) the Company irrevocably deposits in trust with the Trustee or
another trustee money or U.S. Government Obligations;
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due on the
deposited U.S. Government Obligations without reinvestment plus any
deposited money without investment will provide cash at such times and in
such amounts as will be sufficient to pay principal and interest when due
on all the Securities of the series to maturity or redemption, as the case
may be;
(3) immediately after the deposit no Default exists;
(4) the deposit does not constitute a default under any other
agreement binding on the Company;
(5) the deposit does not cause the Trustee to have a conflicting
interest under TIA Section 310(a) or Section 310(b) as to another series;
(6) the Company delivers to the Trustee an Opinion of Counsel to the
effect that Holders of the series will not recognize income, gain or loss
for Federal income tax purposes as a result of the defeasance and, in the
case of legal defeasance, such opinion must be based on a U.S. Internal
Revenue Service ruling or a change in U.S. Federal income tax law;
(7) the Company delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute, or is
qualified as, a regulated investment company under the Investment Company
Act of 1940; and
(8) 91 days pass after the deposit is made and during the 91-day
period no Default specified in Section 6.01(4) or (5) occurs that is
continuing at the end of the period.
-28-
Before or after a deposit the Company may make arrangements satisfactory to
the Trustee for the redemption of Securities at a future date in accordance with
Article 3.
"U.S. Government Obligations" means direct obligations of the United States
which have the full faith and credit of the United States pledged for payment
and which are not callable at the issuer's option, or certificates representing
an ownership interest in such obligations.
Section 8.03 Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 8.02. It shall apply the deposited money
and the money from U.S. Government Obligations through the Paying Agent and in
accordance with this Indenture to the payment of principal and interest on
Securities of the defeased series.
Section 8.04 Repayment to Company.
The Trustee and the Paying Agent shall promptly turn over to the Company
upon request any excess money or Securities held by them at any time.
The Trustee and the Paying Agent shall pay to the Company upon request any
money held by them for the payment of principal or interest that remains
unclaimed for two years. After payment to the Company, Securityholders entitled
to the money must look to the Company for payment as unsecured general creditors
unless an abandoned property law designates another person.
ARTICLE 9
AMENDMENTS
Section 9.01 Without Consent of Holders.
The Company and the Trustee may amend this Indenture, the Securities or any
coupons without the consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article 5;
(3) to provide that specific provisions of this Indenture shall not
apply to a series not previously issued;
(4) to create a series and establish its terms;
(5) to provide for a separate Trustee for one or more series; or
(6) to make any change that does not materially adversely affect the
rights of any Securityholder.
-29-
Section 9.02 With Consent of Holders.
Unless the Bond Resolution otherwise provides, the Company and the Trustee
may amend this Indenture, the Securities and any coupons with the written
consent of the Holders of a majority in principal amount of the Securities of
all series affected by the amendment voting as one class. However, without the
consent of each Securityholder affected, an amendment under this Section 9.02
may not:
(1) reduce the amount of Securities whose Holders must consent to an
amendment;
(2) reduce the interest on or change the time for payment of interest
on any Security;
(3) change the fixed maturity of any Security;
(4) reduce the principal of any non-Discounted Security or reduce the
amount of principal of any Discounted Security that would be due upon an
acceleration thereof;
(5) change the currency in which principal or interest on a Security
is payable; or
(6) make any change in Section 6.04 or this Section 9.02, except to
increase the amount of Securities whose Holders must consent to an
amendment or waiver or to provide that other provisions of this Indenture
cannot be amended or waived without the consent of each Securityholder
affected thereby; or
(7) impair the right of any Securityholder to xxx for payment under
this Indenture, the Securities or any coupon.
An amendment of a provision included solely for the benefit of one or more
series does not affect Securityholders of any other series.
Securityholders need not consent to the exact text of a proposed amendment
or waiver; it is sufficient if they consent to the substance thereof.
