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EXHIBIT 4.1
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BOOTH CREEK SKI HOLDINGS, INC.
THE GUARANTORS named herein
and
MARINE MIDLAND BANK, as Trustee
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INDENTURE
Dated as of March 18, 1997
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Up to $200,000,000
12 1/2% Senior Notes due 2007
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
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310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.08; 7.10;
11.02
(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(b)(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.05
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.03
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.03
313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.02
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.02; 4.04
11.02
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.04; 11.05
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.04; 11.05
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.05
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01; 7.02
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.05; 11.02
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.05; 7.01;
7.02
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
316 (a) (last sentence) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.06
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.05
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.02
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.07
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.04
317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.08
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.12
318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.01
N.A. means Not Applicable
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NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
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TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.02. Other Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 1.03. Incorporation by Reference of
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 1.04. Rules of Construction . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE 2
THE NOTES
Section 2.01. Amount of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 2.02. Form and Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 2.03. Execution and Authentication . . . . . . . . . . . . . . . . . . . . . . 28
Section 2.04. Registrar and Paying Agent . . . . . . . . . . . . . . . . . . . . . . . 29
Section 2.05. Paying Agent To Hold Money in Trust . . . . . . . . . . . . . . . . . . 29
Section 2.06. Noteholder Lists. . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 2.07. Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 2.08. Replacement Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 2.09. Outstanding Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 2.10. Treasury Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 2.11. Temporary Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 2.12. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 2.13. Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 2.14. CUSIP Number . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 2.15. Deposit of Moneys . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 2.16. Book-Entry Provisions for Global Notes . . . . . . . . . . . . . . . . . 34
Section 2.17. Special Transfer Provisions . . . . . . . . . . . . . . . . . . . . . . 37
Section 2.18. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE 3
REDEMPTION
Section 3.01. Election to Redeem; Notices to Trustee . . . . . . . . . . . . . . . . . 39
Section 3.02. Selection by Trustee of Notes
To Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 3.03. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 3.04. Effect of Notice of Redemption . . . . . . . . . . . . . . . . . . . . . 41
Section 3.05. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . 42
Section 3.06. Notes Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 4.02. SEC Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
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Section 4.03. Waiver of Stay, Extension or
Usury Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 4.04. Compliance Certificate . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 4.05. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 4.06. Limitation on Additional
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 4.07. Limitation on Preferred Stock of
Restricted Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . 47
Section 4.08. Limitation on Capital Stock of
Restricted Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . 47
Section 4.09. Limitation on Restricted Payments . . . . . . . . . . . . . . . . . . . 48
Section 4.10. Limitation on Certain Asset Sales . . . . . . . . . . . . . . . . . . . 50
Section 4.11. Limitation on Transactions with
Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 4.12. Limitations on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 4.13. Limitations on Investments . . . . . . . . . . . . . . . . . . . . . . . 54
Section 4.14. Limitation on Creation of Subsidiaries . . . . . . . . . . . . . . . . . 55
Section 4.15. Limitation on Sale and Lease-Back
Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 4.16. Limitation on Dividend and
Other Payment Restrictions
Affecting Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 4.17. Payments for Consent . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 4.18. Legal Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 4.19. Change of Control . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 4.20. Maintenance of Properties; Insurance;
Books and Records; Compliance with
Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 4.21. Further Assurance to the Trustee . . . . . . . . . . . . . . . . . . . . 60
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.01. Limitation on Consolidation,
Merger and Sale of Assets . . . . . . . . . . . . . . . . . . . . . . 61
Section 5.02. Successor Person Substituted . . . . . . . . . . . . . . . . . . . . . . 62
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 6.02. Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 6.03. Other Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 6.04. Waiver of Past Defaults and
Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 6.05. Control by Majority . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 6.06. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 6.07. No Personal Liability of Directors,
Officers, Employees and Stockholders . . . . . . . . . . . . . . . . . 66
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Section 6.08. Rights of Holders To Receive
Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 6.09. Collection Suit by Trustee . . . . . . . . . . . . . . . . . . . . . . . 67
Section 6.10. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . 67
Section 6.11. Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 6.12. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 6.13. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . 69
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 7.02. Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 7.03. Individual Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . 71
Section 7.04. Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 7.05. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 7.06. Reports by Trustee to Holders . . . . . . . . . . . . . . . . . . . . . 72
Section 7.07. Compensation and Indemnity . . . . . . . . . . . . . . . . . . . . . . . 72
Section 7.08. Replacement of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 7.09. Successor Trustee by Consolidation,
Merger, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 7.10. Eligibility; Disqualification . . . . . . . . . . . . . . . . . . . . . 75
Section 7.11. Preferential Collection of Claims
Against Company . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 7.12. Paying Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
ARTICLE 8
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.01. Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . 76
Section 8.02. With Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 8.03. Compliance with Trust Indenture Act . . . . . . . . . . . . . . . . . . 78
Section 8.04. Revocation and Effect of Consents . . . . . . . . . . . . . . . . . . . 78
Section 8.05. Notation on or Exchange of Notes . . . . . . . . . . . . . . . . . . . . 79
Section 8.06. Trustee To Sign Amendments, etc. . . . . . . . . . . . . . . . . . . . . 79
ARTICLE 9
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01. Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 9.02. Legal Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 9.03. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 9.04. Conditions to Defeasance or
Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 9.05. Deposited Money and U.S.
Government Obligations To Be
Held in Trust; Other
Miscellaneous Provisions . . . . . . . . . . . . . . . . . . . . . . . 84
Section 9.06. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
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Section 9.07. Moneys Held by Paying Agent . . . . . . . . . . . . . . . . . . . . . . 85
Section 9.08. Moneys Held by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 85
ARTICLE 10
GUARANTEE OF NOTES
Section 10.01. Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Section 10.02. Execution and Delivery of
Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Section 10.03. Limitation of Guarantee . . . . . . . . . . . . . . . . . . . . . . . . 88
Section 10.04. Additional Guarantors . . . . . . . . . . . . . . . . . . . . . . . . . 88
Section 10.05. Release of Guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . 88
ARTICLE 11
MISCELLANEOUS
Section 11.01. Trust Indenture Act Controls . . . . . . . . . . . . . . . . . . . . . 89
Section 11.02. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Section 11.03. Communications by Holders
with Other Holders . . . . . . . . . . . . . . . . . . . . . . . . . . 90
Section 11.04. Certificate and Opinion as
to Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . . 90
Section 11.05. Statements Required in
Certificate and Opinion . . . . . . . . . . . . . . . . . . . . . . . 91
Section 11.06. Rules by Trustee and Agents . . . . . . . . . . . . . . . . . . . . . . 91
Section 11.07. Business Days; Legal Holidays . . . . . . . . . . . . . . . . . . . . . 91
Section 11.08. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Section 11.09. No Adverse Interpretation of
Other Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Section 11.10. No Recourse Against Others . . . . . . . . . . . . . . . . . . . . . . . 92
Section 11.11. Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Section 11.12. Multiple Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . 93
Section 11.13. Table of Contents, Headings, etc. . . . . . . . . . . . . . . . . . . . 93
Section 11.14. Separability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
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EXHIBITS
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Exhibit A. Form of Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
Exhibit B. Form of Legend and Assignment for
144A Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-1
Exhibit C. Form of Legend and Assignment
for Regulation S Note . . . . . . . . . . . . . . . . . . . . . . . . . . C-1
Exhibit D. Form of Legend for Global Note . . . . . . . . . . . . . . . . . . . . . . . D-1
Exhibit E. Form of Certificate to Be Delivered
in Connection with Transfers to
Non-QIB Accredited Investors . . . . . . . . . . . . . . . . . . . . . . . E-1
Exhibit F. Form of Certificate to Be Delivered
in Connection with Transfers
Pursuant to Regulation S . . . . . . . . . . . . . . . . . . . . . . . . . F-1
Exhibit G. Form of Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . X-0
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0
XXXXXXXXX, dated as of March 18, 1997, among BOOTH CREEK SKI
HOLDINGS, INC., a Delaware corporation (the "Company"), the Guarantors (as
hereinafter defined) and MARINE MIDLAND BANK, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of the Notes.
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
"Acquired Indebtedness" means Indebtedness of a Person
(including an Unrestricted Subsidiary) existing at the time such Person becomes
a Restricted Subsidiary or assumed in connection with the acquisition of assets
from such Person.
"Adjusted EBITDA" means EBITDA minus cash taxes actually paid.
"Additional Interest" means additional interest on the Notes
which the Company and the Guarantors, jointly and severally, agree to pay to
the Holders pursuant to Section 4 of the Registration Rights Agreement.
"Adjusted Net Assets" of a Guarantor at any date means the
lesser of the amount by which (x) the fair value of the property of such
Guarantor exceeds the total amount of liabilities, including, without
limitation, contingent liabilities (after giving effect to all other fixed and
contingent liabilities), but excluding liabilities under the Guarantee of such
Guarantor at such date and (y) the present fair salable value of the assets of
such Guarantor at such date exceeds the amount that will be required to pay the
probable liability of such Guarantor on its debts (after giving effect to all
other fixed and contingent liabilities and after giving effect to any
collection from any Subsidiary of such Guarantor in respect of the obligations
of such Subsidiary under the Guarantee) excluding Indebtedness in respect of
the Guarantee, as they become absolute and matured.
"Affiliate" of any specified Person means any other Person
which directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, such specified Person. For the
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlling," "controlled by," and "under common control
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with"), as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise; provided that neither CIBC nor any of its Affiliates
shall be treated as an Affiliate of the Company or of any Subsidiary of the
Company.
"Agent" means any Registrar, Paying Agent, or agent for
service of notices and demands.
"Asset Sale" means the sale, transfer or other disposition
(other than to the Company or any of its Restricted Subsidiaries) in any single
transaction or series of related transactions involving assets with a fair
market value in excess of $500,000 of (a) any Capital Stock of or other equity
interest in any Restricted Subsidiary of the Company, (b) all or substantially
all of the assets of the Company or of any Restricted Subsidiary thereof, (c)
real property or (d) all or substantially all of the assets of any ski resort
property, or part thereof, owned by the Company or any Restricted Subsidiary
thereof, or a division, line of business or comparable business segment of the
Company or any Restricted Subsidiary thereof; provided that Asset Sales shall
not include sales, leases, conveyances, transfers or other dispositions to the
Company or to a Restricted Subsidiary or to any other Person if after giving
effect to such sale, lease, conveyance, transfer or other disposition such
other Person becomes a Restricted Subsidiary.
"Asset Sale Proceeds" means, with respect to any Asset Sale,
(i) cash received by the Company or any Restricted Subsidiary from such Asset
Sale (including cash received as consideration for the assumption of
liabilities incurred in connection with or in anticipation of such Asset Sale),
after (a) provision for all income or other taxes measured by or resulting from
such Asset Sale, (b) payment of all brokerage commissions, underwriting and
other fees and expenses related to such Asset Sale, (c) provision for minority
interest holders in any Restricted Subsidiary as a result of such Asset Sale
and (d) deduction of appropriate amounts to be provided by the Company or a
Restricted Subsidiary as a reserve, in accordance with GAAP, against any
liabilities associated with the assets sold or disposed of in such Asset Sale
and retained by the Company or a Restricted Subsidiary after such Asset Sale,
including, without limitation, pension and other post employment benefit
liabilities and liabilities related to environmental matters or against any
indemnification obligations associated with the assets sold or disposed of in
such Asset Sale, and
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(ii) promissory notes and other noncash consideration received by the Company
or any Restricted Subsidiary from such Asset Sale or other disposition upon the
liquidation or conversion of such notes or noncash consideration into cash.
"Attributable Indebtedness" under this Indenture in respect of
a Sale and Lease-Back Transaction means, as at the time of determination, the
present value (discounted at a rate of 10%, compounded annually) of the total
obligations of the lessee for rental payments during the remaining term of the
lease included in such Sale and Lease-Back Transaction (including any period
for which such lease has been extended).
"Available Asset Sale Proceeds" means, with respect to any
Asset Sale, the aggregate Asset Sale Proceeds from such Asset Sale that have
not been applied or committed in accordance with clauses (iii)(a) or (iii)(b),
and which has not yet been the basis for an Excess Proceeds Offer in accordance
with clause (iii)(c), of the first paragraph of Section 4.10.
"Board of Directors" with respect to any Person means, (i) at
any time such Person is a limited liability company, the board of directors of
its managing member or, if such managing member is a limited liability company,
the board of directors of such managing member's managing member, and (ii)
otherwise the board of directors of such Person or any committee authorized to
act therefor.
"Board Resolution" means a copy of a resolution certified
pursuant to an Officers' Certificate to have been duly adopted by the Board of
Directors of the Company or a Guarantor, as appropriate, and to be in full
force and effect, and delivered to the Trustee.
"Capital Stock" means, with respect to any Person, any and all
shares or other equivalents (however designated) of capital stock, partnership
interests or any other participation, right or other interest in the nature of
an equity interest in such Person or any option, warrant or other security
convertible into any of the foregoing.
"Capitalized Lease Obligations" means Indebtedness represented
by obligations under a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP, and the amount of such Indebtedness
shall be the capitalized amount of such obligations determined in accordance
with GAAP.
11
-4-
"Cash Equivalents" means (i) direct obligations of the United
States of America or any agency thereof, or obligations guaranteed or insured
by the United States of America, provided that in each case such obligations
mature within one year from the date of acquisition thereof, (ii) certificates
of deposit maturing within one year from the date of creation thereof issued by
any U.S. national or state banking institution having capital, surplus and
undivided profits aggregating at least $250,000,000 and at the time of
investment rated at least A-1 by S&P and P-1 by Xxxxx'x, (iii) commercial paper
with a maturity of 180 days or less issued by a corporation (except an
Affiliate of the Company) organized under the laws of any state of the United
States or the District of Columbia and at the time of investment rated at least
A-1 by S&P or at least P-1 by Xxxxx'x and (iv) repurchase agreements and
reverse repurchase agreements relating to marketable direct obligations issued
or unconditionally guaranteed by the United States of America or issued by an
agency thereof and backed by the full faith and credit of the United States of
America, in each case maturing within one year from the date of acquisition;
provided that the terms of such agreements comply with the guidelines set forth
in the Federal Financial Agreements of Depository Institutions with Securities
Dealers and Others, as adopted by the Comptroller of the Currency and (v)
tax-exempt auction rate securities and municipal preferred stock, in each case,
subject to reset no more than 35 days after the date of acquisition and having
a rating of at least AA by S&P or AA by Xxxxx'x at the time of investment.
A "Change of Control" of the Company means the occurrence of
one or more of the following events: (i) any sale, lease, exchange or other
transfer (in one transaction or a series of related transactions) of all or
substantially all of the assets of the Company to any Person or group of
related Persons for purposes of Section 13(d) of the Exchange Act (a "Group"),
together with any Affiliates thereof; (ii) the approval by the holders of
Capital Stock of the Company of any plan or proposal for the liquidation or
dissolution of the Company; (iii) prior to a Qualified IPO, Xxxx Xxxxxxx Mutual
Life Insurance Company and/or its Affiliates (other than its portfolio
companies, including without limitation, the Parent and its Subsidiaries) shall
cease to beneficially own (within the meaning of Rule 13d-3 under the Exchange
Act), directly or indirectly, Voting Stock representing, or Class B Common
Stock and/or warrants exercisable for shares of Class B Common Stock
representing upon conversion, at least 50.1% of the total voting power of all
Voting Stock of the Company or Parent on a fully diluted basis; (iv) any Person
or Group (other than the Permitted Holders) shall become the beneficial owner,
directly or indirectly, of Voting Stock
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-5-
representing, or Common Stock or Warrants exercisable for Common Stock
representing upon conversion, more than 35% of the total voting power of all
Voting Stock of the Company or Parent on a fully diluted basis; (v) prior to a
Qualified IPO, Booth Creek Partners Ltd. II, L.L.L.P. or any Affiliate thereof
that is a Permitted Holder shall cease to have the right to appoint a majority
of the Board of Directors of Parent; (vi) the replacement of a majority of the
Board of Directors of Parent over a two-year period from the directors who
constituted the Board of Directors of Parent at the beginning of such period,
and such replacement shall not have been approved or recommended by a vote of
at least two-thirds of the Board of Directors of Parent then still in office
who either were members of such Board of Directors at the beginning of such
period or whose election as a member of such Board of Directors was previously
so approved; (vii) there shall be consummated any consolidation or merger of
the Company in which the Company is not the continuing or surviving corporation
or pursuant to which the Common Stock of the Company would be converted into
cash, securities or other property, other than a merger or consolidation of the
Company in which the holders of the Common Stock of the Company outstanding
immediately prior to the consolidation or merger hold, directly or indirectly,
at least a majority of the Common Stock of the surviving corporation
immediately after such consolidation or merger; (viii) Xxxxxx X. Xxxxxx, Xx.
ceases, other than by death or disability, to have an executive management
position with the Company; or (ix) any creditor of Parent shall foreclose on
any Capital Stock of the Company.
"Class B Common Stock" means the Class B Common Stock, $.001
par value, of Parent.
"Commodity Hedge Agreement" means any option, hedge or other
similar agreement or arrangement designed to protect against fluctuations in
commodity or materials prices.
"Common Stock" of any Person means all Capital Stock of such
Person that is generally entitled to (i) vote in the election of directors of
such Person or (ii) if such Person is not a corporation, vote or otherwise
participate in the selection of the governing body, partners, managers or
others that will control the management and policies of such Person.
"Company" means the party named as such in the first paragraph
of this Indenture until a successor replaces such party pursuant to Article 5
of this Indenture and thereafter means the successor.
13
-6-
"Company Request" means any written request signed in the name
of the Company by the Chairman of the Board of Directors, the Chief Executive
Officer, the President, any Vice President, the Chief Financial Officer or the
Treasurer of the Company and attested to by the Secretary or any Assistant
Secretary of the Company.
"Consolidated Interest Expense" means, with respect to any
Person, for any period, the aggregate amount of interest which, in conformity
with GAAP, would be set forth opposite the caption "interest expense" or any
like caption on an income statement for such Person and its Subsidiaries on a
consolidated basis (including, but not limited to, Redeemable Dividends,
whether paid or accrued, on Preferred Stock of Subsidiaries of such Person
(other than Preferred Stock outstanding on the date of the Indenture), imputed
interest included in Capitalized Lease Obligations, all commissions, discounts
and other fees and charges owed with respect to letters of credit and bankers'
acceptance financing, the net costs associated with hedging obligations,
amortization of other financing fees and expenses, the interest portion of any
deferred payment obligation, amortization of discount or premium, if any, and
all other non-cash interest expense (other than interest amortized to cost of
sales)) plus, without duplication, all net capitalized interest for such period
and all interest incurred or paid under any guarantee of Indebtedness
(including a guarantee of principal, interest or any combination thereof) of
any Person, plus the amount of all dividends or distributions paid on
Disqualified Capital Stock (other than dividends paid or payable in shares of
Capital Stock of the Company).
"Consolidated Net Income" means, with respect to any Person,
for any period, the aggregate of the Net Income of such Person and its
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP; provided, however, that (a) the Net Income of any Person (the "other
Person") in which the Person in question or any of its Subsidiaries has less
than a 100% interest (which interest does not cause the net income of such
other Person to be consolidated into the net income of the Person in question
in accordance with GAAP) shall be included only to the extent of the amount of
dividends or distributions paid to the Person in question or its Subsidiaries,
(b) the Net Income of any Subsidiary of the Person in question that is subject
to any restriction or limitation on the payment of dividends or the making of
other distributions (other than pursuant to the Notes or this Indenture) shall
be excluded to the extent of such restriction or limitation, (c)(i) the Net
Income of any Person acquired in a pooling of interests transaction for
14
-7-
any period prior to the date of such acquisition and (ii) any gain or loss
resulting from an asset sale by the Person in question or any of its
Subsidiaries or abandonments or reserves relating thereto and the related tax
effects according to GAAP other than asset sales in the ordinary course of
business shall be excluded, and (d) extraordinary gains and losses shall be
excluded.
"Consolidated Net Worth" means, with respect to any Person at
any date, the consolidated stockholder's equity of such Person less the amount
of such stockholder's equity attributable to Disqualified Capital Stock of such
Person and its Subsidiaries, as determined in accordance with GAAP.
"Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is
located at 000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Currency Agreement" means, for any Person, any foreign
exchange contract, currency swap agreement or other similar agreement or
arrangement designed to protect such Person against fluctuations in currency
values.
"Default" means any event that is, or with the passing of time
or giving of notice or both would be, an Event of Default.
"Depository" means, with respect to the Notes issued in the
form of one or more Global Notes, The Depository Trust Company or another
Person designated as Depository by the Company, which Person must be a clearing
agency registered under the Exchange Act.
"Disqualified Capital Stock" means any Capital Stock of the
Company or a Restricted Subsidiary thereof which, by its terms (or by the terms
of any security into which it is convertible or for which it is exchangeable at
the option of the holder), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the option of the holder thereof, in whole or in part, on or
prior to 180 days after the maturity date of the Notes, for cash or securities
constituting Indebtedness. Without limitation of the foregoing, Disqualified
Capital Stock shall be deemed to include (i) any Preferred Stock of a
Restricted Subsidiary of the Company and (ii) any Preferred Stock of the
Company, with respect to either of which, under the
15
-8-
terms of such Preferred Stock, by agreement or otherwise, such Restricted
Subsidiary or the Company is obligated to pay current dividends or
distributions in cash during the period prior to the maturity date of the
Notes; provided, however, that Preferred Stock of the Company or any Restricted
Subsidiary thereof that is issued with the benefit of provisions requiring a
change of control offer to be made for such Preferred Stock in the event of a
change of control of the Company or such Restricted Subsidiary, which
provisions have substantially the same effect as the provisions described in
Section 4.19, and Capital Stock of the Company or any Restricted Subsidiary
thereof that is issued to employees (other than Xxxxxx X. Xxxxxx, Xx. and
Xxxxxxx X. Xxxxx) in connection with compensation arrangements that is issued
with the benefit of provisions requiring the Company or such Restricted
Subsidiary to redeem such Capital Stock shall not be deemed to be Disqualified
Capital Stock solely by virtue of such provisions.