Section 9.03 Compliance with Trust Indenture Act.
Every amendment pursuant to Section 9.01 or 9.02 shall be set forth in a
supplemental indenture that complies with the TIA as then in effect.
If a provision of the TIA requires or permits a provision of this Indenture
and the TIA provision is amended, then the Indenture provision shall be
automatically amended to like effect.
-30-
Section 9.04 Effect of Consents.
An amendment or waiver becomes effective in accordance with its terms and
thereafter binds every Securityholder entitled to consent to it.
A consent to an amendment or waiver by a Holder of a Security is a
continuing consent by the Holder and every subsequent Holder of a Security that
evidences the same debt as the consenting Holder's Security. Any Holder or
subsequent Holder may revoke the consent as to his Security if the Trustee
receives notice of the revocation before the amendment or waiver becomes
effective.
The Company may fix a record date for the determination of Holders of
Registered Securities entitled to give a consent. The record date shall not be
less than 10 nor more than 60 days prior to the first written solicitation of
Securityholders.
Section 9.05 Notation on or Exchange of Securities.
The Company or the Trustee may place an appropriate notation about an
amendment or waiver on any Security thereafter authenticated. The Company may
issue in exchange for affected Securities new Securities that reflect the
amendment or waiver.
ARTICLE 10
MISCELLANEOUS
Section 10.01 Trust Indenture Act.
The provisions of TIA Sections 310 through 317 that impose duties on any
person (including the provisions automatically deemed included herein unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not physically contained herein.
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the TIA,
the required provision shall control.
Section 10.02 Notices.
Any notice by one party to another is duly given if in writing and
delivered in person, sent by facsimile transmission confirmed by mail or mailed
by first-class mail to the other's address shown below:
Company: Vail Resorts, Inc.
Xxxx Xxxxxx Xxx 0
Xxxx, Xxxxxxxx 00000
Attention: General Counsel
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Trustee: [ ]
A party, by notice to the other parties, may designate additional or
different addresses for subsequent notices.
Any notice mailed to a Securityholder shall be mailed to his address shown
on the register kept by the Transfer Agent or on the Bearer Securities List
referred to in Section 2.06. Failure to mail a notice to a Securityholder or any
defect in a notice mailed to a Securityholder shall not affect the sufficiency
of the notice mailed to other Securityholders or the sufficiency of any
published notice.
If a notice 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 to Securityholders, it shall mail a copy to
the Trustee and each Agent at the same time.
If in the Company's opinion it is impractical to mail a notice required to
be mailed or to publish a notice required to be published, the Company may give
such substitute notice as the Trustee approves. Failure to publish a notice as
required or any defect in it shall not affect the sufficiency of any mailed
notice.
All notices shall be in the English language, except that any published
notice may be in an official language of the country of publication.
A "notice" includes any communication required by this Indenture.
Section 10.03 Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and any other person shall
have the protection of TIA Section 312(c).
Section 10.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall if so requested furnish to the
Trustee:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
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Section 10.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or opinion has
read such covenant or condition;
(2) 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;
(3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with.
Section 10.06 Rules by Company and Agents.
The Company may make reasonable rules for action by or a meeting of
Securityholders. An Agent may make reasonable rules and set reasonable
requirements for its functions.
Section 10.07 Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions are not required to be open. If a payment date is a Legal Holiday
at a place of payment, unless the Bond Resolution otherwise provides, payment
may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
Section 10.08 No Recourse Against Others.
All liability described in the Securities of any director, officer,
employee or stockholder, as such, of the Company is waived and released.
Section 10.09 Duplicate Originals.
The parties may sign any number of copies of this Indenture. One signed
copy is enough to prove this Indenture.
Section 10.10 Governing Law.
The laws of the State of New York shall govern this Indenture, the
Securities and any coupons, unless federal law governs without regard to
principles of conflicts of laws.
-33-
SIGNATURES
Dated: [ ], 20[ ] VAIL RESORTS, INC.