"EBITDA" means, for any Person, for any period, an amount
equal to (a) the sum of (i) Consolidated Net Income for such period, plus (ii)
the provision for taxes for such period based on income or profits to the
extent such income or profits were included in computing Consolidated Net
Income and any provision for taxes utilized in computing net loss under clause
(i) hereof, plus (iii) Consolidated Interest Expense for such period (but only
including Redeemable Dividends in the calculation of such Consolidated Interest
Expense to the extent that such Redeemable Dividends have not been excluded in
the calculation of Consolidated Net Income), plus (iv) depreciation for such
period on a consolidated basis, plus (v) amortization of intangibles for such
period on a consolidated basis, plus (vi) amortization of any capitalized real
estate development costs, plus (vii) any other non-cash items reducing
Consolidated Net Income for such period, minus (b) all non-cash items
increasing Consolidated Net Income for such period, all for such person and its
Subsidiaries determined in accordance with GAAP, except that with respect to
the Company each of the foregoing items shall be determined on a consolidated
basis with respect to the Company and its Restricted Subsidiaries only; and
provided, however, that for purposes of calculating EBITDA during any fiscal
quarter, cash income from a particular Investment of such person shall be
included only (x) if cash income has been received by such Person with respect
to such Investment during each of the previous four fiscal quarters, or (y) if
the cash income derived from such Investment is attributable to Temporary Cash
Investments.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
16
-9-
"Exchange Notes" has the meaning provided in the Registration
Rights Agreement or, with respect to Notes issued under this Indenture
subsequent to the Issue Date pursuant to Section 2.01, a registration rights
agreement substantially identical to the Registration Rights Agreement.
"GAAP" means generally accepted accounting principles
consistently applied as in effect in the United States from time to time.
"Xxxxxxx Management Agreement" means the Management Agreement
dated November 27, 1996 between the Company and Booth Creek, Inc., as the same
may be amended, modified or supplemented form time to time and any replacement
agreement.
"Guarantee" means, as the context may require, individually, a
guarantee, or collectively, any and all guarantees, of the Obligations of the
Company with respect to the Notes by each Guarantor pursuant to the terms of
Article 10 hereof, substantially in the form set forth in Exhibit G.
"Guarantor" means all direct and indirect Restricted
Subsidiaries of the Company listed on the signature pages hereto and each
Restricted Subsidiary which guarantees payment of the Notes pursuant to Section
4.14, and "Guarantors" means such entities, collectively.
"Holder" or "Noteholder" means the Person in whose name a Note
is registered on the Registrar's books.
"incur" means, with respect to any Indebtedness or other
obligation of any Person, to create, issue, incur (by conversion, exchange or
otherwise), assume, guarantee or otherwise become liable in respect of such
Indebtedness or other obligation or the recording, as required pursuant to GAAP
or otherwise, of any such Indebtedness or other obligation on the balance sheet
of such Person (and "incurrence," "incurred," "incurrable," and "incurring"
shall have meanings correlative to the foregoing); provided that a change in
GAAP that results in an obligation of such Person that exists at such time
becoming Indebtedness shall not be deemed an incurrence of such Indebtedness.
"Indebtedness" means (without duplication), with respect to
any Person, any indebtedness at any time outstanding, secured or unsecured,
contingent or otherwise, which is for borrowed money (whether or not the
recourse of the lender is to
17
-10-
the whole of the assets of such Person or only to a portion thereof), or
evidenced by bonds, notes, debentures or similar instruments or representing
the balance deferred and unpaid of the purchase price of any property
(excluding, without limitation, any balances that constitute accounts payable
or trade payables, and other accrued liabilities arising in the ordinary course
of business) if and to the extent any of the foregoing indebtedness would
appear as a liability upon a balance sheet of such Person prepared in
accordance with GAAP, and shall also include, to the extent not otherwise
included (i) any Capitalized Lease Obligations, (ii) obligations secured by a
Lien to which the property or assets owned or held by such Person is subject,
whether or not the obligation or obligations secured thereby shall have been
assumed (provided, however, that if such obligation or obligations shall not
have been assumed, the amount of such Indebtedness shall be deemed to be the
lesser of the principal amount of the obligation or the fair market value of
the pledged property or assets), (iii) guarantees of items of other Persons
which would be included within this definition for such other Persons (whether
or not such items would appear upon the balance sheet of the guarantor), (iv)
all obligations for the reimbursement of any obligor on any letter of credit,
banker's acceptance or similar credit transaction (provided that in the case of
any such letters of credit, the items for which such letters of credit provide
credit support are those of other Persons which would be included within this
definition for such other Persons), (v) in the case of the Company,
Disqualified Capital Stock of the Company or any Restricted Subsidiary thereof,
and (vi) obligations of any such Person under any Interest Rate Agreement
applicable to any of the foregoing (if and to the extent such Interest Rate
Agreement obligations would appear as a liability upon a balance sheet of such
Person prepared in accordance with GAAP). The amount of Indebtedness of any
Person at any date shall be the outstanding balance at such date of all
unconditional obligations as described above and, with respect to contingent
obligations, the maximum reasonably anticipated liability upon the occurrence
of the contingency giving rise to the obligation, provided (i) that the amount
outstanding at any time of any Indebtedness issued with original issue discount
is the principal amount of such Indebtedness less the remaining unamortized
portion of the original issue discount of such Indebtedness at such time as
determined in conformity with GAAP and (ii) that Indebtedness shall not include
any liability for federal, state, local or other taxes. Notwithstanding any
other provision of the foregoing definition, any trade payable arising from the
purchase of goods or materials or for services obtained in the ordinary course
of business shall not be deemed to be "Indebtedness" of the Company or any
18
-11-
Restricted Subsidiary for purposes of this definition. Furthermore, guarantees
of (or obligations with respect to letters of credit supporting) Indebtedness
otherwise included in the determination of such amount shall not also be
included.
"Indenture" means this Indenture as amended, restated or
supplemented from time to time.
"Initial Purchaser" means CIBC Wood Gundy Securities Corp.
"Institutional Accredited Investor" means an institution that
is an "accredited investor" as that term is defined in Rule 501 (a)(1), (2),
(3) or (7) promulgated under the Securities Act.
"Interest Payment Date" means the stated maturity of an
installment of interest on the Notes.
"Interest Rate Agreement" means, for any Person, any interest
rate swap agreement, interest rate cap agreement, interest rate collar
agreement or other similar agreement designed to protect the party indicated
therein against fluctuations in interest rates.
"Investments" means, directly or indirectly, any advance,
account receivable (other than an account receivable arising in the ordinary
course of business or acquired as part of the assets acquired by the Company in
connection with an acquisition of assets which is otherwise permitted by the
terms of this Indenture), loan or capital contribution to (by means of
transfers of property to others, payments for property or services for the
account or use of others or otherwise), the purchase of any stock, bonds,
notes, debentures, partnership or joint venture interests or other securities
of, the acquisition, by purchase or otherwise, of all or substantially all of
the business or assets or stock or other evidence of beneficial ownership of,
any Person or the making of any investment in any Person. Investments shall
exclude (i) extensions of trade credit on commercially reasonable terms in
accordance with normal trade practices and (ii) the repurchase of securities of
any Person by such Person.
"Issue Date" means March 18, 1997.
"Lien" means, with respect to any property or assets of any
Person, any mortgage or deed of trust, pledge, hypothecation, assignment,
deposit arrangement, security interest, lien, charge,
19
-12-
easement, encumbrance, preference, priority, or other security agreement or
preferential arrangement of any kind or nature whatsoever on or with respect to
such property or assets (including, without limitation, any Capitalized Lease
Obligation, conditional sales, or other title retention agreement having
substantially the same economic effect as any of the foregoing).
"Maturity Date" means March 15, 2007.
"Xxxxx'x" means Xxxxx'x Investors Service, Inc. and its
successors.
"Net Income" means, with respect to any Person for any period,
the net income (loss) of such Person determined in accordance with GAAP.
"Net Proceeds" means (a) in the case of any sale of Capital
Stock by the Company, the aggregate net proceeds received by the Company, after
payment of expenses, commissions and the like incurred in connection therewith,
whether such proceeds are in cash or in property (valued at the fair market
value thereof, as determined in good faith by the Board of Directors, at the
time of receipt) and (b) in the case of any exchange, exercise, conversion or
surrender of outstanding securities of any kind for or into shares of Capital
Stock of the Company which is not Disqualified Capital Stock, the net book
value of such outstanding securities on the date of such exchange, exercise,
conversion or surrender (plus any additional amount required to be paid by the
holder to the Company upon such exchange, exercise, conversion or surrender,
less any and all payments made to the holders, e.g., on account of fractional
shares and less all expenses incurred by the Company in connection therewith).
"Non-U.S. Person" means a Person who is not a U.S. person, as
defined in Regulation S.
"Notes" means the securities issued by the Company, including,
without limitation, the Option Notes, the Subsequent Series Notes, the Private
Exchange Notes, if any, and the Exchange Notes, treated as a single class of
securities, as amended or supplemented from time to time in accordance with the
terms hereof, that are issued pursuant to this Indenture.
"Obligations" means, with respect to any Indebtedness, any
principal, premium, interest, penalties, fees, indemnifications,
reimbursements, damages and other expenses payable under the documentation
governing such Indebtedness.
20
-13-
"Offering" means the offering of the Notes as described in the
Offering Memorandum.
"Offering Memorandum" means the Offering Memorandum dated
March 13, 1997 pursuant to which the Notes issued on the Issue Date were
offered.
"Officer", with respect to any Person (other than the
Trustee), means the Chairman of the Board of Directors, Chief Executive
Officer, the President, any Vice President and the Chief Financial Officer, the
Treasurer or the Secretary of such Person, or any other officer of such Person
designated by the Board of Directors of such Person and set forth in an
Officers' Certificate delivered to the Trustee.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chairman of the Board of Directors, the Chief
Executive Officer, the President or any Vice President and the Chief Financial
Officer, Controller or the Treasurer of such Person that shall comply with
applicable provisions of this Indenture.
"Opinion of Counsel" means a written opinion reasonably
satisfactory in form and substance to the Trustee from legal counsel which
counsel is reasonably acceptable to the Trustee, stating the matters required
by Section 11.05 and delivered to the Trustee.
"Parent" means Booth Creek Ski Group, Inc., a Delaware
corporation, or its successors.
"Permitted Holders" means Booth Creek Partners Limited II,
L.L.L.P. as long as Xxxxxx X. Xxxxxxx, Xx. is the managing general partner,
Xxxxxxx X. Xxxxx, only with respect to shares he purchases upon exercise of his
option to purchase up to 15% of the shares of Common Stock of Parent held by
Xxxxxx X. Xxxxxx, Xx. and Affiliates of Xxxxxx X. Xxxxxx, Xx., the Parent as
long as it is controlled by another Permitted Holder other than Xxxxxxx X.
Xxxxx, Xxxx Xxxxxxx Mutual Life Insurance Company and/or its Affiliates other
than its portfolio companies, including without limitation, the Parent and its
Subsidiaries), CIBC WG Argosy Merchant Fund 2, L.L.C. and/or its Affiliates,
Xxxxxx X. Xxxxxxx, Xx., Xxxx Xxxxxxx, any trust solely for the benefit of
Xxxxxx X. Xxxxxxx, Xx. and Xxxx Xxxxxxx or their respective immediate family
members, or any partnership or other entity all the ownership interests in
which are beneficially owned by any of the foregoing; provided that with
respect to any such trust, partnership or other entity either Xxxxxx X.
Xxxxxxx,
00
-00-
Xx. or Xxxx Xxxxxxx shall at all times have the exclusive power to direct,
directly or indirectly, the voting of the shares of Voting Stock of the Company
held by such trust, partnership or other entity.
"Permitted Indebtedness" means:
(i) Indebtedness of the Company or any Restricted
Subsidiary arising under or in connection with the Senior Credit
Facility in a principal amount at any time not to exceed $20,000,000,
less each permanent reduction of commitments to extend credit
thereunder as provided for under this Indenture;
(ii) Indebtedness under the Notes offered pursuant to the
Offering Memorandum (including the Option Notes) and the Guarantees;
(iii) Indebtedness not covered by any other clause of this
definition which is outstanding on the date of this Indenture;
(iv) Indebtedness of the Company to any Restricted
Subsidiary and Indebtedness of any Restricted Subsidiary to the
Company or another Restricted Subsidiary;
(v) Purchase Money Indebtedness and Capitalized Lease
Obligations incurred to acquire property in the ordinary course of
business, which Purchase Money Indebtedness and Capitalized Lease
Obligations do not in the aggregate exceed $2,500,000 at any time
outstanding;
(vi) Obligations of the Company or any Restricted
Subsidiary under (A) Interest Rate Agreements designed to protect
against fluctuations in interest rates in respect of Indebtedness of
the Company and its Restricted Subsidiaries permitted to be incurred
under this Indenture, which obligations do not exceed the aggregate
principal amount of such Indebtedness, and (B) Currency Agreements
designated to protect the Company and its Subsidiaries against
fluctuations in foreign currency exchange rates in respect of foreign
exchange exposures incurred by the Company and its Restricted
Subsidiaries;
(vii) Indebtedness incurred by the Company or any of its
Restricted Subsidiaries constituting reimbursement obligations with
respect to letters of credit issued in the ordinary course of
business, including, without limitation,
22
-15-
letters of credit in respect of workers' compensation claims or
self-insurance, or other Indebtedness with respect to reimbursement
type obligations regarding workers' compensation claims; provided,
however, that upon the drawing of such letters of credit or the
incurrence of such Indebtedness, such obligations are reimbursed
within 30 days following such drawing or incurrence;
(viii) Indebtedness arising from agreements of the Company
or a Restricted Subsidiary providing for indemnification, adjustment
of purchase price or similar obligations, in each case, incurred or
assumed in connection with the acquisition or disposition of any
business, assets or a Subsidiary;
(ix) obligations in respect of performance and surety
bonds and completion guarantees provided by the Company or any
Restricted Subsidiary in the ordinary course of business;
(x) any guarantee by the Company of Indebtedness or other
obligations of any of its Restricted Subsidiaries, and any guarantee
by any Restricted Subsidiary of Indebtedness of the Company or any
other Restricted Subsidiary, so long as the incurrence of such
Indebtedness is permitted under the terms of the Indenture;
(xi) additional Indebtedness of the Company and its
Restricted Subsidiaries not to exceed $2,500,000 in principal amount
outstanding at any time;
(xii) Refinancing Indebtedness; and
(xiii) Indebtedness assumed and subsequently repaid on the
Issue Date in connection with the acquisition of Grand Targhee
Incorporated.
"Permitted Investments" means, for any Person, Investments
made on or after the date of this Indenture consisting of:
(i) Investments by the Company or by a Restricted
Subsidiary thereof, in the Company or a Restricted Subsidiary;
(ii) Temporary Cash Investments;
23
-16-
(iii) Investments by the Company, or by a Restricted
Subsidiary thereof, in a Person, if as a result of such Investment (a)
such Person becomes a Restricted Subsidiary of the Company or, (b)
such Person is merged, consolidated or amalgamated with or into, or
transfers or conveys substantially all of its assets to, or is
liquidated into, the Company or a Restricted Subsidiary thereof;
(iv) reasonable and customary loans and advances made to
employees in connection with their relocation (including related
travel expenses) not to exceed $500,000 in the aggregate at any one
time outstanding.
(v) an Investment that is made by the Company or a
Restricted Subsidiary thereof in the form of any stock, bonds, notes,
debentures, partnership or joint venture interests or other securities
that are issued by a third party to the Company or a Restricted
Subsidiary solely as partial consideration for the consummation of an
Asset Sale that is otherwise permitted by Section 4.10;
(vi) any Investment existing on the Issue Date;
(vii) any Investment acquired by the Company or any of its
Restricted Subsidiaries (a) in exchange for any other Investment or
accounts receivable held by the Company or any such Restricted
Subsidiary in connection with or as a result of a bankruptcy, workout,
reorganization or recapitalization of the issuer of such Investment or
accounts receivable or (b) as the result of a foreclosure by the
Company or its Restricted Subsidiaries with respect to any secured
Investment or other transfer of title with respect to any secured
Investment in default;
(viii) Investments the payments for which consists of
Capital Stock of the Company (exclusive of Disqualified Capital Stock);
(ix) Investments by Ski Lifts, Inc. in the Real Estate LLC
pursuant to the Real Estate Option; and
(x) additional Investments having an aggregate fair
market value, taken together with all other Investments made pursuant
to this clause (ix) that are at that time outstanding, not to exceed
$1,000,000.
"Permitted Liens" means (i) Liens on property or assets of, or
any shares of stock of or secured debt of, any corporation
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existing at the time such corporation becomes a Restricted Subsidiary of the
Company or at the time such corporation is merged into the Company or any of
its Restricted Subsidiaries; provided that such Liens are not incurred in
connection with, or in contemplation of, such corporation becoming a Restricted
Subsidiary of the Company or merging into the Company or any of its Restricted
Subsidiaries, (ii) Liens securing Refinancing Indebtedness; provided that any
such Lien does not extend to or cover any Property, shares or debt other than
the Property, shares or debt securing the Indebtedness so refunded, refinanced
or extended, (iii) Liens in favor of the Company or any of its Restricted
Subsidiaries, (iv) Liens securing industrial revenue bonds, (v) Liens to secure
Purchase Money Indebtedness that is otherwise permitted under this Indenture;
provided that (a) any such Lien is created solely for the purpose of securing
Indebtedness representing, or incurred to finance, refinance or refund, the
cost (including sales and excise taxes, installation and delivery charges and
other direct costs of, and other direct expenses paid or charged in connection
with, such purchase or construction) of such Property, (b) the principal amount
of the Indebtedness secured by such Lien does not exceed 100% of such costs,
and (c) such Lien does not extend to or cover any Property other than such item
of Property and any improvements on such item, (vi) statutory liens or
landlords', carriers', warehousemen's, mechanics', suppliers', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business
which do not secure any Indebtedness and with respect to amounts not yet
delinquent or being contested in good faith by appropriate proceedings, if a
reserve or other appropriate provision, if any, as shall be required in
conformity with GAAP shall have been made therefor, (vii) other Liens securing
obligations incurred in the ordinary course of business which obligations do
not exceed $2,500,000 in the aggregate at any one time outstanding, (viii) any
extensions, substitutions, replacements or renewals of the foregoing, (ix)
Liens for taxes, assessments or governmental charges that are being contested
in good faith by appropriate proceedings, (x) Liens securing Capitalized Lease
Obligations permitted to be incurred under clause (v) of the definition of
"Permitted Indebtedness"; provided that such Lien does not extend to any
Property other than that subject to the underlying lease, (xi) easements or
minor defects or irregularities in title and other similar charges or
encumbrances on Property not interfering in any material respect with the use
of such Property by the Company or any Restricted Subsidiary, (xii) Liens
securing Indebtedness of the Company or any Restricted Subsidiary under the
Senior Credit Facility and (xiii) deposit arrangements entered into in
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connection with an acquisition or in the ordinary course of business.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government (including any agency or political
subdivision thereof).
"Physical Notes" means certificated Notes in registered form
in substantially the form set forth in Exhibit A.
"Preferred Stock" means any Capital Stock of a Person, however
designated, which entitles the holder thereof to a preference with respect to
dividends, distributions or liquidation proceeds of such Person over the
holders of other Capital Stock issued by such Person.
"Private Exchange" has the meaning set forth in the
Registration Rights Agreement or, with respect to Notes issued under the
Indenture subsequent to the Issue Date pursuant to Section 2.01, a registration
rights agreement substantially identical to the Registration Rights Agreement.
"Private Exchange Notes" has the meaning set forth in the
Registration Rights Agreement or, with respect to Notes issued under the
Indenture subsequent to the Issue Date pursuant to Section 2.01, a registration
rights agreement substantially identical to the Registration Rights Agreement.
"Private Placement Legend" means the legend initially set
forth on the Rule 144A Notes in the form set forth in Exhibit B.
"Property" of any Person means all types of real, personal,
tangible, intangible or mixed property owned by such Person whether or not
included in the most recent consolidated balance sheet of such Person and its
Subsidiaries under GAAP.
"Public Equity Offering" means a public offering by the
Company of shares of its Common Stock (however designated and whether voting or
non-voting) and any and all rights, warrants or options to acquire such Common
Stock.
"Purchase Agreement" means the Securities Purchase Agreement
dated as of March 13, 1997 by and among the Company, the Guarantors and the
Initial Purchaser.
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"Purchase Money Indebtedness" means any Indebtedness incurred
in the ordinary course of business by a Person to finance the cost (including
the cost of construction) of an item of Property, the principal amount of which
Indebtedness does not exceed the sum of (i) 100% of such cost and (ii)
reasonable fees and expenses of such Person incurred in connection therewith.
"Qualified Institutional Buyer" or "QIB" shall have the
meaning specified in Rule 144A promulgated under the Securities Act.
"Qualified IPO" shall mean an underwritten initial offering
and sale by the Company to the public of its Common Stock pursuant to an
effective registration statement filed by the Company under the Securities Act,
provided that the aggregate net proceeds to the Company from such offering and
sale is at least $35,000,000.