By:______________________________
Name:
Title:
Dated: [ ], 20[ ] [ ], as Trustee
By:
Name:
-34-
EXHIBIT A
Form of Registered Security
No. $
VAIL RESORTS, INC.
[Title of Security]
Vail Resorts, Inc. promises to pay to __________ or registered assigns the
principal sum of __________ Dollars on __________ , 20[__].
Interest Payment Dates:
Record Dates:
Dated:
[ ]
Transfer Agent and Paying Agent VAIL RESORTS, INC.
(SEAL)
Authenticated: Name:
Title:
Registrar, by
Authorized Signatory Name:
Title:
A-1
VAIL RESORTS, INC.
[Title of Security]
1. Interest(1)
Vail Resorts, Inc. ("Company"), a Delaware corporation, promises to pay
interest on the principal amount of this Security at the rate per annum shown
above. The Company will pay interest semiannually on and of each year commencing
[ ], 200[ ]. Interest on the Securities will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from [ ], 200[ ].
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
2. Method of Payment(2)
The Company will pay interest on the Securities to the persons who are
registered holders of Securities at the close of business on the record date for
the next interest payment date, except as otherwise provided in the Indenture.
Holders must surrender Securities to a Paying Agent to collect principal
payments. The Company will pay principal and interest in money of the United
States that at the time of payment is legal tender for payment of public and
private debts. The Company may pay principal and interest by check payable in
such money. It may mail an interest check to a holder's registered address.
3. Bond Agents.
Initially, [ ] will act as Paying Agent, Transfer Agent and Registrar. The
Company may change any Paying Agent, Transfer Agent or Registrar without notice.
The Company or any Affiliate may act in any such capacity. Subject to certain
conditions, the Company may change the Trustee.
4. Indenture.
The Company issued the securities of this series ("Securities") under an
Indenture dated as of [ ], 200[ ] ("Indenture") between the Company and [ ]
("Trustee"). The terms of the Securities include those stated in the Indenture
and in the Bond Resolution creating the Securities and those made part of the
Indenture by the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb). Securityholders are referred to the Indenture, the Bond
Resolution and the Act for a statement of such terms.
5. Optional Redemption(3)
On or after [ ], 200[], the Company may redeem all the Securities at any
time or some of them from time to time at the following redemption prices
(expressed in percentages of principal amount), plus accrued interest to the
redemption date.
A-2
If redeemed during the 12-month period beginning
Year Percentage
---- ----------
20[ ]...........................................
20[ ].............................................
20[ ].............................................
20[ ].............................................
20[ ].............................................
and thereafter at 100%.
6. Mandatory Redemption(4)
The Company will redeem $[ ] principal amount of Securities on [ ] and on
each [ ] thereafter through [ ], 20[ ] at a redemption price of 100% of
principal amount, plus accrued interest to the redemption date.(5) The Company
may reduce the principal amount of Securities to be redeemed pursuant to this
paragraph by subtracting 100% of the principal amount (excluding premium) of any
Securities (i) that the Company has acquired or that the Company has redeemed
other than pursuant to this paragraph and (ii) that the Company has delivered to
the Registrar for cancellation. The Company may subtract the same Security only
once.
7. Additional Optional Redemption(6)
In addition to redemptions pursuant to the above paragraph(s), the Company
may redeem not more than $[ ] principal amount of Securities on [ ] and on each
[ ] thereafter through [ ], 20[ ] at a redemption price of 100% of principal
amount, plus accrued interest to the redemption date.
8. Notice of Redemption(7)
Notice of redemption will be mailed at least 30 days but not more than 60
days before the redemption date to each holder of Securities to be redeemed at
his registered address.
9. Denominations, Transfer, Exchange.
The Securities are in registered form without coupons in denominations of
$1,000(8) and whole multiples of $1,000. The transfer of Securities may be
registered and Securities may be exchanged as provided in the Indenture. The
Transfer Agent may require a holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or the Indenture. The Transfer Agent need not exchange or register the
transfer of any Security or portion of a Security selected for redemption. Also,
it need not exchange or register the transfer of any Securities for a period of
15 days before a selection of Securities to be redeemed.
10. Persons Deemed Owners.
The registered holder of a Security may be treated as its owner for all
purposes.
A-3
11. Amendments and Waivers.
Subject to certain exceptions, the Indenture or the Securities may be
amended with the consent of the holders of a majority in principal amount of the
Securities of all series affected by the amendment.(9) Subject to certain
exceptions, a Default on a series may be waived with the consent of the holders
of a majority in principal amount of the series.
Without the consent of any Securityholder, the Indenture or the Securities
may be amended, among other things, to cure any ambiguity, omission, defect or
inconsistency; to provide for assumption of Company obligations to
Securityholders; or to make any change that does not materially adversely affect
the rights of any Securityholder.
12. Restrictive Covenants(10)
The Securities are unsecured general obligations of the Company limited to
$ [ ] principal amount.
13. Successors.
When a successor assumes all the obligations of the Company under the
Securities and the Indenture, the Company will be released from those
obligations.
14. Defeasance Prior to Redemption or Maturity(11)
Subject to certain conditions, the Company at any time may terminate some
or all of its obligations under the Securities and the Indenture if the Company
deposits with the Trustee money or U.S. Government Obligations for the payment
of principal and interest on the Securities to redemption or maturity. U.S.
Government Obligations are securities backed by the full faith and credit of the
United States of America or certificates representing an ownership interest in
such Obligations.
15. Defaults and Remedies.
An Event of Default with respect to this series of Securities is: default
for 30 days in payment of interest on the Securities of this series; default in
payment of principal on them [If the Security is subject to redemption insert ",
upon redemption or otherwise"; and, if the Security is entitled to a sinking
fund also add "or in the making of any sinking fund payment"]; failure by the
Company for 60 days after notice to it to comply with any of its other
covenants, conditions or agreements in the Indenture or the Securities of this
series; a default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company (including a default with respect
to Securities of any series other than this series) or 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
(including the Indenture), whether such indebtedness now exists or shall
hereafter be created, which default shall involve an amount in excess of
$10,000,000 and shall constitute a failure to pay such indebtedness when due and
payable after the expiration of any applicable grace period with respect thereto
and shall have resulted in such indebtedness becoming or being declared due and
payable prior to the date on which it would otherwise have become due and
payable, without such indebtedness having
A-4
been discharged, or such acceleration having been rescinded or annulled within a
period of 30 days after notice as provided in the Indenture; and certain events
of bankruptcy or insolvency. [Add other events of default if applicable.] If an
Event of Default with respect to this series of the Securities occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the outstanding Securities of this series may declare all the Securities of this
series to be due and payable immediately. [If the Security is a Discounted
Security, add "The amount due and payable shall be equal to" [insert formula for
determining the amount.] Upon payment (i) of the amount of principal so declared
due and payable and (ii) of interest on any overdue principal and overdue
interest (in each case to the extent that the payment of such interest shall be
legally enforceable), all of the Company's obligations in respect of the payment
of the principal and interest, if any, on the Discounted Securities of this
series shall be terminated.] Holders of Securities of this series may not
enforce the Indenture or the Securities of this series except as provided in the
Indenture. The Trustee may require indemnity satisfactory to it before it
enforces the Indenture or the Securities of this series. Subject to certain
limitations, Holders of a majority in principal amount of the outstanding
Securities of this series may direct the Trustee in its exercise of any trust or
power with respect to this series of the Securities. The Trustee may withhold
from Holders of Securities of this series notice of any continuing default
(except a default in payment of principal or interest) if it determines in good
faith that withholding notice is in their interests. The Company is required to
file periodic reports with the Trustee as to the absence of default.