"Real Estate LLC" means the Delaware limited liability company
of which Ski Lifts, Inc. is a member and 99% equity interest holder and the
Company is the other member and 1% equity interest holder as of the Issue Date.
"Real Estate Option" means the option granted to the Real
Estate LLC by Ski Lifts, Inc. to purchase approximately 14 acres of
developmental real estate.
"Redeemable Dividend" means, for any dividend or distribution
with regard to Disqualified Capital Stock, the quotient of the dividend or
distribution divided by the difference between one and the maximum statutory
federal income tax rate (expressed as a decimal number between 1 and 0) then
applicable to the issuer of such Disqualified Capital Stock.
"Redemption Date" when used with respect to any Note to be
redeemed means the date fixed for such redemption pursuant to the terms of the
Notes.
"Refinancing Indebtedness" means Indebtedness that refunds,
refinances or extends any Indebtedness of the Company or its Restricted
Subsidiaries outstanding on the Issue Date or other Indebtedness permitted to
be incurred by the Company or its Restricted Subsidiaries pursuant to the terms
of this Indenture, but only to the extent that (i) the Refinancing Indebtedness
is subordinated to the Notes to at least the same extent as the Indebtedness
being refunded, refinanced or extended, if at all, (ii) the Refinancing
Indebtedness is scheduled to mature either (a) no earlier than the Indebtedness
being refunded, refinanced
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or extended, or (b) after the maturity date of the Notes, (iii) the portion, if
any, of the Refinancing Indebtedness that is scheduled to mature on or prior to
the maturity date of the Notes has a weighted average life to maturity at the
time such Refinancing Indebtedness is incurred that is equal to or greater than
the weighted average life to maturity of the portion of the Indebtedness being
refunded, refinanced or extended that is scheduled to mature on or prior to the
maturity date of the Notes, (iv) such Refinancing Indebtedness is in an
aggregate principal amount that is equal to or less than the sum of (a) the
aggregate principal amount then outstanding under the Indebtedness being
refunded, refinanced or extended, (b) the amount of accrued and unpaid
interest, if any, and premiums owed, if any, not in excess of preexisting
prepayment provisions on such Indebtedness being refunded, refinanced or
extended and (c) the amount of customary fees, expenses and costs related to
the incurrence of such Refinancing Indebtedness, and (v) such Refinancing
Indebtedness is incurred by the same Person that initially incurred the
Indebtedness being refunded, refinanced or extended, except that the Company
may incur Refinancing Indebtedness to refund, refinance or extend Indebtedness
of any Wholly-Owned Subsidiary of the Company; provided, however, that
subclauses (ii) and (iii) of this definition will not apply to any refunding or
refinancing of any Indebtedness under the Senior Credit Facility.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of the Issue Date among the Company, the Guarantors and the
Initial Purchaser, as amended from time to time.
"Regulation S" means Regulation S promulgated under the
Securities Act.
"Responsible Officer" when used with respect to the Trustee,
means an officer or assistant officer assigned to the corporate trust
department of the Trustee (or any successor group of the Trustee) with direct
responsibility for the administration of this Indenture and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Restricted Note" has the same meaning as "Restricted
Security" set forth in Rule 144(a)(3) promulgated under the Securities Act;
provided, that the Trustee shall be entitled to request and conclusively rely
upon an Opinion of Counsel with respect to whether any Note is a Restricted
Note.
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"Restricted Payment" means any of the following: (i) the
declaration or payment of any dividend or any other distribution or payment on
Capital Stock of the Company or any Restricted Subsidiary of the Company or any
payment made to the direct or indirect holders (in their capacities as such) of
Capital Stock of the Company or any Restricted Subsidiary of the Company (other
than (x) dividends or distributions payable solely in Capital Stock (other than
Disqualified Capital Stock) or in options, warrants or other rights to purchase
Capital Stock (other than Disqualified Capital Stock), and (y) in the case of
Restricted Subsidiaries of the Company, dividends or distributions payable to
the Company or to a Wholly-Owned Subsidiary of the Company), (ii) the purchase,
redemption or other acquisition or retirement for value of any Capital Stock of
the Company or any of its Restricted Subsidiaries (other than Capital Stock
owned by the Company or a Wholly-Owned Subsidiary of the Company, excluding
Disqualified Capital Stock), (iii) the making of any principal payment on, or
the purchase, defeasance, repurchase, redemption or other acquisition or
retirement for value, prior to any scheduled maturity, scheduled repayment or
scheduled sinking fund payment, of any Indebtedness which is subordinated in
right of payment to the Notes other than subordinated Indebtedness acquired in
anticipation of satisfying a scheduled sinking fund obligation, principal
installment or final maturity (in each case due within one year of the date of
acquisition), (iv) the making of any Investment or guarantee of any Investment
in any Person other than a Permitted Investment, (v) any designation of a
Restricted Subsidiary as an Unrestricted Subsidiary on the basis of the
Investment by the Company therein and (vi) forgiveness of any Indebtedness of
an Affiliate of the Company (other than a Restricted Subsidiary) to the Company
or a Restricted Subsidiary. For purposes of determining the amount expended
for Restricted Payments, cash distributed or invested shall be valued at the
face amount thereof and property other than cash shall be valued at its fair
market value.
"Restricted Subsidiary" means a Subsidiary of the Company
other than an Unrestricted Subsidiary and includes all of the Subsidiaries of
the Company existing as of the Issue Date, except the Real Estate LLC. The
Board of Directors of the Company may designate any Unrestricted Subsidiary or
any Person that is to become a Subsidiary as a Restricted Subsidiary if
immediately after giving effect to such action (and treating any Acquired
Indebtedness as having been incurred at the time of such action), the Company
could have incurred at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) pursuant to Section 4.06 of this Indenture.
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"Rule 144" means Rule 144 promulgated under the Securities
Act.
"Rule 144A" means Rule 144A promulgated under the Securities
Act.
"Sale and Lease-Back Transaction" means any arrangement with
any Person providing for the leasing by the Company or any Restricted
Subsidiary of the Company of any real or tangible personal Property, which
Property has been or is to be sold or transferred by the Company or such
Restricted Subsidiary to such Person in contemplation of such leasing.
"S&P" means Standard & Poor's Ratings Services and its
successors.
"SEC" means the United States Securities and Exchange
Commission as constituted from time to time or any successor performing
substantially the same functions.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Credit Facility" means the Amended and Restated Credit
Agreement, dated as of March 18, 1997, among the Company, the Guarantors, the
lenders listed therein and The First National Bank of Boston, as agent,
together with the documents related thereto (including, without limitation, any
guarantee agreements and security documents), in each case as such agreements
may be amended (including any amendment and restatement thereof), supplemented
or otherwise modified from time to time, including any agreement extending the
maturity of, refinancing, replacing or otherwise restructuring (including
adding Subsidiaries of the Company as additional borrowers or guarantors
thereunder) all or any portion of the Indebtedness under such agreement or any
successor or replacement agreement and whether by the same or any other agent,
lender or group of lenders.
"Significant Restricted Subsidiary" means any Restricted
Subsidiary of the Company that satisfies the criteria for a "significant
subsidiary" set forth in Rule 1.02(v) of Regulation S-X under the Securities
Act.
"Subsidiary" of any specified Person means any corporation,
partnership, joint venture, association or other business entity, whether now
existing or hereafter organized or acquired, (i) in the case of a corporation,
of which more than 50% of the total voting power of the Capital Stock entitled
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(without regard to the occurrence of any contingency) to vote in the election
of directors, officers or trustees thereof is held by such first- named Person
or any of its Subsidiaries; or (ii) in the case of a partnership, joint
venture, association or other business entity, with respect to which such
first-named Person or any of its Subsidiaries has the power to direct or cause
the direction of the management and policies of such entity by contract or
otherwise or if in accordance with GAAP such entity is consolidated with the
first-named Person for financial statement purposes.
"Temporary Cash Investments" means (i) Investments in
marketable direct obligations issued or guaranteed by the United States of
America, or of any governmental agency or political subdivision thereof,
maturing within 365 days of the date of purchase; (ii) Investments in
certificates of deposit issued by a bank organized under the laws of the United
States of America or any state thereof or the District of Columbia, in each
case having capital, surplus and undivided profits at the time of investment
totaling more than $500,000,000 and rated at the time of investment at least A
by S&P and A-2 by Xxxxx'x maturing within 365 days of purchase; or (iii)
Investments not exceeding 365 days in duration in money market funds that
invest substantially all of such funds' assets in the Investments described in
the preceding clauses (i) and (ii).
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
Section Section 77aaa-77bbbb) as in effect on the date of this Indenture
(except as provided in Section 8.03 hereof).
"Trustee" means the party named as such in this Indenture
until a successor replaces it pursuant to this Indenture and thereafter means
the successor.
"Unrestricted Subsidiary" means (a) any Subsidiary of an
Unrestricted Subsidiary and (b) any Subsidiary of the Company which is
classified as an Unrestricted Subsidiary by a resolution adopted by the Board
of Directors of the Company; provided that a Subsidiary organized or acquired
after the Issue Date may be so classified as an Unrestricted Subsidiary only if
such classification is in compliance with the covenant set forth in Section
4.09 hereof. The Trustee shall be given prompt notice by the Company of each
resolution adopted by the Board of Directors of the Company under this
provision, and furnished with a Board Resolution with respect to each such
resolution adopted.
"U.S. Government Obligations" means (a) securities that are
direct obligations of the United States of America for the
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payment of which its full faith and credit are pledged or (b) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America, the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which, in either case, are not callable or redeemable at the option of
the issuer thereof, and shall also include a depository receipt issued by a
bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with
respect to any such U.S. Government Obligation or a specific payment of
principal of or interest on any such U.S. Government Obligation held by such
custodian for the account of the holder of such depository receipt; provided
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation or a specific payment of principal or interest on any such U.S.
Government Obligation held by such custodian for the account of the holder of
such depository receipt.
"Voting Stock" means, with respect to any Person, securities
of any class or classes of Capital Stock in such Person entitling the holders
thereof to vote under ordinary circumstances in the election of members of the
board of directors or other governing body of such Person.
"Wholly-Owned Subsidiary" means any Restricted Subsidiary, all
of the outstanding voting securities (other than directors' qualifying shares)
of which are owned, directly or indirectly, by the Company.
Section 1.02. Other Definitions.
The definitions of the following terms may be found in the
sections indicated as follows:
Term Defined in Section
---- ------------------
"Affiliate Transaction" . . . . . . . . . . . . . . . . . . . . . . 4.11
"Agent Members" . . . . . . . . . . . . . . . . . . . . . . . . . . 2.14
"Bankruptcy Law" . . . . . . . . . . . . . . . . . . . . . . . . . 6.01
"Business Day" . . . . . . . . . . . . . . . . . . . . . . . . . . 11.07
"Cedel" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.16(a)
"Change of Control Offer" . . . . . . . . . . . . . . . . . . . . . 4.19
"Change of Control Payment Date" . . . . . . . . . . . . . . . . . 4.19
"Covenant Defeasance" . . . . . . . . . . . . . . . . . . . . . . . 9.03
"Custodian" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01
"Euroclear" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.16(a)
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"Event of Default" . . . . . . . . . . . . . . . . . . . . . . . . 6.01
"Excess Proceeds Offer" . . . . . . . . . . . . . . . . . . . . . . 4.10
"Global Notes" . . . . . . . . . . . . . . . . . . . . . . . . . . 2.01
"Legal Defeasance" . . . . . . . . . . . . . . . . . . . . . . . . 9.02
"Legal Holiday" . . . . . . . . . . . . . . . . . . . . . . . . . . 11.07
"Offer Period" . . . . . . . . . . . . . . . . . . . . . . . . . . 4.10
"Option Notes" . . . . . . . . . . . . . . . . . . . . . . . . . . 2.01
"Other Notes" . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.02
"Paying Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . 2.04
"Purchase Date" . . . . . . . . . . . . . . . . . . . . . . . . . . 4.10
"Registrar" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.04
"Regulation S Global Notes" . . . . . . . . . . . . . . . . . . . . 2.16(a)
"Regulation S Notes" . . . . . . . . . . . . . . . . . . . . . . . 2.02
"Reinvestment Date" . . . . . . . . . . . . . . . . . . . . . . . . 4.10
"Restricted Global Note" . . . . . . . . . . . . . . . . . . . . . 2.16(a)
"Rule 144A Notes" . . . . . . . . . . . . . . . . . . . . . . . . . 2.02
"Subsequent Series Notes" . . . . . . . . . . . . . . . . . . . . . 2.01
Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
portion of such provision required to be incorporated herein in order for this
Indenture to be qualified under the TIA is incorporated by reference in and
made a part of this Indenture. The following TIA terms used in this Indenture
have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Notes.
"indenture securityholder" means a Holder or Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor on the indenture securities" means the Company, the
Guarantors or any other obligor on the Notes.
All other terms used in this Indenture that are defined by the
TIA, defined in the TIA by reference to another statute or defined by SEC rule
have the meanings therein assigned to them.
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Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein, whether
defined expressly or by reference;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular;
(5) words used herein implying any gender shall apply to
both genders; and
(6) whenever in this Indenture there is mentioned, in any
context, Principal, interest or any other amount payable under or with
respect to any Note, such mention shall be deemed to include mention
of the payment of Additional Interest to the extent that, in such
context, Additional Interest is, was or would be payable in respect
thereof.
ARTICLE 2
THE NOTES
Section 2.01. Amount of Notes.
The Trustee shall authenticate (i) Notes for original issue on
the Issue Date in the aggregate principal amount of $110,000,000, (ii) in the
event of an exercise by the Initial Purchaser pursuant to Section 2.2(b) of the
Purchase Agreement of its option to purchase up to an additional $6,000,000
aggregate principal amount of Notes (the "Option Notes"), Option Notes for
original issue in the aggregate principal amount not to exceed $6,000,000,
which Option Notes may not be issued after April 22, 1997 and (iii) Notes
(other than Option Notes) for original issue subsequent to the Issue Date in an
aggregate principal amount not to exceed $90,000,000 (minus the aggregate
principal amount of any Option Notes authenticated pursuant to the terms
hereof) in one or more series ("Subsequent Series Notes"), in each case upon a
written order of the Company in the form of an Officers' Certificate of the
Company; provided, however, that no Subsequent
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Series Notes may be authenticated and delivered in an aggregate principal
amount of less than $25,000,000; and provided, further, that the Company must,
in issuing any Subsequent Series Notes, comply with Section 4.06. Each such
written order shall specify the amount of Notes to be authenticated, the date
on which the Notes are to be authenticated and the title of the Notes of the
series (which shall distinguish the Notes of the series from Notes of any other
series). All Notes issued on the Issue Date, Option Notes and Subsequent
Series Notes shall be identical in all respects other than issue dates and the
date from which interest accrues and except as provided in this Section 2.01
and except that any Subsequent Series Notes may contain any notations, legends
or endorsements permitted under Section 2.02. The aggregate principal amount
of Notes outstanding at any time may not exceed $200,000,000, except as
provided in Section 2.08.
Upon receipt of a Company Request and an Officers' Certificate
certifying that a registration statement relating to an exchange offer
specified in the Registration Rights Agreement or, with respect to Notes issued
under the Indenture subsequent to the Issue Date, a registration rights
agreement substantially identical to the Registration Rights Agreement, is
effective and that the conditions precedent to a private exchange thereunder
have been met, the Trustee shall authenticate an additional series of Notes in
an aggregate principal amount not to exceed $200.0 million for issuance in
exchange for the Notes tendered for exchange pursuant to such exchange offer
registered under the Securities Act or pursuant to a Private Exchange.
Exchange Notes or Private Exchange Notes may have such distinctive series
designations and such changes in the form thereof as are specified in the
Company Request referred to in the preceding sentence.
In the event that the Company shall issue and the Trustee
shall authenticate any Notes issued under this Indenture subsequent to the
Issue Date pursuant to the first paragraph of this Section 2.01, the Company
shall use its best efforts to obtain the same "CUSIP" number for such Notes as
is printed on the Notes outstanding at such time; provided, however, that if
any series of Notes issued under this Indenture subsequent to the Issue Date is
determined, pursuant to an Opinion of Counsel of the Company in a form
reasonably satisfactory to the Trustee to be a different class of security than
the Notes outstanding at such time for federal income tax purposes, the Company
may obtain a "CUSIP" number for such Notes that is different than the "CUSIP"
number printed on the Notes then outstanding. Notwithstanding the foregoing,
all Notes issued under this Indenture shall vote and consent together on all
matters as one
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class and no series of Notes will have the right to vote or consent as a
separate class on any matter.
Section 2.02. Form and Dating.
The Notes and the Trustee's certificate of authentication with
respect thereto shall be substantially in the form set forth in Exhibit A,
which is incorporated in and forms a part of this Indenture. The Notes may
have notations, legends or endorsements required by law, rule or usage to which
the Company is subject. Without limiting the generality of the foregoing,
Notes offered and sold to Qualified Institutional Buyers in reliance on Rule
144A ("Rule 144A Notes") shall bear the legend and include the form of
assignment set forth in Exhibit B, Notes offered and sold in offshore
transactions in reliance on Regulation S ("Regulation S Notes") shall bear the
legend and include the form of assignment set forth in Exhibit C, and Notes
offered and sold to Institutional Accredited Investors in transactions exempt
from registration under the Securities Act not made in reliance on Rule 144A or
Regulation S ("Other Notes") may be represented by the Restricted Global Note
or, if such an investor may not hold an interest in the Restricted Global Note,
a Physical Note bearing the Private Placement Legend. Each Note shall be dated
the date of its authentication.
The terms and provisions contained in the Notes shall
constitute, and are expressly made, a part of this Indenture and, to the extent
applicable, the Company, the Guarantors and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and provisions and
agree to be bound thereby.
The Notes may be presented for registration of transfer and
exchange at the offices of the Registrar.
Section 2.03. Execution and Authentication.
Two Officers shall sign, or one Officer shall sign and one
Officer (each of whom shall, in each case, have been duly authorized by all
requisite corporate actions) shall attest to, the Notes for the Company by
manual or facsimile signature.
If an Officer whose signature is on a Note was an Officer at
the time of such execution but no longer holds that office at the time the
Trustee authenticates the Note, the Note shall be valid nevertheless.
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No Note shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any Note
shall be conclusive evidence, and the only evidence, that such Note has been
duly authenticated and delivered hereunder. Notwithstanding the foregoing, if
any Note shall have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such Note to the Trustee
for cancellation as provided in Section 2.12, for all purposes of this
Indenture such Note shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate the Notes. Unless otherwise provided
in the appointment, an authenticating agent may authenticate the Notes whenever
the Trustee may do so. Each reference in this Indenture to authentication by
the Trustee includes authentication by such agent. An authenticating agent has
the same rights as an Agent to deal with the Company and Affiliates of the
Company. Each Paying Agent is designated as an authenticating agent for
purposes of this Indenture.
The Notes shall be issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof.
Section 2.04. Registrar and Paying Agent.
The Company shall maintain an office or agency (which shall be
located in the Borough of Manhattan in The City of New York, State of New York)
where Notes may be presented for registration of transfer or for exchange (the
"Registrar"), and an office or agency where Notes may be presented for payment
(the "Paying Agent") and an office or agency where notices and demands to or
upon the Company, if any, in respect of the Notes and this Indenture may be
served. The Registrar shall keep a register of the Notes and of their transfer
and exchange. The Company may have one or more additional Paying Agents. The
term "Paying Agent" includes any additional Paying Agent. Neither the Company
nor any Affiliate thereof may act as Paying Agent.
The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture, which shall incorporate the
provisions of the TIA. The agreement shall implement the provisions of this
Indenture that relate to such
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Agent. The Company shall notify the Trustee of the name and address of any
such Agent. If the Company fails to maintain a Registrar or Paying Agent, or
fails to give the foregoing notice, the Trustee shall act as such and shall be
entitled to appropriate compensation in accordance with Section 7.07.
The Company initially appoints the Trustee as Registrar,
Paying Agent and agent for service of notices and demands in connection with
the Notes and this Indenture.
Section 2.05. Paying Agent To Hold Money in Trust.
Each Paying Agent shall hold in trust for the benefit of the
Noteholders or the Trustee all money held by the Paying Agent for the payment
of principal of or premium or interest on the Notes (whether such money has
been paid to it by the Company or any other obligor on the Notes or the
Guarantors), and the Company and the Paying Agent shall notify the Trustee of
any default by the Company (or any other obligor on the Notes) in making any
such payment. Money held in trust by the Paying Agent need not be segregated
except as required by law and in no event shall the Paying Agent be liable for
any interest on any money received by it hereunder. The Company at any time
may require the Paying Agent to pay all money held by it to the Trustee and
account for any funds disbursed and the Trustee may at any time during the
continuance of any Event of Default specified in Section 6.01 (1) or (2), upon
written request to the Paying Agent, require such Paying Agent to pay forthwith
all money so held by it to the Trustee and to account for any funds disbursed.
Upon making such payment, the Paying Agent shall have no further liability for
the money delivered to the Trustee.
Section 2.06. Noteholder 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 the Noteholders. If the Trustee is not the Registrar, the Company
shall furnish to the Trustee at least five Business Days before each Interest
Payment Date, and at such other times as the Trustee may request in writing, a
list in such form and as of such date as the Trustee may reasonably require of
the names and addresses of the Noteholders.
Section 2.07. Transfer and Exchange.
Subject to Sections 2.16 and 2.17, when Notes are presented to
the Registrar with a request from the Holder of such Notes to register a
transfer or to exchange them for an equal
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principal amount of Notes of other authorized denominations, the Registrar
shall register the transfer as requested. Every Note presented or surrendered
for registration of transfer or exchange shall be duly endorsed or be
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Registrar, duly executed by the Holder thereof or his attorneys
duly authorized in writing. To permit registrations of transfers and
exchanges, the Company shall issue and execute and the Trustee shall
authenticate new Notes (and the Guarantors shall execute the guarantee thereon)
evidencing such transfer or exchange at the Registrar's request. No service
charge shall be made to the Noteholder for any registration of transfer or
exchange. The Company may require from the Noteholder payment of a sum
sufficient to cover any transfer taxes or other governmental charge that may be
imposed in relation to a transfer or exchange, but this provision shall not
apply to any exchange pursuant to Section 2.11, 3.06, 4.10, 4.19 or 8.05 (in
which events the Company shall be responsible for the payment of such taxes).
The Registrar shall not be required to exchange or register a transfer of any
Note for a period of 15 days immediately preceding the mailing of notice of
redemption of Notes to be redeemed or of any Note selected, called or being
called for redemption except the unredeemed portion of any Note being redeemed
in part.
Any Holder of the Global Note shall, by acceptance of such
Global Note, agree that transfers of the beneficial interests in such Global
Note may be effected only through a book entry system maintained by the Holder
of such Global Note (or its agent), and that ownership of a beneficial
interest in the Global Note shall be required to be reflected in a book entry.
Each Holder of a Note agrees to indemnify the Company and the
Trustee against any liability that may result from the transfer, exchange or
assignment of such Holder's Note in violation of any provision of this
Indenture and/or applicable U.S. Federal or state securities law.
Except as expressly provided herein, neither the Trustee nor
the Registrar shall have any duty to monitor the Company's compliance with or
have any responsibility with respect to the Company's compliance with any
Federal or state securities laws.
Section 2.08. Replacement Notes.
If a mutilated Note is surrendered to the Registrar or the
Trustee, or if the Holder of a Note claims that the Note has
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been lost, destroyed or wrongfully taken, the Company shall issue and the
Trustee shall authenticate a replacement Note (and the Guarantors shall execute
the guarantee thereon) if the Holder of such Note furnishes to the Company and
the Trustee evidence reasonably acceptable to them of the ownership and the
destruction, loss or theft of such Note and if the requirements of Section
8-405 of the New York Uniform Commercial Code as in effect on the date of this
Indenture are met. If required by the Trustee or the Company, an indemnity
bond shall be posted, sufficient in the judgment of both to protect the
Company, the Guarantors, the Trustee or any Paying Agent from any loss that any
of them may suffer if such Note is replaced. The Company may charge such
Holder for the Company's reasonable out-of-pocket expenses in replacing such
Note and the Trustee may charge the Company for the Trustee's expenses
(including, without limitation, attorneys' fees and disbursements) in replacing
such Note. Every replacement Note shall constitute a contractual obligation of
the Company.
Section 2.09. Outstanding Notes.
The Notes outstanding at any time are all Notes that have been
authenticated by the Trustee except for (a) those cancelled by it, (b) those
delivered to it for cancellation, (c) to the extent set forth in Sections 9.01
and 9.02, on or after the date on which the conditions set forth in Section
9.01 or 9.02 have been satisfied, those Notes theretofore authenticated and
delivered by the Trustee hereunder and (d) those described in this Section 2.09
as not outstanding. Subject to Section 2.10, a Note does not cease to be
outstanding because the Company or one of its Affiliates holds the Note.
If a Note is replaced pursuant to Section 2.08, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser in whose hands such Note is a
legal, valid and binding obligation of the Company.
If the Paying Agent holds, in its capacity as such, on any
Maturity Date or on any optional redemption date, money sufficient to pay all
accrued interest and principal with respect to the Notes payable on that date
and is not prohibited from paying such money to the Holders thereof pursuant to
the terms of this Indenture, then on and after that date such Notes cease to be
outstanding and interest on them ceases to accrue.
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Section 2.10. Treasury Notes.
In determining whether the Holders of the required principal
amount of Notes have concurred in any declaration of acceleration or notice of
default or direction, waiver or consent or any amendment, modification or other
change to this Indenture, Notes owned by the Company or any other Affiliate of
the Company shall be disregarded as though they were not outstanding, except
that for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent or any amendment, modification
or other change to this Indenture, only Notes as to which a Responsible Officer
of the Trustee has received an Officers' Certificate stating that such Notes
are so owned shall be so disregarded. Notes so owned which have been pledged
in good faith shall not be disregarded if the pledgee established to the
satisfaction of the Trustee the pledgee's right so to act with respect to the
Notes and that the pledgee is not the Company, a Guarantor, any other obligor
on the Notes or any of their respective Affiliates.
Section 2.11. Temporary Notes.
Until definitive Notes are prepared and ready for delivery,
the Company may prepare and the Trustee shall authenticate temporary Notes.
Temporary Notes shall be substantially in the form of definitive Notes but may
have variations that the Company considers appropriate for temporary Notes.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Notes in exchange for temporary Notes. Until such
exchange, temporary Notes shall be entitled to the same rights, benefits and
privileges as definitive Notes.
Section 2.12. Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for registration of transfer, exchange or
payment. The Trustee shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall (subject to
the record-retention requirements of the Exchange Act) destroy cancelled Notes
and deliver a certificate of destruction thereof to the Company. The Company
may not reissue or resell, or issue new Notes to replace, Notes that the
Company has redeemed or paid, or that have been delivered to the Trustee for
cancellation.
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Section 2.13. Defaulted Interest.
If the Company defaults on a payment of interest on the Notes,
it shall pay the defaulted interest, plus (to the extent permitted by law) any
interest payable on the defaulted interest, in accordance with the terms
hereof, to the Persons who are Noteholders on a subsequent special record date,
which date shall be at least five Business Days prior to the payment date. The
Company shall fix such special record date and payment date in a manner
satisfactory to the Trustee. At least 15 days before such special record date,
the Company shall mail to each Noteholder a notice that states the special
record date, the payment date and the amount of defaulted interest, and
interest payable on defaulted interest, if any, to be paid. The Company may
make payment of any defaulted interest in any other lawful manner not
inconsistent with the requirements (if applicable) of any securities exchange
on which the Notes may be listed and, upon such notice as may be required by
such exchange, if, after written notice given by the Company to the Trustee of
the proposed payment pursuant to this sentence, such manner of payment shall be
deemed practicable by the Trustee.
Section 2.14. CUSIP Number.
The Company in issuing the Notes may use a "CUSIP" number, and
if so, such CUSIP number shall be included in notices of redemption or exchange
as a convenience to Holders; provided, that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Notes, and that reliance may be placed only on
the other identification numbers printed on the Notes. The Company shall
promptly notify the Trustee of any such CUSIP number used by the Company in
connection with the issuance of the Notes and of any change in the CUSIP
number.
Section 2.15. Deposit of Moneys.
Prior to 10:00 a.m., New York City time, on each Interest
Payment Date and Maturity Date, the Company shall have deposited with the
Paying Agent in immediately available funds money sufficient to make cash
payments, if any, due on such Interest Payment Date or Maturity Date, as the
case may be, in a timely manner which permits the Trustee to remit payment to
the Holders on such Interest Payment Date or Maturity Date, as the case may be.
The principal and interest on Global Notes shall be payable to the Depository
or its nominee, as the case may be, as the sole registered owner and the sole
holder of the Global Notes
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represented thereby. The principal and interest on Physical Notes shall be
payable at the office of the Paying Agent.
Section 2.16. Book-Entry Provisions for Global Notes.
(a) Rule 144A Notes and Other Notes which may be held in
global form, other than Regulation S Notes, initially shall be represented by
one or more notes in registered, global form without interest coupons
(collectively, the "Restricted Global Note"). Regulation S Notes initially
shall be represented by one or more notes in registered, global form without
interest coupons (collectively, the "Regulation S Global Note," and, together
with the Restricted Global Note and any other global notes representing Notes,
the "Global Notes"). The Global Notes initially shall (i) be registered in the
name of the Depository or the nominee of such Depository, in each case for
credit to an account of an Agent Member (or, in the case of the Regulation S
Global Notes, of Euroclear System ("Euroclear") and Cedel Bank, S.A.
("CEDEL")), (ii) be delivered to the Trustee as custodian for such Depository
and (iii) bear legends as set forth in Exhibit D.
Members of, or direct or indirect participants in, the
Depository ("Agent Members") shall have no rights under this Indenture with
respect to any Global Note held on their behalf by the Depository, or the
Trustee as its custodian, or under the Global Notes, and the Depository may be
treated by the Company, the Trustee and any agent of the Company or the Trustee
as the absolute owner of the Global Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depository
or impair, as between the Depository and its Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of any
Note.
(b) Transfers of Global Notes shall be limited to
transfer in whole, but not in part, to the Depository, its successors or their
respective nominees. Interests of beneficial owners in the Global Notes may be
transferred or exchanged for Physical Notes in accordance with the rules and
procedures of the Depository and the provisions of Section 2.17. In addition,
a Global Note shall be exchangeable for Physical Notes if (i) the Depository
(x) notifies the Company that it is unwilling or unable to continue as
depository for such Global Note and the Company thereupon fails to appoint a
successor depository or (y) has ceased to be a clearing agency registered under
the Xxxxxxxx
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Xxx, (xx) the Company, at its option, notifies the Trustee in writing that it
elects to cause the issuance of such Physical Notes or (iii) there shall have
occurred and be continuing an Event of Default with respect to the Notes. In
all cases, Physical Notes delivered in exchange for any Global Note or
beneficial interests therein shall be registered in the names, and issued in
any approved denominations, requested by or on behalf of the Depository (in
accordance with its customary procedures).
(c) In connection with any transfer or exchange of a
portion of the beneficial interest in any Global Note to beneficial owners
pursuant to paragraph (b), the Registrar shall (if one or more Physical Notes
are to be issued) reflect on its books and records the date and a decrease in
the principal amount of the Global Note in an amount equal to the principal
amount of the beneficial interest in the Global Note to be transferred, and the
Company shall execute, and the Trustee shall upon receipt of a written order
from the Company authenticate and make available for delivery, one or more
Physical Notes of like tenor and amount.
(d) In connection with the transfer of Global Notes as an
entirety to beneficial owners pursuant to paragraph (b), the Global Notes shall
be deemed to be surrendered to the Trustee for cancellation, and the Company
shall execute, and the Trustee shall authenticate and deliver, to each
beneficial owner identified by the Depository in writing in exchange for its
beneficial interest in the Global Notes, an equal aggregate principal amount of
Physical Notes of authorized denominations.
(e) Any Physical Note constituting a Restricted Note
delivered in exchange for an interest in a Global Note pursuant to paragraph
(b), (c) or (d) shall, except as otherwise provided by paragraphs (a)(i)(x) and
(c) of Section 2.17, bear the Private Placement Legend or, in the case of the
Regulation S Global Note, the legend set forth in Exhibit C, in each case,
unless the Company determines otherwise in compliance with applicable law.
(f) On or prior to the 40th-day after the later of the
commencement of the offering of the Notes represented by the Regulation S
Global Note and the issue date of such Notes (such period through and including
such 40th day, the "Restricted Period"), a beneficial interest in a Regulation
S Global Note may be transferred to a Person who takes delivery in the form of
an interest in the corresponding Restricted Global Note only upon receipt by
the Trustee of a written certification from the transferor to the effect that
such transfer is being made (i)(a)
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to a Person whom the transferor reasonably believes is a Qualified
Institutional Buyer in a transaction meeting the requirements of Rule 144A or
(b) pursuant to another exemption from the registration requirements under the
Securities Act which is accompanied by an opinion of counsel regarding the
availability of such exemption and (ii) in accordance with all applicable
securities laws of any state of the United States or any other jurisdiction.
(g) Beneficial interests in the Restricted Global Note
may be transferred to a Person who takes delivery in the form of an interest in
the Regulation S Global Note, whether before or after the expiration of the
Restricted Period, only if the transferor first delivers to the Trustee a
written certificate to the effect that such transfer is being made in
accordance with Rule 903 or 904 of Regulation S or Rule 144 (if available) and
that, if such transfer occurs prior to the expiration of the Restricted Period,
the interest transferred will be held immediately thereafter through Euroclear
or CEDEL.
(h) Any beneficial interest in one of the Global Notes
that is transferred to a Person who takes delivery in the form of an interest
in another Global Note shall, upon transfer, cease to be an interest in such
Global Note and become an interest in such other Global Note and, accordingly,
shall thereafter be subject to all transfer restrictions and other procedures
applicable to beneficial interests in such other Global Note for as long as it
remains such an interest.
(i) The Holder of any Global Note may grant proxies and
otherwise authorize any Person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Notes.
Section 2.17. Special Transfer Provisions.
(a) Transfers to Non-QIB Institutional Accredited
Investors and Non-U.S. Persons. The following provisions shall apply with
respect to the registration of any proposed transfer of a Note constituting a
Restricted Note to any Institutional Accredited Investor which is not a QIB or
to any Non-U.S. Person:
(i) the Registrar shall register the transfer of any Note
constituting a Restricted Note, whether or not such Note bears the
Private Placement Legend, if (x) the requested transfer is after March
18, 2000 or such other date as such Note shall be freely transferable
under Rule
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144 as certified in an Officer's Certificate or (y) (1) in the case of
a transfer to an Institutional Accredited Investor which is not a QIB
(excluding Non-U.S. Persons), the proposed transferee has delivered to
the Registrar a certificate substantially in the form of Exhibit E
hereto or (2) in the case of a transfer to a Non-U.S. Person
(including a QIB), the proposed transferor has delivered to the
Registrar a certificate substantially in the form of Exhibit F hereto;
provided that in the case of a transfer of a Note bearing the Private
Placement Legend for a Note not bearing the Private Placement Legend,
the Registrar has received an Officers' Certificate authorizing such
transfer; and
(ii) if the proposed transferor is an Agent Member holding
a beneficial interest in a Global Note, upon receipt by the Registrar
of (x) the certificate, if any, required by paragraph (i) above and
(y) instructions given in accordance with the Depository's and the
Registrar's procedures,
whereupon (a) the Registrar shall reflect on its books and records the date and
(if the transfer does not involve a transfer of outstanding Physical Notes) a
decrease in the principal amount of a Global Note in an amount equal to the
principal amount of the beneficial interest in a Global Note to be transferred,
and (b) the Registrar shall reflect on its books and records the date and an
increase in the principal amount of a Global Note in an amount equal to the
principal amount of the beneficial interest in the Global Note transferred or
the Company shall execute and the Trustee shall authenticate and make available
for delivery one or more Physical Notes of like tenor and amount.
(b) Transfers to QIBs. The following provisions shall
apply with respect to the registration of any proposed registration of transfer
of a Note constituting a Restricted Note to a QIB (excluding transfers to
Non-U.S. Persons):
(i) the Registrar shall register the transfer if such
transfer is being made by a proposed transferor who has checked the
box provided for on such Holder's Note stating, or has otherwise
advised the Company and the Registrar in writing, that the sale has
been made in compliance with the provisions of Rule 144A to a
transferee who has signed the certification provided for on such
Holder's Note stating, or has otherwise advised the Company and the
Registrar in writing, that it is purchasing the Note for its own
account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a
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QIB within the meaning of Rule 144A, and is aware that the sale to it
is being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Company as it has requested
pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon
its foregoing representations in order to claim the exemption from
registration provided by Rule 144A; and
(ii) if the proposed transferee is an Agent Member, and
the Notes to be transferred consist of Physical Notes which after
transfer are to be evidenced by an interest in the Global Note, upon
receipt by the Registrar of instructions given in accordance with the
Depository's and the Registrar's procedures, the Registrar shall
reflect on its books and records the date and an increase in the
principal amount of the Global Note in an amount equal to the
principal amount of the Physical Notes to be transferred, and the
Trustee shall cancel the Physical Notes so transferred.
(c) Private Placement Legend. Upon the registration of
transfer, exchange or replacement of Notes not bearing the Private Placement
Legend, the Registrar shall deliver Notes that do not bear the Private
Placement Legend. Upon the registration of transfer, exchange or replacement
of Notes bearing the Private Placement Legend, the Registrar shall deliver only
Notes that bear the Private Placement Legend unless (i) it has received the
Officers' Certificate required by paragraph (a)(i)(y) of this Section 2.17,
(ii) there is delivered to the Registrar an Opinion of Counsel reasonably
satisfactory to the Company and the Trustee to the effect that neither such
legend nor the related restrictions on transfer are required in order to
maintain compliance with the provisions of the Securities Act or (iii) such
Note has been sold pursuant to an effective registration statement under the
Securities Act and the Registrar has received an Officers' Certificate from the
Company to such effect.
(d) General. By its acceptance of any Note bearing the
Private Placement Legend, each Holder of such Note acknowledges the
restrictions on transfer of such Note set forth in this Indenture and in the
Private Placement Legend and agrees that it will transfer such Note only as
provided in this Indenture.
The Registrar shall retain for a period of two years copies of
all letters, notices and other written communications received pursuant to
Section 2.16 or this Section 2.17. The
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Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable notice to the Registrar.
Section 2.18. Computation of Interest.
Interest on the Notes shall be computed on the basis of a
360-day year of twelve 30-day months.
ARTICLE 3
REDEMPTION
Section 3.01. Election to Redeem; Notices to Trustee.
If the Company elects to redeem Notes pursuant to paragraph 5
of the Notes, at least 45 days prior to the Redemption Date (unless a shorter
notice shall be agreed to in writing by the Trustee) but not more than 65 days
before the Redemption Date, the Company shall notify the Trustee in writing of
the Redemption Date, the principal amount of Notes to be redeemed and the
redemption price, and deliver to the Trustee an Officers' Certificate stating
that such redemption will comply with the conditions contained in paragraph 5
of the Notes.
Section 3.02. Selection by Trustee of Notes To Be Redeemed.
In the event that fewer than all of the Notes are to be
redeemed, the Trustee shall select the Notes to be redeemed, if the Notes are
listed on a national securities exchange, in accordance with the rules of such
exchange or, if the Notes are not so listed, either on a pro rata basis or by
lot, or such other method as it shall deem fair and equitable; provided,
however, that if a partial redemption is made with the proceeds of a Public
Equity Offering, selection of the Notes or portion thereof for redemption shall
be made by the Trustee on a pro rata basis to the extent practical, unless such
a method is prohibited. The Trustee shall promptly notify the Company of the
Notes selected for redemption and, in the case of any Notes selected for
partial redemption, the principal amount thereof to be redeemed. The Trustee
may select for redemption portions of the principal of the Notes that have
denominations larger than $1,000. Notes and portions thereof the Trustee
selects shall be redeemed in amounts of $1,000 or whole multiples of $1,000.
For all purposes of this Indenture unless the context otherwise
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requires, provisions of this Indenture that apply to Notes called for
redemption also apply to portions of Notes called for redemption.
Section 3.03. Notice of Redemption.
At least 30 days, and no more than 60 days, before a
Redemption Date, the Company shall mail, or cause to be mailed, a notice of
redemption by first-class mail to each Holder of Notes to be redeemed at his or
her last address as the same appears on the registry books maintained by the
Registrar pursuant to Section 2.04 hereof.
The notice shall identify the Notes to be redeemed (including
the CUSIP numbers thereof) and shall state:
(1) the Redemption Date;
(2) the redemption price and the amount of premium and
accrued interest to be paid;
(3) if any Note is being redeemed in part, the portion of
the principal amount of such Note to be redeemed and that, after the
Redemption Date and upon surrender of such Note, a new Note or Notes
in principal amount equal to the unredeemed portion will be issued;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
(6) that unless the Company default in making the
redemption payment, interest on Notes called for redemption ceases to
accrue on and after the Redemption Date;
(7) the provision of paragraph 5 of the Notes pursuant to
which the Notes called for redemption are being redeemed; and
(8) the aggregate principal amount of Notes that are
being redeemed.
At the Company's written request made at least five Business
Days prior to the date on which notice is to be given, the Trustee shall give
the notice of redemption in the Company's name and at the Company's sole
expense.
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Section 3.04. Effect of Notice of Redemption.
Once the notice of redemption described in Section 3.03 is
mailed, Notes called for redemption become due and payable on the Redemption
Date and at the redemption price, including any premium, plus interest accrued
to the Redemption Date. Upon surrender to the Paying Agent, such Notes shall
be paid at the redemption price, including any premium, plus interest accrued
to the Redemption Date, provided that if the Redemption Date is after a regular
record date and on or prior to the Interest Payment Date, the accrued interest
shall be payable to the Holder of the redeemed Notes registered on the relevant
record date, and provided, further, that if a Redemption Date is a Legal
Holiday, payment shall be made on the next succeeding Business Day and no
interest shall accrue for the period from such Redemption Date to such
succeeding Business Day.
Section 3.05. Deposit of Redemption Price.
On or prior to 10:00 A.M., New York City time, on each
Redemption Date, the Company shall deposit with the Paying Agent in immediately
available funds money sufficient to pay the redemption price of, including
premium, if any, and accrued interest on all Notes to be redeemed on that date
other than Notes or portions thereof called for redemption on that date which
have been delivered by the Company to the Trustee for cancellation.
On and after any Redemption Date, if money sufficient to pay
the redemption price of, including premium, if any, and accrued interest on
Notes called for redemption shall have been made available in accordance with
the preceding paragraph, the Notes called for redemption will cease to accrue
interest and the only right of the Holders of such Notes will be to receive
payment of the redemption price of and, subject to the first proviso in Section
3.04, accrued and unpaid interest on such Notes to the Redemption Date. If any
Note surrendered for redemption shall not be so paid, interest will be paid,
from the Redemption Date until such redemption payment is made, on the unpaid
principal of the Note and any interest not paid on such unpaid principal, in
each case, at the rate and in the manner provided in the Notes.