16. 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 or its Affiliates,
and may otherwise deal with those persons, as if it were not Trustee.
17. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company shall
not have any liability for any obligations of the Company under the Securities
or the Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Securityholder by accepting a Security
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
18. Authentication.
This Security shall not be valid until authenticated by a manual signature
of the Registrar.
19. Abbreviations.
Customary abbreviations may be used in the name of a Securityholder or an
assignee, such as: TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with right of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gifts to Minors
Act).
A-5
The Company will furnish to any Securityholder upon written request and
without charge a copy of the Indenture and the Bond Resolution, which contains
the text of this Security in larger type. Requests may be made to: Secretary,
Vail Resorts, Inc., XX Xxx 0, Xxxx, Xxxxxxxx 00000.
A-6
EXHIBIT B
Form of Bearer Security
No. $
Vail Resorts, Inc.
[Title of Security]
Vail Resorts, Inc. promises to pay to __________ or registered assigns the
principal sum of __________ Dollars on __________ ,
Interest Payment Dates:
Record Dates: Dated: , 20[ ].
[ ]
Transfer Agent and Paying Agent VAIL RESORTS, INC.
(SEAL)
Authenticated: Name:
Title:
Registrar, by
Authorized Signatory Name:
Title:
B-1
VAIL RESORTS, INC.
[Title of Security]
1. Interest(1)
Vail Resorts, Inc. ("Company"), a Delaware corporation, promises to pay to
bearer interest on the principal amount of this Security at the rate per annum
shown above. The Company will pay interest semiannually on and of each year
commencing [ ], 200[ ]. Interest on the Securities will accrue from the most
recent date to which interest has been paid or, if no interest has been paid,
from [ ], 20[ ]. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
2. Method of Payment(2)
Holders must surrender Securities and any coupons to a Paying Agent to
collect principal and interest payments. The Company will pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts. The Company may pay principal
and interest by check payable in such money.
3. Bond Agents.
Initially, [ ] will act as Transfer Agent, Paying Agent and Registrar. The
Company may change any Paying Agent, Transfer Agent or Registrar without notice.
The Company or any Affiliate may act in any such capacity. Subject to certain
conditions, the Company may change the Trustee.
4. Indenture.
The Company issued the securities of this series ("Securities") under an
Indenture dated as of [ ], 20[ ] ("Indenture") between the Company and [ ]
("Trustee"). The terms of the Securities include those stated in the Indenture
and the Bond Resolution and those made part of the Indenture by the Trust
Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb). Securityholders are
referred to the Indenture, the Bond Resolution and the Act for a statement of
such terms.
5. Optional Redemption(3)
On or after [ ] 20[ ], the Company may redeem all the Securities at any
time or some of them from time to time at the following redemption prices
(expressed in percentages of principal amount), plus accrued interest to the
redemption date.
B-2
If redeemed during the 12-month period beginning
Year Percentage
---- ----------
20[ ]...........................................
20[ ]...........................................
20[ ]...........................................
20[ ]...........................................
20[ ]...........................................
and thereafter at 100%.
6. Mandatory Redemption(4)
The Company will redeem $[ ] principal amount of Securities on [ ]and on
each [ ] thereafter through [ ], 20____ at a redemption price of 100% of
principal amount, plus accrued interest to the redemption date. (5)The Company
may reduce the principal amount of Securities to be redeemed pursuant to this
paragraph by subtracting 100% of the principal amount (excluding premium) of any
Securities (i) that the Company has acquired or that the Company has redeemed
other than pursuant to this paragraph and (ii) that the Company has delivered to
the Registrar for cancellation. The Company may subtract the same Security only
once.
7. Additional Optional Redemption(6)
In addition to redemptions pursuant to the above paragraph(s), the Company
may redeem not more than $[ ] principal amount of Securities on [ ] and on each
[ ] thereafter through [ ], 20[ ] at a redemption price of 100% of principal
amount, plus accrued interest to the redemption date.