Section 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Trustee
shall authenticate for the Holder thereof a new Note
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equal in principal amount to the unredeemed portion of the Note surrendered.
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes.
The Company shall pay the principal of and interest (including
all Additional Interest as provided in the Registration Rights Agreement or, in
the case of Notes issued subsequent to the Issue Date, a registration rights
agreement substantially identical to the Registration Rights Agreement) on the
Notes on the dates and in the manner provided in the Notes and this Indenture.
An installment of principal or interest shall be considered paid on the date it
is due if the Trustee or Paying Agent holds on that date money designated for
and sufficient to pay such installment.
The Company shall pay interest on overdue principal (including
post-petition interest in a proceeding under any Bankruptcy Law), and overdue
interest, to the extent lawful, at the rate specified in the Notes.
Section 4.02. SEC Reports.
(a) The Company will file with the SEC all information,
documents and reports to be filed with the SEC pursuant to Section 13 or 15(d)
of the Exchange Act, whether or not the Company is subject to such filing
requirements, so long as the SEC will accept such filings; provided, however,
that the Company shall not be required to make any such filings prior to the
date on which the Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended July 31, 1997 would have been required to be filed if, at the
time such filings would have been required to be made with the SEC, either (i)
the Company shall have provided to each Holder of the Notes the information
that would have been required to be filed or (ii) the Exchange Registration
Statement (as such term is defined in the Registration Rights Agreement) has
been filed with the SEC but has not yet been declared effective and copies of
the Exchange Offer Registration Statement and any amendments thereto (to the
extent such Registration Statement and/or amendments contain additional
information not disclosed in the Offering Memorandum that would have been the
subject of a filing required to be made under
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Section 13 or 15(d) of the Exchange Act) have been provided to each Holder of
the Notes, provided that any exhibits to the Exchange Registration Statement
(or any amendments thereto) need not be delivered to any Holder of the Notes,
but sufficient copies thereof shall be furnished to the Trustee as reasonably
requested to permit the Trustee to deliver any such exhibits to any Holder of
the Notes upon request. The Company (at its own expense) shall file with the
Trustee within 100 days after the end of each fiscal year of the Company, or
within 50 days after the end of each of the first three fiscal quarters of each
fiscal year of the Company, as the case may be, copies of the annual reports or
unaudited quarterly consolidated financial statements, as the case may be, and
the information, documents and other reports (or copies of such portions of any
of the foregoing as the SEC may be rules and regulations prescribe) which the
Company files with the SEC pursuant to Section 13 or 15(d) of the Exchange Act.
Upon qualification of this Indenture under the TIA, the Company shall also
comply with the provisions of TIA Section 314(a).
(b) At the Company's expense, regardless of whether the
Company is required to furnish such reports and other information referred to
in paragraph (a) above to its stockholders pursuant to the Exchange Act, the
Company shall cause such reports and other information to be mailed to the
Holders at their addresses appearing in the register of Notes maintained by the
Registrar within 100 days after the end of each fiscal year of the Company, or
within 50 days after the end of each of the first three fiscal quarters of each
fiscal year of the Company, as the case may be. Such reports shall be
delivered to the Registrar and the Registrar will mail them, at the Company's
expense, to the Holders at their addresses appearing in the register of Notes
maintained by the Registrar.
(c) The Company shall, upon request, provide to any
Holder of Notes or any prospective transferee of any such Holder any
information concerning the Company (including financial statements) necessary
in order to permit such Holder to sell or transfer Notes in compliance with
Rule 144A under the Securities Act; provided, however, that the Company shall
not be required to furnish such information in connection with any request made
on or after the date which is three years (or such other date as the Notes
shall be freely transferable pursuant to Rule 144) from the later of (i) the
date such Note (or any predecessor Note) was acquired from the Company or (ii)
the date such Note (or any predecessor Note) was last acquired from an
"affiliate" of the Company within the meaning of Rule 144 under the Securities
Act.
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Section 4.03. Waiver of Stay, Extension or Usury Laws.
The Company and the Guarantors covenant (to the extent that
they may lawfully do so) that they shall not at any time insist upon, or plead
(as a defense or otherwise) or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury law or other
law which would prohibit or forgive the Company and the Guarantors from paying
all or any portion of the principal of, premium, if any, and/or interest on the
Notes as contemplated herein, wherever enacted, now or at any time hereafter in
force, or which may affect the covenants or the performance of this Indenture;
and (to the extent that they may lawfully do so) the Company and the Guarantors
hereby expressly waive all benefit or advantage of any such law, and covenant
that they will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
Section 4.04. Compliance Certificate.
(a) The Company and the Guarantors shall deliver to the
Trustee, within 100 days after the end of each fiscal year and on or before 50
days after the end of the first, second and third quarters of each fiscal year,
an Officers' Certificate (one of the signers on behalf of each of the Company
and the Guarantors of which shall be the principal executive officer, principal
financial officer or principal accounting officer of the Company and such
Guarantors) stating that a review of the activities of the Company and its
Subsidiaries during such fiscal year or fiscal quarter, as the case may be, has
been made under the supervision of the signing Officers with a view to
determining whether the Company and the Guarantors have kept, observed,
performed and fulfilled their obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of
his or her knowledge, the Company and the Guarantors have kept, observed,
performed and fulfilled each and every covenant contained in this Indenture and
are not in default in the performance or observance of any of the terms,
provisions and conditions hereof (or, if a Default or Event of Default shall
have occurred, describing all such Defaults or Events of Default of which he or
she may have knowledge and what action they are taking or propose to take with
respect thereto) and that to the best of his or her knowledge no event has
occurred and remains in existence by reason of which payments on account of the
principal of or interest, if any, on the Notes is prohibited or if such event
has occurred, a
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description of the event and what action the Company and the Guarantors is
taking or propose to take with respect thereto.
(b) So long as the Trustee has not received an Officer's
Certificate stating that it would be contrary to the then current
recommendations of the American Institute of Certified Public Accountants, the
year-end financial statements delivered pursuant to Section 4.02 above shall be
accompanied by a written statement of the Company's independent public
accountants (who shall be a firm of established national reputation) that in
making the examination necessary for certification of such financial statements
nothing has come to their attention which would lead them to believe that the
Company or any Guarantor has violated any provisions of this Article 4 or
Article 5 of this Indenture or, if any such violation has occurred, specifying
the nature and period of existence thereof, it being understood that such
accountants shall not be liable directly or indirectly for any failure to
obtain knowledge of any such violation.
(c) The Company and the Guarantors shall, so long as any
of the Notes are outstanding, deliver to the Trustee, forthwith upon any
Officer becoming aware of any Default or Event of Default, an Officers'
Certificate specifying such Default or Event of Default and what action the
Company and the Guarantors are taking or propose to take with respect thereto.
(d) The Company's fiscal year currently ends on the
Friday closest to October 31 of each year. The Company will provide notice to
the Trustee of any change in its fiscal year.
Section 4.05. Taxes.
The Company and the Guarantors shall, and shall cause each of
their Subsidiaries to, pay prior to delinquency all material taxes,
assessments, and governmental levies except as contested in good faith and by
appropriate proceedings.
Section 4.06. Limitation on Additional Indebtedness.
The Company shall not, and shall not permit any Restricted
Subsidiary of the Company to, directly or indirectly, incur (as defined) any
Indebtedness (including Acquired Indebtedness) unless (a) after giving effect
to the incurrence of such Indebtedness and the receipt and application of the
proceeds thereof, the ratio of the Company's EBITDA to the Company's
Consolidated Interest Expense (determined on a pro forma basis for the last
four fiscal quarters of the Company for which
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financial statements are available at the date of determination (the "Specified
Period")) is greater than 2.0 to 1 and (b) no Default or Event of Default shall
have occurred and be continuing at the time or as a consequence of the
incurrence of such Indebtedness.
If, during the Specified Period or subsequent thereto and on
or prior to the date of determination, the Company or any of its Restricted
Subsidiaries shall have engaged in any Asset Sale or acquisition or shall have
designated any Restricted Subsidiary to be an Unrestricted Subsidiary or any
Unrestricted Subsidiary to be a Restricted Subsidiary, EBITDA and Consolidated
Interest Expense for the Specified Period shall be calculated on a pro forma
basis giving effect to such Asset Sale or acquisition or designation, as the
case may be, and the application of any proceeds therefrom as if such Asset
Sale or acquisition or designation had occurred on the first day of the
Specified Period.
If the Indebtedness which is the subject of a determination
under this provision is Acquired Indebtedness, or Indebtedness incurred in
connection with the simultaneous acquisition of any Person, business, property
or assets, or Indebtedness of an Unrestricted Subsidiary being designated as a
Restricted Subsidiary, then such ratio shall be determined by giving effect (on
a pro forma basis, as if the transaction had occurred at the beginning of the
Specified Period) to both the incurrence or assumption of such Acquired
Indebtedness or such other Indebtedness by the Company or any of its Restricted
Subsidiaries and the inclusion in EBITDA of the EBITDA of the acquired Person,
business, Property or assets or redesignated Subsidiary.
If any Indebtedness outstanding or to be incurred (x) bears a
floating rate of interest, the interest expense on such Indebtedness shall be
calculated as if the rate in effect on the date of determination had been the
applicable rate for the entire Specified Period (taking into account on a pro
forma basis any Interest Rate Agreement applicable to such Indebtedness if such
Interest Rate Agreement has a remaining term as at the date of determination in
excess of 12 months), (y) bears, at the option of the Company or a Restricted
Subsidiary, a fixed or floating rate of interest, the interest expense on such
Indebtedness shall be computed by applying, at the option of the Company or
such Restricted Subsidiary, either a fixed or floating rate and (z) was
incurred under a revolving credit facility, the interest expense on such
Indebtedness shall be computed based upon the average daily balance of such
Indebtedness during the applicable
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period. For purposes of this covenant, EBITDA for the fiscal quarter ended
January 31, 1997 shall be deemed to be $ 5,002,000, for the fiscal quarter
ended October 31, 1996 shall be deemed to be ($924,000), for the fiscal quarter
ended July 31, 1996 shall be deemed to be ($3,344,000) and for the fiscal
quarter ended April 30, 1996 shall be deemed to be $15,156,000. Consolidated
Interest Expense for each of the four fiscal quarters in the year ended January
31, 1997 shall be deemed to be $3,682,750.
Notwithstanding any restrictions set forth in this Section
4.06, the Company and its Restricted Subsidiaries may incur Permitted
Indebtedness.
Section 4.07. Limitation on Preferred Stock of Restricted Subsidiaries.
The Company shall not permit any Restricted Subsidiary to
issue any Preferred Stock (except Preferred Stock to the Company or a
Restricted Subsidiary) or permit any Person (other than the Company or a
Restricted Subsidiary) to hold any such Preferred Stock unless the Company or
such Restricted Subsidiary would be entitled to incur or assume Indebtedness
under the first paragraph of Section 4.06 in an aggregate principal amount
equal to the aggregate liquidation value of the Preferred Stock to be issued;
provided that this Section 4.07 shall not apply to Preferred Stock of a
Restricted Subsidiary outstanding on the Issue Date.
Section 4.08. Limitation on Capital Stock of Restricted Subsidiaries.
The Company shall not (i) sell, pledge, hypothecate or
otherwise convey or dispose of any Capital Stock of a Restricted Subsidiary
(other than under the Senior Credit Facility or a successor facility) or (ii)
permit any of its Restricted Subsidiaries to issue any Capital Stock, other
than to the Company or a Wholly-Owned Subsidiary of the Company. The foregoing
restrictions shall not apply to an Asset Sale made in compliance with Section
4.10 hereof or the issuance of Preferred Stock in compliance with Section 4.07
hereof.
Section 4.09. Limitation on Restricted Payments.
The Company shall not make, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, make, any Restricted
Payment, unless:
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(a) no Default or Event of Default shall have occurred
and be continuing at the time of or immediately after giving effect to
such Restricted Payment;
(b) immediately after giving pro forma effect to such
Restricted Payment, the Company could incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) under Section 4.06
hereof; and
(c) immediately after giving effect to such Restricted
Payment, the aggregate of all Restricted Payments declared or made
after the Issue Date does not exceed the sum of (1) an amount equal to
the excess of (x) cumulative Adjusted EBITDA of the Company subsequent
to the Issue Date less (y) 1.75 times cumulative Consolidated Interest
Expense of the Company subsequent to the Issue Date, plus (2) 100% of
the aggregate Net Proceeds and the fair market value of securities or
other property received by the Company from the issue or sale, after
the Issue Date, of Capital Stock (other than Disqualified Capital
Stock or Capital Stock of the Company issued to any Subsidiary of the
Company) of the Company or any Indebtedness or other securities of the
Company convertible into or exercisable or exchangeable for Capital
Stock (other than Disqualified Capital Stock) of the Company which has
been so converted or exercised or exchanged, as the case may be, plus
(3) 100% of the capital contributions made by the Parent to the
Company after the Issue Date (other than capital contributions which
constitute Indebtedness), plus (4) in the case of the disposition or
repayment of any Investment constituting a Restricted Payment made
after the Issue Date, an amount equal to the lesser of the cash return
of capital with respect to such Investment and the initial amount of
such Investment, in either case, less the cost of disposition of such
Investment, plus (5) $3,500,000. For purposes of determining under
this clause (c) the amount expended for Restricted Payments, cash
distributed shall be valued at the face amount thereof and property
other than cash shall be valued at its fair market value.
The provisions of this Section 4.09 shall not prohibit: (i)
the payment of any distribution within 60 days after the date of declaration
thereof, if at such date of declaration such payment would comply with the
provisions of this Indenture; (ii) the retirement of any shares of Capital
Stock of the Company or subordinated Indebtedness by conversion into, or by or
in exchange for, shares of Capital Stock (other than Disqualified Capital
Stock), or out of, the Net Proceeds of the substantially
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concurrent sale (other than to a Subsidiary of the Company) of other shares of
Capital Stock of the Company (other than Disqualified Capital Stock); (iii) the
redemption or retirement of Indebtedness of the Company subordinated to the
Notes in exchange for, by conversion into, or out of the Net Proceeds of, a
substantially concurrent sale or incurrence of Indebtedness (other than any
Indebtedness owed to a Subsidiary) of the Company that is contractually
subordinated in right of payment to the Notes to at least the same extent as
the subordinated Indebtedness being redeemed or retired; (iv) the retirement of
any shares of Disqualified Capital Stock by conversion into, or by exchange
for, shares of Disqualified Capital Stock, or out of the Net Proceeds of the
substantially concurrent sale (other than to a Subsidiary of the Company) of
other shares of Disqualified Capital Stock; (v) the payment by the Company of
cash dividends to the Parent for the purpose of paying, so long as all proceeds
thereof are promptly used by the Parent to pay, franchise taxes and federal,
state and local income taxes and interest and penalties with respect thereto,
if any, payable by the Parent, provided that any refund shall be promptly
returned by the Parent to the Company; (vi) payments to employees (other than
Xxxxxx X. Xxxxxxx, Xx. and Xxxxxxx X. Xxxxx) for repurchases of Capital Stock;
provided, however, that the amount of all such payments under this clause (vi)
does not exceed $500,000 during any twelve-month period and provided, further,
that with respect to this clause (vi), no Default or Event of Default shall
have occurred and be continuing at the time of any such payment or will occur
immediately after giving effect to any such payment; and provided, further,
that, in determining the aggregate amount of all Restricted Payments made
subsequent to the Issue Date, all payments made pursuant to this clause (vi)
shall be included, (vii) deposits and loans, not to exceed $3,000,000 at any
time outstanding, made in connection with acquisition agreements; provided,
however, that if an acquisition is not consummated within 180 days after the
deposit or loan is made with respect to such acquisition, in determining the
aggregate amount of all Restricted Payments made subsequent to the Issue Date,
such deposit or loan shall be included, or (viii) contingent payments made in
accordance with the terms of the Purchase Agreement dated as of February 11,
1997 relating to the acquisition of the capital stock of Grand Targhee
Incorporated.
Not later than the date of making any Restricted Payment, the
Company shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by this Section 4.09 were computed, which calculations
may be based upon the Company's latest available financial statements, and
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that no Default or Event of Default exists and is continuing and no Default or
Event of Default will occur immediately after giving effect to any Restricted
Payments.
Section 4.10. Limitation on Certain Asset Sales.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company or
such Restricted Subsidiary, as the case may be, receives consideration at the
time of such sale or other disposition at least equal to the fair market value
thereof (as determined in good faith by the Board of Directors of the Company,
and evidenced by a Board Resolution); (ii) not less than 85% of the
consideration received by the Company or its Subsidiaries, as the case may be,
is in the form of cash or Temporary Cash Investments; and (iii) the Asset Sale
Proceeds received by the Company or such Restricted Subsidiary are applied (a)
first, to the extent the Company elects, or is required, to prepay, repay or
purchase debt of the Company or any Restricted Subsidiary under the Senior
Credit Facility within 180 days following the receipt of the Asset Sale
Proceeds from any Asset Sale; provided that any such repayment shall result in
a permanent reduction of the commitments thereunder in an amount equal to the
principal amount so repaid; (b) second, to the extent of the balance of Asset
Sale Proceeds after application as described above, to the extent the Company
elects, to an investment in the existing businesses of the Company and its
Restricted Subsidiaries or in assets (including Capital Stock or other
securities purchased in connection with the acquisition of Capital Stock or
property of another Person) used or useful in businesses similar or ancillary
to the business of the Company or such Restricted Subsidiary as conducted at
the time of such Asset Sale, provided that such investment occurs or the
Company or a Restricted Subsidiary enters into contractual commitments to make
such investment, subject only to customary conditions (other than the obtaining
of financing), on or prior to the 181st day following receipt of such Asset
Sale Proceeds (the "Reinvestment Date") and Asset Sale Proceeds contractually
committed are so applied within 270 days following the receipt of such Asset
Sale Proceeds; and (c) third, if, on the Reinvestment Date with respect to any
Asset Sale, the Available Asset Sale Proceeds exceed $5,000,000, the Company
shall apply an amount equal to such Available Asset Sale Proceeds to an offer
to repurchase the Notes, at a purchase price in cash equal to 100% of the
principal amount thereof plus accrued and unpaid interest, if any, to the date
of repurchase (an "Excess Proceeds Offer"). If an Excess Proceeds Offer is not
fully subscribed, the Company may retain
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the portion of the Available Asset Sale Proceeds not required to repurchase
Notes.
If the Company is required to make an Excess Proceeds
Offer, the Company shall mail, within 30 days following the Reinvestment Date,
a notice to the Holders stating, among other things: (1) that such Holders
have the right to require the Company to apply the Available Asset Sale
Proceeds to repurchase such Notes at a purchase price in cash equal to 100% of
the principal amount thereof plus accrued and unpaid interest, if any, to the
date of purchase; (2) the purchase date (the "Purchase Date"), which shall be
no earlier than 30 days and not later than 60 days from the date such notice is
mailed; (3) the instructions, determined by the Company, that each Holder must
follow in order to have such Notes repurchased; and (4) the calculations used
in determining the amount of Available Asset Sale Proceeds to be applied to the
repurchase of such Notes. The Excess Proceeds Offer shall remain open for a
period of 20 Business Days following its commencement (the "Offer Period").
The notice, which shall govern the terms of the Excess Proceeds Offer, shall
state:
(1) that the Excess Proceeds Offer is being made pursuant
to this Section 4.10 and the length of time the Excess Proceeds Offer
will remain open;
(2) the purchase price and the Purchase Date;
(3) that any Note not tendered or accepted for payment
will continue to accrue interest;
(4) that any Note accepted for payment pursuant to the
Excess Proceeds Offer shall cease to accrue interest on and after the
Purchase Date and the deposit of the purchase price with the Trustee;
(5) that Holders electing to have a Note purchased
pursuant to any Excess Proceeds Offer will be required to surrender
the Note, with the form entitled "Option of Holder to Elect Purchase"
on the reverse of the Note completed, to the Company, a depositary, if
appointed by the Company, or a Paying Agent at the address specified
in the notice prior to the close of business on the Business Day
preceding the Purchase Date;
(6) that Holders will be entitled to withdraw their
election if the Company, depositary or Paying Agent, as the case may
be, receives, not later than the expiration of the
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Offer Period, a facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Note the Holder
delivered for purchase and a statement that such Holder is withdrawing
his election to have the Note purchased;
(7) that, if the aggregate principal amount of Notes
surrendered by Holders exceeds the Available Asset Sale Proceeds, the
Company shall select the Notes to be purchased on a pro rata basis
(with such adjustments as may be deemed appropriate by the Company so
that only Notes in denominations of $1,000, or integral multiples
thereof, shall be purchased); and
(8) that Holders whose Notes were purchased only in part
will be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered.
On or before the Purchase Date, the Company shall, to the
extent lawful, accept for payment, on a pro rata basis to the extent necessary,
Notes or portions thereof tendered pursuant to the Excess Proceeds Offer,
deposit with the Paying Agent U.S. legal tender sufficient to pay the purchase
price plus accrued interest, if any, on the Notes to be purchased and deliver
to the Trustee an Officers' Certificate stating that such Notes or portions
thereof were accepted for payment by the Company in accordance with the terms
of this Section 4.10. The Paying Agent shall promptly (but in any case not
later than 5 days after the Purchase Date) mail or deliver to each tendering
Holder an amount equal to the purchase price of the Note tendered by such
Holder and accepted by the Company for purchase, and the Company shall promptly
issue a new Note, the Guarantors shall endorse the guarantee thereon and the
Trustee shall authenticate and mail or make available for delivery such new
Note to such Holder equal in principal amount to any unpurchased portion of the
Note surrendered. Any Note not so accepted shall be promptly mailed or
delivered by the Company to the Holder thereof. The Company will publicly
announce the results of the Excess Proceeds Offer on the Purchase Date by
sending a press release to the Dow Xxxxx News Service or similar business news
service in the United States. If an Excess Proceeds Offer is not fully
subscribed, the Company may retain that portion of the Available Asset Sale
Proceeds not required to repurchase Notes.
Notwithstanding any restrictions set forth in this Section
4.10, (i) the Company and its Subsidiaries may sell real property constituting
residential or commercial development parcels, and timber provided that (x) the
aggregate fair market
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value of all such property sold in any period of 365 consecutive days does not
exceed $5,000,000 and (y) at the time of such sale and after giving effect
thereto, no Default or Event of Default shall exist, and (ii) Ski Lifts, Inc.
(or any successor company) may sell and transfer real property pursuant to the
Real Estate Option.
Section 4.11. Limitation on Transactions with Affiliates.
(a) The Company shall not, and shall not permit any of
its Restricted Subsidiaries to, directly or indirectly, enter into or suffer to
exist any transaction or series of related transactions (including, without
limitation, the sale, purchase, exchange or lease of assets, property or
services) with any Affiliate (including entities in which the Company or any of
its Restricted Subsidiaries own a minority interest) or holder of 10% or more
of the Company's Common Stock (an "Affiliate Transaction"), or extend, renew,
waive or otherwise modify the terms of any Affiliate Transaction entered into
prior to the Issue Date unless (i) such Affiliate Transaction is between or
among the Company and its Wholly-Owned Subsidiaries or (ii) the terms of such
Affiliate Transaction are fair and reasonable to the Company or such Restricted
Subsidiary, as the case may be, and the terms of such Affiliate Transaction are
at least as favorable as the terms which could be obtained by the Company or
such Restricted Subsidiary, as the case may be, in a comparable transaction
made on an arm's-length basis between unaffiliated parties. In any Affiliate
Transaction involving an amount or having a value in excess of $1 million which
is not permitted under clause (i) above, the Company must obtain a resolution
of the Board of Directors certifying that such Affiliate Transaction complies
with clause (ii) above. In transactions with a value in excess of $3 million
which are not permitted under clause (i) above, the Company must obtain a
written opinion as to the fairness of such a transaction from an independent
investment banking firm or a firm experienced in the subject matter of the
Affiliate Transaction in question.
(b) The foregoing provisions shall not apply to (i) any
Restricted Payment that is not prohibited by Section 4.09 hereof, (ii) any
transaction, approved by the Board of Directors of the Company, with an officer
or director of the Company or of any Subsidiary in his or her capacity as
officer or director entered into in the ordinary course of business, including
compensation and employee benefit arrangements with any officer or director of
the Company or any of its Subsidiaries, (iii) capital contributions made by the
Parent to the Company or made by the Company and its Subsidiaries to
Subsidiaries of the
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Company or (iv) if no Default or Event of Default has occurred and is
continuing, payments by the Company pursuant to the Xxxxxxx Management
Agreement for the services specified in the Xxxxxxx Management Agreement as in
effect on the Issue Date in an amount not to exceed $350,000 in any fiscal
year.
Section 4.12. Limitations on Liens.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, create, incur or otherwise cause or suffer to exist
or become effective any Liens of any kind (other than Permitted Liens) upon any
property or asset of the Company or any Restricted Subsidiary or any shares of
stock or debt of any Restricted Subsidiary which owns property or assets, now
owned or hereafter acquired, unless (i) if such Lien secures Indebtedness which
is pari passu with the Notes, then the Notes are secured on an equal and
ratable basis with the obligations so secured until such time as such
obligation is no longer secured by a Lien or (ii) if such Lien secures
Indebtedness which is subordinated to the Notes, any such Lien shall be
subordinated to the Lien granted to the Holders of the Notes to the same extent
as such subordinated Indebtedness is subordinated to the Notes.
Section 4.13. Limitations on Investments.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, make any Investment other than (i) a Permitted
Investment or (ii) an Investment that is made as a Restricted Payment in
compliance with Section 4.09 hereof, after the Issue Date.
Section 4.14. Limitation on Creation of Subsidiaries.
The Company shall not create or acquire, nor permit any of its
Restricted Subsidiaries to create or acquire, any Subsidiary other than (i) a
Restricted Subsidiary existing as of the date of this Indenture, (ii) a
Restricted Subsidiary created after the date of this Indenture to hold assets
or conduct businesses previously held or conducted by the Company or any of its
other Subsidiaries or that is acquired or created after the date of this
Indenture in connection with the acquisition by the Company of a ski resort
related business or asset, or (iii) an Unrestricted Subsidiary; provided,
however, that each Restricted Subsidiary acquired or created pursuant to clause
(ii) shall at the time it has either assets or stockholder's equity in excess
of $20,000 execute a guarantee, substantially in the form attached as Exhibit G
to this Indenture and with such documentation relating thereto as the Trustee
shall require,
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including, without limitation a supplement or amendment to this Indenture and
Opinions of Counsel as to the enforceability of such guarantee, pursuant to
which such Restricted Subsidiary shall become a Guarantor.
Section 4.15. Limitation on Sale and Lease-Back Transactions.
The Company shall not, and shall not permit any Restricted
Subsidiary to, enter into any Sale and Lease-Back Transaction unless (i) the
consideration received in such Sale and Lease-Back Transaction is at least
equal to the fair market value of the property sold, as determined, in good
faith, by the Board of Directors of the Company and (ii) the Company could
incur the Attributable Indebtedness in respect of such Sale and Lease-Back
Transaction in compliance with Section 4.06.
Section 4.16. Limitation on Dividend and Other Payment Restrictions
Affecting Subsidiaries.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause
or suffer to exist or become effective any encumbrance or restriction on the
ability of any Restricted Subsidiary to (a)(i) pay dividends or make any other
distributions to the Company or any of its Restricted Subsidiaries (A) on its
Capital Stock or (B) with respect to any other interest or participation in, or
measured by, its profits, or (ii) pay any Indebtedness owed to the Company or
any of its Restricted Subsidiaries, (b) make loans or advances or capital
contributions to the Company or any of its Restricted Subsidiaries or (c)
transfer any of its properties or assets to the Company or any of its
Restricted Subsidiaries, except for such encumbrances or restrictions existing
under or by reason of (i) encumbrances or restrictions existing on the Issue
Date or under the Senior Credit Facility, (ii) the Indenture, the Notes and the
Guarantees, (iii) applicable law, (iv) any instrument governing Indebtedness or
Capital Stock of a Person acquired by the Company or any of its Restricted
Subsidiaries or of any Person that becomes a Restricted Subsidiary as in effect
at the time of such acquisition or such Person becoming a Restricted Subsidiary
(except to the extent such Indebtedness was incurred in connection with or in
contemplation of such acquisition of such Person becoming a Restricted
Subsidiary), which encumbrance or restriction is not applicable to any Person,
or the properties or assets of any Person, other than the Person, or the
property or assets of the Person (including any Subsidiary of the Person), so
acquired, provided that the EBITDA of such Person is not taken into account (to
the extent of such restriction) in determining
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whether any financing or Restricted Payment in connection with such acquisition
was permitted by the terms of the Indenture, (v) customary non-assignment
provisions in leases or other agreements entered into in the ordinary course of
business and consistent with past practices, (vi) Refinancing Indebtedness;
provided that such restrictions are in the aggregate no more restrictive than
those contained in the agreements governing the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded, (viii) customary
restrictions in security agreements or mortgages securing Indebtedness of the
Company or a Restricted Subsidiary to the extent such restrictions restrict the
transfer of the property subject to such security agreements and mortgages,
(ix) customary net worth provisions contained in leases and other agreements
entered into by a Restricted Subsidiary in the ordinary course of business or
(x) customary restrictions with respect to a Restricted Subsidiary pursuant to
an agreement that has been entered into for the sale or disposition of all or
substantially all of the Capital Stock or assets of such Restricted Subsidiary.
Section 4.17. Payments for Consent.
Neither the Company nor any of the Guarantors shall, directly
or indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder of any Notes for or as an inducement
to any consent, waiver or amendment of any of the terms or provisions of this
Indenture or the Notes unless such consideration is offered to be paid or
agreed to be paid to all Holders of the Notes which so consent, waive or agree
to amend in the time frame set forth in solicitation documents relating to such
consent, waiver or agreement.
Section 4.18. Legal Existence.
Subject to Article 5 hereof, the Company shall do or cause to
be done all things necessary to preserve and keep in full force and effect (i)
its legal existence, and the corporate, partnership or other existence of each
Restricted Subsidiary, in accordance with the respective organizational
documents (as the same may be amended from time to time) of each Restricted
Subsidiary and the rights (charter and statutory), licenses and franchises of
the Company and its Restricted Subsidiaries; provided, however, that the
Company shall not be required to preserve any such right, license or franchise,
or the corporate, partnership or other existence of any of its Restricted
Subsidiaries if the Board of Directors of the Company shall determine that the
preservation thereof is no longer desirable in
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the conduct of the business of the Company and its Restricted Subsidiaries,
taken as a whole, and that the loss thereof is not adverse in any material
respect to the Holders.
Section 4.19. Change of Control.
(a) Within 20 days of the occurrence of a Change of
Control, the Company shall notify the Trustee in writing of such occurrence and
shall make an offer to purchase (the "Change of Control Offer") the outstanding
Notes at a purchase price equal to 101% of the principal amount thereof plus
any accrued and unpaid interest thereon to the Change of Control Payment Date
(as hereinafter defined) (such applicable purchase price being hereinafter
referred to as the "Change of Control Purchase Price") in accordance with the
procedures set forth below.
If the Senior Credit Facility is in effect, or any amounts are
owing thereunder, at the time of the occurrence of a Change of Control, prior
to the mailing of the notice to Holders described in paragraph (b) below, but
in any event within 30 days following any Change of Control, the Company on a
joint and several basis covenant to (i) repay in full all obligations under the
Senior Credit Facility or offer to repay in full all obligations under or in
respect of the Senior Credit Facility and repay the obligations under or in
respect of the Senior Credit Facility of each lender who has accepted such
offer or (ii) obtain the requisite consent under the Senior Credit Facility to
permit the repurchase of the Notes pursuant to this Section 4.19. The Company
must first comply with the covenant described in the preceding sentence before
they shall be required to purchase Notes in the event of a Change of Control;
provided that the Company's failure to comply with the covenant described in
the preceding sentence constitutes an Event of Default described in clause (3)
under Section 6.01 hereof if not cured within 30 days after the notice required
by such clause.
(b) Within 20 days of the occurrence of a Change of
Control, the Company also shall (i) cause a notice of the Change of Control
Offer to be sent at least once to the Dow Xxxxx News Service or similar
business news service in the United States and (ii) send by first-class mail,
postage prepaid, to the Trustee and to each Holder of the Notes, at the address
appearing in the register maintained by the Registrar of the Notes, a notice
stating:
(1) that the Change of Control Offer is being made
pursuant to this Section 4.19 and that all Notes tendered
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will be accepted for payment, and otherwise subject to the terms and
conditions set forth herein;
(2) the Change of Control Purchase Price and the purchase
date (which shall be a Business Day no earlier than 20 Business Days
from the date such notice is mailed (the "Change of Control Payment
Date"));
(3) that any Note not tendered will continue to accrue
interest;
(4) that, unless the Company defaults in the payment of
the Change of Control Purchase Price, any Notes accepted for payment
pursuant to the Change of Control Offer shall cease to accrue interest
after the Change of Control Payment Date;
(5) that Holders accepting the offer to have their Notes
purchased pursuant to a Change of Control Offer will be required to
surrender the Notes, with the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Note completed, to a depository, if
appointed, or the Paying Agent at the address specified in the notice
prior to the close of business on the Business Day preceding the
Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their
acceptance if the depository or Paying Agent receives, not later than
the close of business on the third Business Day preceding the Change
of Control Payment Date, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of
the Notes delivered for purchase, and a statement that such Holder is
withdrawing his election to have such Notes purchased;
(7) that Holders whose Notes are being purchased only in
part will be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered, provided that each Note
purchased and each such new Note issued shall be in an original
principal amount in denominations of $1,000 and integral multiples
thereof;
(8) any other procedures that a Holder must follow to
accept a Change of Control Offer or effect withdrawal of such
acceptance; and
(9) the name and address of the depository or Paying
Agent.
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On the Change of Control Payment Date, the Company shall, to
the extent lawful, (i) accept for payment Notes or portions thereof tendered
pursuant to the Change of Control Offer, (ii) deposit with the depository or
Paying Agent money sufficient to pay the purchase price of all Notes or
portions thereof so tendered and (iii) deliver or cause to be delivered to the
Trustee Notes so accepted together with an Officers' Certificate stating the
Notes or portions thereof tendered to the Company. The Paying Agent shall
promptly mail to each Holder of Notes so accepted payment in an amount equal to
the purchase price for such Notes, and the Company shall execute and issue, and
the Trustee shall promptly authenticate and mail to such Holder, a new Note
equal in principal amount to any unpurchased portion of the Notes surrendered;
provided that each such new Note shall be issued in an original principal
amount in denominations of $1,000 and integral multiples thereof.
(c) (A) If either Company or any Subsidiary thereof
has issued any outstanding (i) Indebtedness that is subordinated in right of
payment to the Notes or (ii) Preferred Stock, and the Company or such
Subsidiary is required to repurchase or redeem, or make an offer to repurchase
or redeem, such Indebtedness or Preferred Stock, in the event of a Change of
Control or to make a distribution with respect to such subordinated
Indebtedness or Preferred Stock in the event of a Change of Control, the
Company shall not consummate any such redemption, repurchase offer or
distribution with respect to such subordinated Indebtedness or Preferred Stock
until such time as the Company shall have paid the Change of Control Purchase
Price in full to the Holders of Notes that have accepted the Company's Change
of Control Offer and shall otherwise have consummated the Change of Control
Offer made to Holders of the Notes and (B) the Company will not issue
Indebtedness that is subordinated in right of payment to the Notes or Preferred
Stock with change of control provisions requiring the payment of such
Indebtedness or Preferred Stock prior to the payment of the Notes in the event
of a Change in Control under this Indenture.
In the event that a Change of Control occurs and the Holders
of Notes exercise their right to require the Company to purchase Notes, if such
purchase constitutes a "tender offer" for purposes of Rule 14e-1 under the
Exchange Act at that time, the Company will comply with the requirements of
Rule 14e-1 as then in effect with respect to such repurchase.
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Section 4.20. Maintenance of Properties; Insurance; Books and Records;
Compliance with Law.
(a) The Company shall, and shall cause each of its
Restricted Subsidiaries to, at all times cause all properties used or useful in
the conduct of their business to be maintained and kept in good condition,
repair and working order (reasonable wear and tear excepted) and supplied with
all necessary equipment, and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereto.
(b) The Company shall, and shall cause each of its
Restricted Subsidiaries to, maintain insurance in such amounts and covering
such risks as are usually and customarily carried with respect to similar
facilities according to their respective locations.
(c) The Company shall, and shall cause each of its
Subsidiaries to, keep proper books of record and account, in which full and
correct entries shall be made of all financial transactions and the assets and
business of the Company and each Subsidiary of the Company, in accordance with
GAAP consistently applied to the Company and its Subsidiaries taken as a whole.
(d) The Company shall, and shall cause each of its
Subsidiaries to, comply with all statutes, laws, ordinances or government rules
and regulations to which they are subject, non-compliance with which would
materially adversely affect the business, prospects, earnings, properties,
assets or financial condition of the Company and their Subsidiaries taken as a
whole.
Section 4.21. Further Assurance to the Trustee.
The Company shall, upon the reasonable request of the Trustee,
execute and deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the provisions of
this Indenture.
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ARTICLE 5
SUCCESSOR CORPORATION
Section 5.01. Limitation on Consolidation, Merger and Sale of Assets.
(a) The Company shall not, nor shall it permit any
Guarantor to, consolidate with, merge with or into, or transfer all or
substantially all of its assets (as an entirety or substantially as an entirety
in one transaction or a series of related transactions), to any Person unless
(in the case of the Company or any Guarantor): (i) the Company or such
Guarantor, as the case may be, shall be the continuing Person, or the Person
(if other than the Company or such Guarantor) formed by such consolidation or
into which the Company or such Guarantor, as the case may be, is merged or to
which the properties and assets of the Company or such Guarantor, as the case
may be, are transferred shall be a corporation organized and existing under the
laws of the United States or any State thereof or the District of Columbia and
shall expressly assume, by a supplemental indenture, executed and delivered to
the Trustee, in form and substance satisfactory to the Trustee, all of the
obligations of the Company or the Guarantor, as the case may be, under the
Notes and this Indenture, and the obligations under this Indenture shall remain
in full force and effect; (ii) immediately before and immediately after giving
effect to such transaction, no Default or Event of Default shall have occurred
and be continuing; (iii) immediately after giving effect to such transaction or
series of transactions on a pro forma basis the Consolidated Net Worth of the
Company or the surviving entity as the case may be is at least equal to the
Consolidated Net Worth of the Company immediately before such transaction or
series of transactions; and (iv) immediately after giving effect to such
transaction on a pro forma basis the Company or the Surviving Person could
incur at least $1.00 of additional Indebtedness (other than Permitted
Indebtedness) pursuant to Section 4.06 hereof, provided that a Person that is a
Guarantor may consolidate with, merge into or transfer all or substantially all
of its assets to the Company or another Person that is a Guarantor without
complying with this clause (iv).
(b) In connection with any consolidation, merger or
transfer of assets contemplated by this Section 5.01, the Company shall
deliver, or cause to be delivered, to the Trustee, in form and substance
reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion
of Counsel, each stating
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that such consolidation, merger or transfer and the supplemental indenture in
respect thereto, if any, comply with this Section 5.01 and that all conditions
precedent herein provided for relating to such transaction or transactions have
been complied with.
Section 5.02. Successor Person Substituted.
Upon any consolidation or merger, or any transfer of all or
substantially all of the assets of the Company or any Guarantor in accordance
with Section 5.01 above, the successor corporation formed by such consolidation
or into which the Company is merged or to which such transfer is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company or such Guarantor under this Indenture with the same effect as if
such successor corporation had been named as the Company or such Guarantor
herein, and thereafter the predecessor corporation shall be relieved of all
obligations and covenants under this Indenture and the Notes.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
An "Event of Default" occurs if
(1) there is a default in the payment of any principal
of, or premium, if any, on the Notes when the same becomes due and
payable at maturity, upon acceleration, redemption or otherwise;
(2) there is a default in the payment of any interest on
any Note when the same becomes due and payable and the Default
continues for a period of 30 days;
(3) either the Company or any Guarantor defaults in the
observance or performance of any other covenant in the Notes or this
Indenture for 30 days after written notice from the Trustee or the
Holders of not less than 25% in the aggregate principal amount of the
Notes then outstanding;
(4) there is a default in the payment when due of
principal, interest or premium in an aggregate amount of $5,000,000 or
more with respect to any Indebtedness of the
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Company or any Restricted Subsidiary thereof (other than Indebtedness
owed to the Company or any Subsidiary of the Company), or there is an
acceleration of any such Indebtedness aggregating $5,000,000 or more,
which default shall not be cured, waived or postponed pursuant to an
agreement with the holders of such Indebtedness within 60 days after
written notice of such default to the Company by the Trustee or to the
Company and the Trustee by any Holder, or which acceleration shall not
be rescinded or annulled within 20 days after written notice of such
Default to the Company by the Trustee or to the Company and the
Trustee by any Holder;
(5) the entry of a final judgment or judgments which can
no longer be appealed for the payment of money in excess of $5,000,000
(which are not paid or covered by third party insurance by financially
sound insurers that have not disclaimed coverage) against the Company
or any Restricted Subsidiary thereof and such judgment remains
undischarged, for a period of 60 consecutive days during which a stay
of enforcement of such judgment shall not be in effect;
(6) the Company or any Significant Restricted Subsidiary
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,
(D) makes a general assignment for the benefit of
its creditors, or
(E) generally is not paying its debts as they
become due; or
(7) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against either of the Company
or any Restricted Subsidiary in an involuntary case,
(B) appoints a Custodian of either of the Company
or any Restricted Subsidiary or for all or
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substantially all of the property of either of the Company or
any Restricted Subsidiary, or
(C) orders the liquidation of either of the
Company or any Restricted Subsidiary,
and the order or decree remains unstayed and in effect for 60 days.
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.
Subject to Sections 7.01 and 7.02, the Trustee shall not be
charged with knowledge of any Default, Event of Default, Change of Control or
Asset Sale or the requirement for payment of Additional Interest unless written
notice thereof shall have been given to a Responsible Officer at the Corporate
Trust Office of the Trustee by the Company or any other Person.
Section 6.02. Acceleration.