8. Notice of Redemption(7)
Notice of redemption will be published once in an Authorized Newspaper in
the City of New York and if the Securities are listed on any stock exchange
located outside the United States and such stock exchange so requires, in any
other required city outside the United States at least 30 days but not more than
60 days before the redemption date. Notice of redemption also will be mailed to
holders who have filed their names and addresses with the Transfer Agent within
the two preceding years. A holder of Securities may miss important notices if he
fails to maintain his name and address with the Transfer Agent.
9. Denominations, Transfer, Exchange.
The Securities are in bearer form with coupons in denominations of
$1,000(8) and whole multiples of $1,000. The Securities may be transferred by
delivery and exchanged as provided in the Indenture. Upon an exchange, the
Transfer Agent may require a holder, among other things, to furnish appropriate
documents and to pay any taxes and fees required by law or the Indenture. The
Transfer Agent need not exchange any Security or portion of a Security selected
for redemption. Also, it need not exchange any Securities for a period of 15
days before a selection of Securities to be redeemed.
B-3
10. Persons Deemed Owners.
The holder of a Security or coupon may be treated as its owner for all
purposes.
11. Amendments and Waivers.
Subject to certain exceptions, the Indenture or the Securities may be
amended with the consent of the holders of a majority in principal amount of the
Securities of all series affected by the amendment.(9) Subject to certain
exceptions, a Default on a series may be waived with the consent of the holders
of a majority in principal amount of the series.
Without the consent of any Securityholder, the Indenture or the Securities
may be amended, among other things, to cure any ambiguity, omission, defect or
inconsistency; to provide for assumption of Company obligations to
Securityholders; or to make any change that does not materially adversely affect
the rights of any Securityholder.
12. Restrictive Covenants(10)
The Securities are unsecured general obligations of the Company limited to
$[ ] principal amount.
13. Successors.
When a successor assumes all the obligations of the Company under the
Securities, any coupons and the Indenture, the Company will be released from
those obligations.
14. Defeasance Prior to Redemption or Maturity(11)
Subject to certain conditions, the Company at any time may terminate some
or all of its obligations under the Securities, any coupons and the Indenture if
the Company deposits with the Trustee money or U.S. Government Obligations for
the payment of principal and interest on the Securities to redemption or
maturity. U.S. Government Obligations are securities backed by the full faith
and credit of the United States of America or certificates representing an
ownership interest in such Obligations.
15. Defaults and Remedies.
An Event of Default with respect to this series of Securities is: default
for 30 days in payment of interest on the Securities of this series; default in
payment of principal on them [If the Security is subject to redemption insert ",
upon redemption or otherwise"; and, if the Security is entitled to a sinking
fund also add "or in the making of any sinking fund payment"]; failure by the
Company for 60 days after notice to it to comply with any of its other
covenants, conditions or agreements in the Indenture or the Securities of this
series; a default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company (including a default with respect
to Securities of any series other than this series) or 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
(including the Indenture), whether such indebtedness now exists or shall
hereafter be created, which default shall involve an amount in excess of
$10,000,000 and shall constitute a failure to pay such indebtedness when
B-4
due and payable after the expiration of any applicable grace period with respect
thereto and shall have resulted in such indebtedness becoming or being declared
due and payable prior to the date on which it would otherwise have become due
and payable, without such indebtedness having been discharged, or such
acceleration having been rescinded or annulled within a period of 30 days after
notice as provided in the Indenture; and certain events of bankruptcy or
insolvency. [Add other events of default if applicable.] If an Event of Default
with respect to this series of the Securities occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the outstanding
Securities of this series may declare all the Securities of this series to be
due and payable immediately. [If the Security is a Discounted Security, add "The
amount due and payable shall be equal to" [insert formula for determining the
amount]. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal and overdue interest (in each case
to the extent that the payment of such interest shall be legally enforceable),
all of the Company's obligations in respect of the payment of the principal and
interest, if any, on the Discounted Securities of this series shall be
terminated.] Holders of Securities of this series may not enforce the Indenture
or the Securities of this series except as provided in the Indenture. The
Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Securities of this series. Subject to certain limitations,
Holders of a majority in principal amount of the outstanding Securities of this
series may direct the Trustee in its exercise of any trust or power with respect
to this series of the Securities. The Trustee may withhold from Holders of
Securities of this series notice of any continuing default (except a default in
payment of principal or interest) if it determines in good faith that
withholding notice is in their interests. The Company is required to file
periodic reports with the Trustee as to the absence of default.