If an Event of Default (other than an Event of Default arising
under Section 6.01(6) or (7) with respect to the Company) occurs and is
continuing, the Trustee by notice to the Company, or the Holders of not less
than 25% in aggregate principal amount of the Notes then outstanding may by
written notice to the Company and the Trustee declare to be immediately due and
payable the entire principal amount of all the Notes then outstanding plus
accrued but unpaid interest to the date of acceleration and (i) such amounts
shall become immediately due and payable or (ii) if there are any amounts
outstanding under or in respect of the Senior Credit Facility, such amounts
shall become due and payable upon the first to occur of an acceleration of
amounts outstanding under or in respect of the Senior Credit Facility or five
Business Days after receipt by the Company and the representative of the
holders of Indebtedness under or in respect of the Senior Credit Facility, of
notice of the acceleration of the Notes; provided, however, that after such
acceleration but before a judgment or decree based on such acceleration is
obtained by the Trustee, the Holders of a majority in aggregate principal
amount of the outstanding Notes may rescind and annul such acceleration and its
consequences if all existing Events of Default, other than the nonpayment of
accelerated principal, premium, if any, or interest that has become due solely
because of the acceleration, have been cured or waived and if the rescission
would not conflict with any judgment or decree. No
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such rescission shall affect any subsequent Default or impair any right
consequent thereto. In case an Event of Default specified in Section 6.01(6)
or (7) with respect to the Company occurs, such principal, premium, if any, and
interest amount with respect to all of the Notes shall be due and payable
immediately without any declaration or other act on the part of the Trustee or
the Holders of the Notes.
Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy by proceeding at law or in equity to collect
the payment of principal of, or premium, if any, and interest on the Notes or
to enforce the performance of any provision of the Notes or this Indenture and
may take any necessary action requested of it as Trustee to settle, compromise
, adjust or otherwise conclude any proceedings to which it is a party.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Noteholder 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 and Events of Default.
Subject to Sections 6.02, 6.08 and 8.02 hereof, the Holders of
a majority in principal amount of the Notes then outstanding have the right to
waive any existing Default or Event of Default or compliance with any provision
of this Indenture or the Notes. Upon any such waiver, such Default shall cease
to exist, and any Event of Default arising therefrom shall be deemed to have
been cured for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right
consequent thereto.
Section 6.05. Control by Majority.
The Holders of a majority in principal amount of the Notes
then outstanding may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee by this Indenture. The Trustee, however, may
refuse to follow any direction that conflicts with law or this Indenture or
that the
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Trustee determines may be unduly prejudicial to the rights of another
Noteholder not taking part in such direction, and the Trustee shall have the
right to decline to follow any such direction if the Trustee, being advised by
counsel, determines that the action so directed may not lawfully be taken or if
the Trustee in good faith shall, by a Responsible Officer, determine that the
proceedings so directed may involve it in personal liability; provided that the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
Section 6.06. Limitation on Suits.
Subject to Section 6.08 below, a Noteholder may not institute
any proceeding or pursue any remedy with respect to this Indenture or the Notes
unless:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(2) the Holders of at least 25% in aggregate principal
amount of the Notes then outstanding make a written request to the
Trustee to pursue the remedy;
(3) such Holder or Holders offer and if requested provide
to the Trustee indemnity reasonably satisfactory to the Trustee
against any loss, liability or expense;
(4) the Trustee does not comply with the request within
60 days after receipt of the request and the offer, and, if requested,
provision of, indemnity; and
(5) no direction inconsistent with such written request
has been given to the Trustee during such 60 day period by the Holders
of a majority in aggregate principal amount of the Notes then
outstanding.
A Noteholder may not use this Indenture to prejudice the
rights of another Noteholder or to obtain a preference or priority over another
Noteholder.
Section 6.07. No Personal Liability of Directors, Officers, Employees and
Stockholders.
No director, officer, employee, incorporator or stockholder of
the Company or any Guarantor shall have any liability for any obligations of
the Company or the Guarantors under the Notes, the Guarantees or this Indenture
or for a claim
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based on, in respect of, or by reason of such obligations or their creation.
Each Holder of the Notes by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for issuance
of the Notes.
Section 6.08. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Note to receive payment of principal of, or premium,
if any, and interest of the Note (including Additional Interest) on or after
the respective due dates expressed in the Note, or to bring suit for the
enforcement of any such payment on or after such respective dates, is absolute
and unconditional and shall not be impaired or affected without the consent of
the Holder.
Section 6.09. Collection Suit by Trustee.
If an Event of Default in payment of principal, premium or
interest specified in Section 6.01(1) or (2) hereof occurs and is continuing,
the Trustee may recover judgment in its own name and as trustee of an express
trust against the Company or the Guarantors (or any other obligor on the Notes)
for the whole amount of unpaid principal and accrued interest remaining unpaid,
together with interest on overdue principal and, to the extent that payment of
such interest is lawful, interest on overdue installments of interest, in each
case at the rate set forth in the Notes, and such further amounts as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
Section 6.10. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.07 hereof) and the Noteholders
allowed in any judicial proceedings relative to the Company or the Guarantors
(or any other obligor upon the Notes), its creditors or its property and shall
be entitled and empowered to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same after
deduction of its charges and expenses to the extent that any such charges and
expenses are not paid out of the estate in any such proceedings and any
custodian in any such judicial proceeding is
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hereby authorized by each Noteholder to make such payments to the Trustee, and
in the event that the Trustee shall consent to the making of such payments
directly to the Noteholders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section
7.07 hereof.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Noteholder any plan or reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Noteholder in any such
proceedings.
Section 6.11. Priorities.
If the Trustee collects any money pursuant to this Article 6,
it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07
hereof;
SECOND: to Noteholders for amounts due and unpaid on the
Notes for principal, premium, if any, and interest (including
Additional Interest, if any) as to each, ratably, without preference
or priority of any kind, according to the amounts due and payable on
the Notes; and
THIRD: to the Company or, to the extent the Trustee collects
any amount from any Guarantor, to such Guarantor.
The Trustee may fix a record date and payment date for any
payment to Noteholders pursuant to this Section 6.11.
Section 6.12. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.12 does not apply to a suit by the Trustee, a suit
by a Holder
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pursuant to Section 6.07 hereof or a suit by Holders of more than 10% in
principal amount of the Notes then outstanding.
Section 6.13. Restoration of Rights and Remedies.
If the Trustee or any Holder 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 case, subject to any
determination in such proceeding, the Company, the Guarantors, the Trustee and
the Holders 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.
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If an Event of Default actually known to a
Responsible Officer of the Trustee 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 man would
exercise or use under the same circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are
specifically set forth in this Indenture and no others.
(2) 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 but, in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements
of this Indenture (but need not confirm
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or investigate the accuracy of mathematical calculations or other
facts stated therein).
(c) The Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph
(b) of this Section 7.01.
(2) The Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts.
(3) 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 Sections 6.02, 6.05 or 6.06
hereof.
(4) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its rights, powers or
duties if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity satisfactory to it
against such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided,
paragraphs (a), (b), (c) and (e) of this Section 7.01 shall govern every
provision of this Indenture that in any way relates to the Trustee.
(e) The Trustee may refuse to perform any duty or
exercise any right or power unless it receives indemnity satisfactory to it in
its sole discretion against any loss, liability, expense or fee.
(f) The Trustee shall not be liable for interest on any
money received by it except as the Trustee may agree in writing with the
Company or any Guarantor. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by the law.
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Section 7.02. Rights of Trustee.
Subject to Section 7.01 hereof:
(1) The Trustee may rely on any document reasonably
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 require an Officers' Certificate or an Opinion of Counsel, or
both, which shall conform to the provisions of Section 11.05 hereof.
The Trustee shall be protected and shall not be liable for any action
it takes or omits to take in good faith in reliance on such
certificate or opinion.
(3) The Trustee may act through its attorneys and agents
and shall not be responsible for the misconduct or negligence of any
agent appointed by it with due care.
(4) The Trustee shall not be liable for any action it
takes or omits to take in good faith which it reasonably believes to
be authorized or within its rights or powers.
(5) The Trustee may consult with counsel of its
selection, and the advice or opinion of such counsel as to matters of
law shall be full and complete authorization and protection from
liability in respect of any action taken, omitted or suffered by it
hereunder in good faith and in accordance with the advice or opinion
of such counsel.
Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may make loans to, accept deposits from,
perform services for or otherwise deal with the either of the Company or any
Guarantor, or any Affiliates thereof, with the same rights it would have if it
were not Trustee. Any Agent may do the same with like rights. The Trustee,
however, shall be subject to Sections 7.10 and 7.11 hereof.
Section 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Notes or
any Guarantee, it shall not be accountable for the Company's or any Guarantor's
use of the proceeds from the
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sale of Notes or any money paid to the Company or any Guaranty pursuant to the
terms of this Indenture and it shall not be responsible for any statement in
the Notes, Guarantee or this Indenture other than its certificate of
authentication.
Section 7.05. Notice of Defaults.
If a Default occurs and is continuing and if it is known to
the Trustee, the Trustee shall mail to each Noteholder notice of the Default
within 90 days after it occurs. Except in the case of a Default in payment of
the principal of, or premium, if any, or interest on any Note, the Trustee may
withhold the notice if and so long as a committee of its Responsible Officers
in good faith determine(s) that withholding the notice is in the interests of
the Noteholders.
Section 7.06. Reports by Trustee to Holders.
If required by TIA Section 313(a), within 60 days after May
15 of any year, commencing May 15, 1997, the Trustee shall mail to each
Noteholder a brief report dated as of such May 15 that complies with TIA
Section 313(a). The Trustee also shall comply with TIA Section 313(b)(2).
The Trustee shall also transmit by mail all reports as required by TIA Section
313(c) and TIA Section 313(d).
Reports pursuant to this Section 7.06 shall be transmitted by
mail:
(1) to all Holders of Notes, as the names and addresses
of such Holders appear on the Registrar's books; and
(2) to such Holders of Notes as have, within the two
years preceding such transmission, filed their names and addresses
with the Trustee for that purpose.
A copy of each report at the time of its mailing to
Noteholders shall be filed with the SEC and each stock exchange on which the
Notes are listed. The Company shall promptly notify the Trustee when the Notes
are listed on any stock exchange.
Section 7.07. Compensation and Indemnity.
The Company and the Guarantors shall pay to the Trustee and
Agents from time to time such compensation as shall be agreed in writing
between the Company and the Trustee for its services hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an
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express trust). The Company and the Guarantors shall reimburse the Trustee and
Agents upon request for all reasonable disbursements, expenses and advances
incurred or made by it in connection with its duties under this Indenture,
including the reasonable compensation, disbursements and expenses of the
Trustee's agents and counsel.
The Company and the Guarantors shall indemnify each of the
Trustee and any predecessor Trustee for, and hold each of them harmless
against, any and all loss, damage, claim, liability or expense, including
without limitation taxes (other than taxes based on the income of the Trustee
or such Agent) and reasonable attorneys' fees and expenses incurred by each of
them in connection with the acceptance or performance of its duties under this
Indenture including the reasonable costs and expenses of defending itself
against any claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder (including, without limitation,
settlement costs). The Trustee or Agent shall notify the Company and the
Guarantors in writing promptly of any claim asserted against the Trustee or
Agent for which it may seek indemnity. However, the failure by the Trustee or
Agent to so notify the Company and the Guarantors shall not relieve the Company
and Guarantors of their obligations hereunder except to the extent the Company
and the Guarantors are prejudiced thereby.
Notwithstanding the foregoing, the Company and the Guarantors
need not reimburse the Trustee for any expense or indemnify it against any loss
or liability incurred by the Trustee through its negligence or bad faith. To
secure the payment obligations of the Company and the Guarantors in this
Section 7.07, the Trustee shall have a lien prior to the Notes on all money or
property held or collected by the Trustee except such money or property held in
trust to pay principal of and interest on particular Notes. The obligations of
the Company and the Guarantors under this Section 7.07 to compensate and
indemnify the Trustee, Agents and each predecessor Trustee and to pay or
reimburse the Trustee, Agents and each predecessor Trustee for expenses,
disbursements and advances shall be joint and several liabilities of the
Company and each of the Guarantors and shall survive the resignation or removal
of the Trustee and the satisfaction, discharge or other termination of this
Indenture, including any termination or rejection hereof under any Bankruptcy
Law.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(6) or (7) hereof occurs, the
expenses and the compensation for the services
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are intended to constitute expenses of administration under any Bankruptcy Law.
For purposes of this Section 7.07, the term "Trustee" shall
include any trustee appointed pursuant to Article 9.
Section 7.08. Replacement of Trustee.
The Trustee may resign by so notifying the Company and the
Guarantors in writing. The Holders of a majority in principal amount of the
outstanding Notes may remove the Trustee by notifying the Company and the
removed Trustee in writing and may appoint a successor Trustee with the
Company's written consent, which consent shall not be unreasonably withheld.
The Company may remove the Trustee at its election if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of
the Trustee or its property; or
(4) the Trustee otherwise 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.
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 a majority in principal amount of the outstanding
Notes may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10 hereof, any
Noteholder may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately following
such delivery, the retiring Trustee shall, subject to its rights under Section
7.07 hereof, transfer all property held by it as Trustee to the successor
Trustee, the
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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. A successor Trustee shall mail notice of its succession
to each Noteholder. Notwithstanding replacement of the Trustee pursuant to
this Section 7.08, the Company obligations under Section 7.07 hereof shall
continue for the benefit of the retiring Trustee.
Section 7.09. Successor Trustee by Consolidation, Merger, etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust assets to, another
corporation, subject to Section 7.10 hereof, the successor corporation without
any further act shall be the successor Trustee.
Section 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1) and (2) in every respect. The Trustee
shall have a combined capital and surplus of at least $100,000,000 as set forth
in its most recent published annual report of condition. The Trustee shall
comply with TIA Section 310(b), including the provision in Section 310(b)(1).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311 (b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated therein.
Section 7.12. Paying Agents.
The Company shall cause each Paying Agent other than the
Trustee to execute and deliver to it and the Trustee an instrument in which
such agent shall agree with the Trustee, subject to the provisions of this
Section 7.12:
(A) that it will hold all sums held by it as agent for
the payment of principal of, or premium, if any, or interest on, the
Notes (whether such sums have been paid to it by the Company or by any
obligor on the Notes) in trust for the benefit of Holders of the Notes
or the Trustee;
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(B) that it will at any time during the continuance of
any Event of Default, upon written request from the Trustee, deliver
to the Trustee all sums so held in trust by it together with a full
accounting thereof; and
(C) that it will give the Trustee written notice within
three (3) Business Days of any failure of the Company (or by any
obligor on the Notes) in the payment of any installment of the
principal of, premium, if any, or interest on, the Notes when the same
shall be due and payable.
ARTICLE 8
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.01. Without Consent of Holders.
The Company and the Guarantors, when authorized by a Board
Resolution of each of them, and the Trustee may amend, waive or supplement this
Indenture or the Notes without notice to or consent of any Noteholder:
(1) to comply with Section 5.01 hereof;
(2) to provide for uncertificated Notes in addition to or
in place of certificated Notes;
(3) to comply with any requirements of the SEC under the
TIA;
(4) to cure any ambiguity, defect or inconsistency;
(5) to make any other change that does not adversely
affect the rights of any Noteholders hereunder;
(6) to add a Guarantor; or
(7) to provide for the issuance of the Exchange Notes,
the Private Exchange Notes, the Option Notes and the Subsequent Series
Notes in accordance with Section 2.01 in a manner that does not
adversely affect the rights of any Noteholder.
The Trustee is hereby authorized to join with the Company and
the Guarantors in the execution of any supplemental
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indenture authorized or permitted by the terms of this Indenture and to make
any further appropriate agreements and stipulations which may be therein
contained, but the Trustee shall not be obligated to enter into any such
supplemental indenture which adversely affects its own rights, duties or
immunities under this Indenture.
Section 8.02. With Consent of Holders.
The Company (when authorized by a Board Resolution), the
Guarantors (each when authorized by a Board Resolution) and the Trustee may
modify or supplement this Indenture or the Notes with the written consent of
the Holders of not less than a majority in aggregate principal amount of the
outstanding Notes. The Holders of not less than a majority in aggregate
principal amount of the outstanding Notes may waive compliance in a particular
instance by the Company or Guarantors with any provision of this Indenture or
the Notes. Subject to Section 8.04, without the consent of each Noteholder
affected, however, an amendment, supplement or waiver, including a waiver
pursuant to Section 6.04, may not:
(1) reduce the principal amount of outstanding Notes
whose Holders must consent to an amendment, supplement or waiver to
this Indenture or the Notes;
(2) reduce the rate of or change the time for payment of
interest on any Note;
(3) reduce the principal of or premium on or change the
stated maturity of any Note;
(4) make any Note payable in money other than that stated
in the Note or change the place of payment from New York, New York;
(5) change the amount or time of any payment required by
the Notes or reduce the premium payable upon any redemption of the
Notes in accordance with Section 3.01 hereof, or change the time
before which no such redemption may be made;
(6) waive a default in the payment of the principal of,
or interest on, or redemption payment with respect to, any Note
(including any obligation to make a Change of Control Offer or, after
the Company's obligation to purchase Notes arises thereunder, an
Excess Proceeds Offer or modify
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any of the provisions or definitions with respect to such offers);
(7) make any changes in Sections 6.04 or 6.08 hereof or
this sentence of Section 8.02; or
(8) affect the ranking of the Notes or the Guarantee in a
manner adverse to the Holders.
After an amendment, supplement or waiver under this Section
8.02 becomes effective, the Company shall mail to the Holders a notice briefly
describing the amendment, supplement or waiver.
Upon the written request of the Company, accompanied by a
Board Resolution authorizing the execution of any such supplemental indenture,
and upon the receipt by the Trustee of evidence reasonably satisfactory to the
Trustee of the consent of the Noteholders as aforesaid and upon receipt by the
Trustee of the documents described in Section 8.06 hereof, the Trustee shall
join with the Company and the Guarantors in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture, in which case the Trustee may, but
shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
Section 8.03. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes
shall comply with the TIA as then in effect.
Section 8.04. Revocation and Effect of Consents.
Until an amendment, supplement, waiver or other action becomes
effective, a consent to it by a Holder of a Note is a continuing consent
conclusive and binding upon such Holder and every subsequent Holder of the same
Note or portion thereof, and of any Note issued upon the transfer thereof or in
exchange therefor or in place thereof, even if notation of the consent is not
made on any such Note. Any such Holder or subsequent Holder, however, may
revoke the consent as to his Note or portion of a Note, if the Trustee receives
the written notice of revocation
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before the date the amendment, supplement, waiver or other action becomes
effective.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to any
amendment, supplement, or waiver. If a record date is fixed, then,
notwithstanding the preceding paragraph, those Persons who were Holders at such
record date (or their duly designated proxies), and only such Persons, shall be
entitled to consent to such amendment, supplement, or waiver or to revoke any
consent previously given, whether or not such Persons continue to be Holders
after such record date. No such consent shall be valid or effective for more
than 90 days after such record date unless the consent of the requisite number
of Holders has been obtained.
After an amendment, supplement, waiver or other action becomes
effective, it shall bind every Noteholder, unless it makes a change described
in any of clauses (1) through (8) of Section 8.02 hereof. In that case the
amendment, supplement, waiver or other action shall bind each Holder of a Note
who has consented to it and every subsequent Holder of a Note or portion of a
Note that evidences the same debt as the consenting Holder's Note.
Section 8.05. Notation on or Exchange of Notes.
If an amendment, supplement, or waiver changes the terms of a
Note, the Trustee (in accordance with the specific written direction of the
Company) shall request the Holder of the Note (in accordance with the specific
written direction of the Company) to deliver it to the Trustee. In such case,
the Trustee shall place an appropriate notation on the Note about the changed
terms and return it to the Holder. Alternatively, if the Company or the
Trustee so determines, the Company in exchange for the Note shall issue, the
Guarantors shall endorse, and the Trustee shall authenticate a new Note that
reflects the changed terms. Failure to make the appropriate notation or issue
a new Note shall not affect the validity and effect of such amendment,
supplement or waiver.
Section 8.06. Trustee To Sign Amendments, etc.
The Trustee shall sign any amendment, supplement or waiver
authorized pursuant to this Article 8 if the amendment, supplement or waiver
does not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may, but need not, sign it. In signing or
refusing
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to sign such amendment, supplement or waiver the Trustee shall be entitled to
receive and, subject to Section 7.01 hereof, shall be fully protected in
relying upon an Officers' Certificate and an Opinion of Counsel stating, in
addition to the matters required by Section 11.04, that such amendment,
supplement or waiver is authorized or permitted by this Indenture and is a
legal, valid and binding obligation of the Company and Guarantors, enforceable
against the Company and Guarantors in accordance with its terms (subject to
customary exceptions).
ARTICLE 9
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01. Discharge of Indenture.
The Company and the Guarantors may terminate their obligations
under the Notes, the Guarantees and this Indenture, except the obligations
referred to in the last paragraph of this Section 9.01, if there shall have
been cancelled by the Trustee or delivered to the Trustee for cancellation all
Notes theretofore authenticated and delivered (other than any Notes that are
asserted to have been destroyed, lost or stolen and that shall have been
replaced as provided in Section 2.08 hereof) and the Company has paid all sums
payable by them hereunder or deposited all required sums with the Trustee.
After such delivery, the Trustee upon Company Request shall
acknowledge in writing the discharge of the Company's and the Guarantors'
obligations under the Notes, the Guarantees and this Indenture except for those
surviving obligations specified below.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company in Sections 7.07, 9.05 and 9.06
hereof shall survive.
Section 9.02. Legal Defeasance.