16. 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 or its Affiliates,
and may otherwise deal with those persons, as if it were not Trustee.
17. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company shall
not have any liability for any obligations of the Company under the Securities
or the Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Securityholder by accepting a Security
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
18. Authentication.
This Security shall not be valid until authenticated by a manual signature
of the Registrar.
19. Abbreviations.
Customary abbreviations may be used in the name of a Securityholder or an
assignee, such as: TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT
B-5
TEN (=joint tenants with right of survivorship and not as tenants in common),
CUST (=custodian), and U/G/M/A (=Uniform Gifts to Minors Act).
The Company will furnish to any Securityholder upon written request and
without charge a copy of the Indenture and the Bond Resolution, which contains
the text of this Security in larger type. Requests may be made to: Secretary,
Vail Resorts, Inc., XX Xxx 0, Xxxx, Xxxxxxxx 00000.
B-6
[FACE OF COUPON]
____________
[$]___________
Due___________
VAIL RESORTS, INC.
[Title of Security]
Unless the Security attached to this coupon has been called for redemption,
Vail Resorts, Inc. ("Company") will pay to bearer, upon surrender, the amount
shown hereon when due. This coupon may be surrendered for payment to any Paying
Agent listed on the back of this coupon unless the Company has replaced such
Agent. Payment may be made by check. This coupon represents six months'
interest.
VAIL RESORTS, INC.
By
[REVERSE OF COUPON]
PAYING AGENT
NOTES TO EXHIBITS A AND B
1. If the Security is not to bear interest at a fixed rate per annum,
insert a description of the manner in which the rate of interest is to be
determined. If the Security is not to bear interest prior to maturity, so state.
2. If the method or currency of payment is different, insert a statement
thereof.
3. If applicable.
4. If applicable.
5. If the Security is a Discounted Security, insert amount to be redeemed
or method of calculating such amount.
6. If applicable. Also insert, if applicable, provisions for repayment of
Securities at the option of the Securityholder.
7. If applicable.
8. If applicable. Insert additional or different denominations.
9. If different terms apply, insert a brief summary thereof.
10. If applicable. If additional or different covenants apply, insert a
brief summary thereof.
11. If applicable. If different defeasance terms apply, insert a brief
summary thereof.
Note: U.S. tax law may require certain legends on Discounted Securities and
Bearer Securities.
EXHIBIT C
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
__________________________________________________________________
__________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
_________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ______________________ agent to transfer this Security
on the books of the Company. The agent may substitute another to act for him.
Date: _______________ Your Signature: ___________________________________
(Sign exactly as your name appears
on the other side of this Security)
C-1
EXHIBIT D
CONVERSION NOTICE
To convert this Security, check the box:
/ /
To convert only part of this Security, state the amount (must be in integral
multiples of $1,000):
$_____________________
If you want the Securities delivered upon conversion made out in another
person's name, fill in the form below:
(Insert other person's Social Security or Tax I.D. Number)
___________________________________________
(Print or type other person's name, address and zip code)
Date: ____________ Signature(s): __________________________________________
(Sign exactly as your name(s) appear(s) on
the other side of this Security)
Signature(s) guaranteed by: ___________________________________________________
(All signatures must be guaranteed by a member of a national securities
exchange or of the National Association of Securities Dealers, Inc. or by a
commercial bank or trust company located in the United States)
D-1