The Company may at its option, by Board Resolution of the
Board of Directors of the Company, be discharged from its obligations with
respect to the Notes and the Guarantors discharged from their obligations under
the Guarantees on the date the conditions set forth in Section 9.04 below are
satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal
Defeasance means that the Company shall be deemed to have paid
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and discharged the entire indebtedness represented by the Notes and to have
satisfied all its other obligations under such Notes and this Indenture insofar
as such Notes are concerned (and the Trustee, at the expense of the Company,
shall, subject to Section 9.06 hereof, execute instruments in form and
substance reasonably satisfactory to the Trustee and Company acknowledging the
same), except for the following which shall survive until otherwise terminated
or discharged hereunder: (A) the rights of Holders of outstanding Notes to
receive solely from the trust funds described in Section 9.04 hereof and as
more fully set forth in such Section, payments in respect of the principal of,
premium, if any, and interest on such Notes when such payments are due, (B) the
Company's obligations with respect to such Notes under Sections 2.03, 2.04,
2.05, 2.06, 2.07, 2.08, 2.11 and 4.20 hereof, (C) the rights, powers, trusts,
duties, and immunities of the Trustee hereunder (including claims of, or
payments to, the Trustee under or pursuant to Section 7.07 hereof) and (D) this
Article 9. Subject to compliance with this Article 9, the Company may exercise
its option under this Section 9.02 with respect to the Notes notwithstanding
the prior exercise of its option under Section 9.03 below with respect to the
Notes.
Section 9.03. Covenant Defeasance.
At the option of the Company, pursuant to a Board Resolution
of the Board of Directors of the Company, the Company and the Guarantors shall
be released from their respective obligations under Sections 4.02 (except for
obligations mandated by the TIA), 4.05 through 4.16, 4.19 and 4.21, inclusive,
and clause (a)(iii) of Section 5.01 hereof with respect to the outstanding
Notes on and after the date the conditions set forth in Section 9.04 hereof are
satisfied (hereinafter, "Covenant Defeasance"). For this purpose, such
Covenant Defeasance means that the Company and the Guarantors may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such specified Section or portion thereof, whether
directly or indirectly by reason of any reference elsewhere herein to any such
specified Section or portion thereof or by reason of any reference in any such
specified Section or portion thereof to any other provision herein or in any
other document, but the remainder of this Indenture and the Notes shall be
unaffected thereby.
Section 9.04. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of
Section 9.02 or Section 9.03 hereof to the outstanding Notes:
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(1) the Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee satisfying
the requirements of Section 7.10 hereof who shall agree to comply with
the provisions of this Article 9 applicable to it) as funds in trust
for the purpose of making the following payments, specifically pledged
as security for, and dedicated solely to, the benefit of the Holders
of the Notes, (A) money in an amount, or (B) U.S. Government
Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will
provide, not later than the due date of any payment, money in an
amount, or (C) a combination thereof, sufficient, in the opinion of a
nationally-recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, the principal of, premium,
if any, and accrued interest on the outstanding Notes at the maturity
date of such principal, premium, if any, or interest, or on dates for
payment and redemption of such principal, premium, if any, and
interest selected in accordance with the terms of this Indenture and
of the Notes;
(2) no Event of Default or Default with respect to the
Notes shall have occurred and be continuing on the date of such
deposit, or shall have occurred and be continuing at any time during
the period ending on the 91st day after the date of such deposit or,
if longer, ending on the day following the expiration of the longest
preference period under any Bankruptcy Law applicable to the Company
in respect of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period);
(3) such Legal Defeasance or Covenant Defeasance shall
not cause the Trustee to have a conflicting interest for purposes of
the TIA with respect to any securities of the Company;
(4) such Legal Defeasance or Covenant Defeasance shall
not result in a breach or violation of, or constitute default under
any other agreement or instrument to which the Company or any
Guarantor is a party or by which they are bound;
(5) the Company shall have delivered to the Trustee an
Opinion of Counsel stating that, as a result of such Legal
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Defeasance or Covenant Defeasance, neither the trust nor the Trustee
will be required to register as an investment company under the
Investment Company Act of 1940, as amended;
(6) in the case of an election under Section 9.02 above,
the Company shall have delivered to the Trustee an Opinion of Counsel
stating that (i) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling to the effect that
or (ii) there has been a change in any applicable Federal income tax
law with the effect that, and such opinion shall confirm that, the
Holders of the outstanding Notes or Persons in their positions will
not recognize income, gain or loss for Federal income tax purposes
solely as a result of such Legal Defeasance and will be subject to
Federal income tax on the same amounts, in the same manner, including
as a result of prepayment, and at the same times as would have been
the case if such Legal Defeasance had not occurred;
(7) in the case of an election under Section 9.03 hereof,
the Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that the Holders of the outstanding Notes will not
recognize income, gain or loss for Federal income tax purposes as a
result of such Covenant Defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Covenant Defeasance had not
occurred;
(8) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the Legal
Defeasance under Section 9.02 above or the Covenant Defeasance under
Section 9.03 hereof (as the case may be) have been complied with;
(9) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit under clause (1) was
not made by the Company with the intent of defeating, hindering,
delaying or defrauding any creditors of the Company or others; and
(10) the Company shall have paid or duly provided for
payment under terms mutually satisfactory to the Company and the
Trustee all amounts then due to the Trustee pursuant to Section 7.07
hereof.
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Section 9.05. Deposited Money and U.S. Government Obligations To Be
Held in Trust; Other Miscellaneous Provisions.
All money and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee pursuant to Section 9.04 hereof in
respect of the outstanding Notes shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Notes and this Indenture, to
the payment, either directly or through any Paying Agent, to the Holders of
such Notes, of all sums due and to become due thereon in respect of principal,
premium, if any, and accrued interest, but such money need not be segregated
from other funds except to the extent required by law.
The Company and the Guarantors shall (on a joint and several
basis) pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 9.04 hereof or the principal, premium, if any, and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of the outstanding Notes.
Anything in this Article 9 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon an
Company Request any money or U.S. Government Obligations held by it as provided
in Section 9.04 hereof which, in the opinion of a nationally-recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent Legal Defeasance or
Covenant Defeasance.
Section 9.06. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or
U.S. Government Obligations in accordance with Section 9.01, 9.02 or 9.03
hereof by reason of any legal proceeding or by reason of any order or judgment
of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company's and each Guarantor's obligations
under this Indenture, the Notes and the Guarantees shall be revived and
reinstated as though no deposit had occurred pursuant to this Article 9 until
such time as the Trustee or Paying Agent is permitted to apply all such money
or U.S. Government Obligations in accordance with Section 9.01 hereof;
provided, however, that if the Company or the Guarantors have
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made any payment of principal of, premium, if any, or accrued interest on any
Notes because of the reinstatement of their obligations, the Company or the
Guarantors, as the case may be, shall be subrogated to the rights of the
Holders of such Notes to receive such payment from the money or U.S. Government
Obligations held by the Trustee or Paying Agent.
Section 9.07. Moneys Held by Paying Agent.
In connection with the satisfaction and discharge of this
Indenture, all moneys then held by any Paying Agent under the provisions of
this Indenture shall, upon written demand of the Company, be paid to the
Trustee, or if sufficient moneys have been deposited pursuant to Section 9.01
hereof, to the Company upon an Company Request (or, if such moneys had been
deposited by the Guarantors, to such Guarantors), and thereupon such Paying
Agent shall be released from all further liability with respect to such moneys.
Section 9.08. Moneys Held by Trustee.
Any moneys deposited with the Trustee or any Paying Agent or
then held by the Company or the Guarantors in trust for the payment of the
principal of, or premium, if any, or interest on any Note that are not applied
but remain unclaimed by the Holder of such Note for two years after the date
upon which the principal of, or premium, if any, or interest on such Note shall
have respectively become due and payable shall be repaid to the Company (or, if
appropriate, the Guarantors) upon an Company Request, or if such moneys are
then held by the Company or the Guarantors in trust, such moneys shall be
released from such trust; and the Holder of such Note entitled to receive such
payment shall thereafter, as an unsecured general creditor, look only to the
Company and the Guarantors for the payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money shall thereupon
cease; provided, however, that the Trustee or any such Paying Agent, before
being required to make any such repayment, may, at the expense of the Company
and the Guarantors, either mail to each Noteholder affected, at the address
shown in the register of the Notes maintained by the Registrar pursuant to
Section 2.03 hereof, or cause to be published once a week for two successive
weeks, in a newspaper published in the English language, customarily published
each Business Day and of general circulation in the City of New York, New York,
a notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such mailing or
publication, any unclaimed balance of such moneys then remaining
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will be repaid to the Company. After payment to the Company or the Guarantors
or the release of any money held in trust by the Company or any Guarantors, as
the case may be, Noteholders entitled to the money must look only to the
Company and the Guarantors for payment as general creditors unless applicable
abandoned property law designates another Person.
ARTICLE 10
GUARANTEE OF NOTES
Section 10.01. Guarantee.
Subject to the provisions of this Article 10, each Guarantor
hereby jointly and severally unconditionally guarantees to each Holder and to
the Trustee, (i) the due and punctual payment of the principal of, and premium,
if any, and interest on each Note, when and as the same shall become due and
payable, whether at maturity, by acceleration or otherwise, the due and
punctual payment of interest (including Additional Interest) on the overdue
principal of, and premium, if any, and interest on the Notes, to the extent
lawful, and the due and punctual performance of all other Obligations of the
Company to the Holders or the Trustee (including without limitation amounts due
the Trustee under Section 7.07) all in accordance with the terms of such Note
and this Indenture, and (ii) in the case of any extension of time of payment or
renewal of any Notes or any of such other Obligations, that the same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, at stated maturity, by acceleration or otherwise. Each
Guarantor hereby agrees that its obligations hereunder shall be absolute and
unconditional, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of any such Note or this Indenture, any
failure to enforce the provisions of any such Note or this Indenture, any
waiver, modification or indulgence granted to the Company with respect thereto
by the Holder of such Note or the Trustee, or any other circumstances which may
otherwise constitute a legal or equitable discharge of a surety or such
Guarantor.
Each Guarantor hereby waives diligence, presentment, demand
for payment, filing of claims with a court in the event of merger or bankruptcy
of the Company, any right to require a proceeding first against the Company,
protest or notice with respect to any such Note or the Indebtedness evidenced
thereby and all demands whatsoever, and covenants that this Guarantee
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will not be discharged as to any such Note except by payment in full of the
principal thereof, premium if any, and interest thereon and as provided in
Section 9.01 hereof. Each Guarantor further agrees that, as between such
Guarantor, on the one hand, and the Holders and the Trustee, on the other hand,
(i) the maturity of the Obligations guaranteed hereby may be accelerated as
provided in Article 6 hereof for the purposes of this Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Obligations guaranteed hereby, and (ii) in the
event of any declaration of acceleration of such Obligations as provided in
Article 6 hereof, such Obligations (whether or not due and payable) shall
forthwith become due and payable by each Guarantor for the purpose of this
Guarantee. In addition, without limiting the foregoing provisions, upon the
effectiveness of an acceleration under Article 6 hereof, the Trustee shall
promptly make a demand for payment on the Notes under the Guarantee provided
for in this Article 10 and not discharged.
The Guarantee set forth in this Section 10.01 shall not be
valid or become obligatory for any purpose with respect to a Note until the
certificate of authentication on such Note shall have been signed by or on
behalf of the Trustee by its manual signature.
Section 10.02. Execution and Delivery of Guarantees.
To evidence the Guarantee set forth in this Article 10, each
Guarantor hereby agrees that a notation of such Guarantee substantially in the
form included in Exhibit G hereto shall be placed on each Note authenticated
and made available for delivery by the Trustee and that this Guarantee shall be
executed on behalf of each Guarantor by the manual or facsimile signature of an
Officer of each Guarantor.
Each Guarantor hereby agrees that the Guarantee set forth in
Section 10.01 shall remain in full force and effect notwithstanding any failure
to endorse on each Note a notation of such Guarantee.
If an Officer of a Guarantor whose signature is on the
Guarantee no longer holds that office at the time the Trustee authenticates the
Note on which the Guarantee is endorsed, the Guarantee shall be valid
nevertheless.
The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery
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of the Guarantee set forth in this Indenture on behalf of each Guarantor.
Section 10.03. Limitation of Guarantee.
The obligations of each Guarantor are limited to the maximum
amount as will, after giving effect to all other contingent and fixed
liabilities of such Guarantor and after giving effect to any collections from
or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under its Guarantee or pursuant to its
contribution obligations under this Indenture, result in the obligations of
such Guarantor under the Guarantee not constituting a fraudulent conveyance or
fraudulent transfer under federal or state law. Each Guarantor that makes a
payment or distribution under a Guarantee shall be entitled to a contribution
from each other Guarantor in a pro rata amount based on the Adjusted Net Assets
of each Guarantor.
Section 10.04. Additional Guarantors.
The Company covenants and agrees that it shall cause any
Person which becomes obligated to guarantee the Notes, pursuant to the terms of
Section 4.14 hereof, to execute a guarantee satisfactory in form and substance
to the Trustee pursuant to which such Restricted Subsidiary shall guarantee the
obligations of the Company under the Notes and this Indenture in accordance
with this Article 10 with the same effect and to the same extent as if such
Person had been named herein as a Guarantor.
Section 10.05. Release of Guarantor.
A Guarantor shall be released from all of its obligations
under its Guarantee if:
(i) the Guarantor has sold all or substantially all of
its assets or the Company and its Restricted Subsidiaries have sold
all of the Capital Stock of the Guarantor owned by them, in each case
in a transaction in compliance with Sections 4.10 and 5.01 hereof; or
(ii) the Guarantor merges with or into or consolidates
with, or transfers all or substantially all of its assets to, the
Company or another Guarantor in a transaction in compliance with
Section 5.01 hereof;
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and in each such case, such Guarantor has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to such transactions have been complied
with.
ARTICLE 11
MISCELLANEOUS
Section 11.01. Trust Indenture Act Controls.
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 11.02. Notices.
Except for notice or communications to Holders, any notice or
communication shall be given in writing and delivered in person, sent by
facsimile, delivered by commercial courier service or mailed by first-class
mail, postage prepaid, addressed as follows:
If to the Company or any Guarantor:
Booth Creek Ski Holdings, Inc.
0000 Xxxxx Xxxxxxxx Xxxx, Xxxx
Xxxxx 000
Xxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Xx.
Fax Number: (000) 000-0000
with, in the case of any notice furnished pursuant to Article
6, a copy to:
Winston & Xxxxxx
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxx, Esq.
Fax Number: (000) 000-0000
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If to the Trustee:
Marine Midland Bank
000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
Fax Number: (000) 000-0000
Such notices or communications shall be effective when
received and shall be sufficiently given if so given within the time prescribed
in this Indenture.
The Company, the Guarantors or the Trustee by written notice
to the others may designate additional or different addresses for subsequent
notices or communications.
Any notice or communication mailed to a Noteholder shall be
mailed to him by first-class mail, postage prepaid, at his address shown on the
register kept by the Registrar.
Failure to mail a notice or communication to a Noteholder or
any defect in it shall not affect its sufficiency with respect to other
Noteholders. If a notice or communication to a Noteholder is mailed in the
manner provided above, it shall be deemed duly given, whether or not the
addressee receives it.
In case by reason of the suspension of regular mail service,
or by reason of any other cause, it shall be impossible to mail any notice as
required by this Indenture, then such method of notification as shall be made
with the approval of the Trustee shall constitute a sufficient mailing of such
notice.
Section 11.03. Communications by Holders with Other Holders.
Noteholders may communicate pursuant to TIA Section 312(b)
with other Noteholders with respect to their rights under this Indenture or the
Notes. The Company, the Guarantors, the Trustee, the Registrar and anyone else
shall have the protection of TIA Section 312(c).
Section 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company or any
Guarantor to the Trustee to take any action under this Indenture, the Company
or such Guarantor shall furnish to the Trustee:
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(1) an Officers' Certificate (which shall include the
statements set forth in Section 11.05 below) 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 (which shall include the
statements set forth in Section 11.05 below) stating that, in the
opinion of such counsel, all such conditions precedent have been
complied with.
Section 11.05. Statements Required in Certificate and Opinion.
Each certificate and 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, it
or he has made such examination or investigation as is necessary to
enable it or 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 covenant or condition has been complied with.
Section 11.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or
meetings of Noteholders. The Registrar and Paying Agent may make reasonable
rules for their functions.
Section 11.07. Business Days; Legal Holidays.
A "Business Day" is a day that is not a Legal Holiday. A
"Legal Holiday" is a Saturday, a Sunday, a federally-recognized holiday or a
day on which banking institutions are not required to be open in the State of
New York. If a payment date is a Legal Holiday at a place of payment, payment
may be made at that
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place on the next succeeding day that is not a Legal Holiday, and no interest
shall accrue for the intervening period.
Section 11.08. Governing Law.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO
THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE NOTES.
Section 11.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture,
loan, security or debt agreement of the Company or any Subsidiary thereof. No
such indenture, loan, security or debt agreement may be used to interpret this
Indenture.
Section 11.10. No Recourse Against Others.
No recourse for the payment of the principal of or premium, if
any, or interest, including Additional Interest, on any of the Notes, or for
any claim based thereon or otherwise in respect thereof, and no recourse under
or upon any obligation, covenant or agreement of the Company or any Guarantor
in this Indenture or in any supplemental indenture, or in any of the Notes, or
because of the creation of any Indebtedness represented thereby, shall be had
against any stockholder, officer, director or employee, as such, past, present
or future, of the Company or of any successor corporation or against the
property or assets of any such stockholder, officer, employee or director,
either directly or through the Company or any Guarantor, or any successor
corporation thereof, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that this Indenture and the Notes are solely obligations
of the Company and the Guarantors, and that no such personal liability whatever
shall attach to, or is or shall be incurred by, any stockholder, officer,
employee or director of the Company or any Guarantor, or any successor
corporation thereof, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or the Notes or implied therefrom, and that any and
all such personal liability of, and any and all claims against every
stockholder, officer, employee and director, are hereby expressly waived and
released as a
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condition of, and as a consideration for, the execution of this Indenture and
the issuance of the Notes. It is understood that this limitation on recourse
is made expressly for the benefit of any such shareholder, employee, officer or
director and may be enforced by any of them.
Section 11.11. Successors.
All agreements of the Company and the Guarantors in this
Indenture and the Notes shall bind their respective successors. All agreements
of the Trustee, any additional trustee and any Paying Agents in this Indenture
shall bind its successor.
Section 11.12. Multiple Counterparts.
The parties may sign multiple counterparts of this Indenture.
Each signed counterpart shall be deemed an original, but all of them together
represent one and the same agreement.
Section 11.13. Table of Contents, Headings, etc.
The table of contents, cross-reference sheet and headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
Section 11.14. Separability.
Each provision of this Indenture shall be considered separable
and if for any reason any provision which is not essential to the effectuation
of the basic purpose of this Indenture or the Notes shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
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IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed all as of the date and year first written above.
BOOTH CREEK SKI HOLDINGS, INC.
TRIMONT LAND COMPANY
SIERRA-AT-TAHOE, INC.
BEAR MOUNTAIN, INC.
WATERVILLE VALLEY SKI RESORT, INC.
MOUNT CRANMORE SKI RESORT, INC.
BOOTH CREEK SKI ACQUISITION CORP.
SKI LIFTS, INC.
GRAND TARGHEE INCORPORATED
B-V CORPORATION
TARGHEE COMPANY
TARGHEE SKI CORP.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President,
Finance
MARINE MIDLAND BANK,
as Trustee
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Assistant Vice President
103
EXHIBIT A
[FORM OF FACE OF NOTE]
CUSIP [ ]
BOOTH CREEK SKI HOLDINGS, INC.
No. [ ] $
12 1/2% SENIOR NOTE DUE 2007
BOOTH CREEK SKI HOLDINGS, INC., a Delaware corporation (the
"Company"), for value received, promises to pay to
or registered assigns the principal sum of $ dollars on March 15,
2007.
Interest Payment Dates: March 15 and September 15
Record Dates: March 1 and September 1
Reference is made to the further provisions of this Note
contained herein, which will for all purposes have the same effect as if set
forth at this place.
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IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officers.
BOOTH CREEK SKI HOLDINGS, INC.
By:
-------------------------------------
Title:
By:
-------------------------------------
Title:
Dated:
Certificate of Authentication
This is one of the 12 1/2% Senior Notes due 2007 referred to
in the within-mentioned Indenture.
MARINE MIDLAND BANK,
as Trustee
By:
-------------------------------------
Authorized Signatory
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[FORM OF REVERSE OF NOTE]
BOOTH CREEK SKI HOLDINGS, INC.
12 1/2% SENIOR NOTE DUE 2007
1. Interest. Booth Creek Ski Holdings, Inc., a Delaware
corporation (the "Company"), promises to pay, until the principal hereof is
paid or made available for payment, interest on the principal amount set forth
on the face hereof at a rate of 12 1/2% per annum. Interest hereon will accrue
from and including the most recent date to which interest has been paid or, if
no interest has been paid, from and including March 18, 1997* to but excluding
the date on which interest is paid. Interest shall be payable in arrears on
each March 15 and September 15 commencing September 15, 1997. Interest will be
computed on the basis of a 360-day year of twelve 30-day months. The Company
shall pay interest on overdue principal and on overdue interest (to the full
extent permitted by law) at a rate of 12 1/2% per annum.
2. Method of Payment. The Company will pay interest hereon
(except defaulted interest) to the Persons who are registered Holders at the
close of business on March 1 or September 1 next preceding the interest payment
date (whether or not a Business Day). Holders must surrender Notes to a Paying
Agent to collect principal payments. The Company will pay principal and
interest in money of the United States of America that at the time of payment
is legal tender for payment of public and private debts. Interest may be paid
by check mailed to the Holder entitled thereto at the address indicated on the
register maintained by the Registrar for the Notes.
3. Paying Agent and Registrar. Initially, Marine Midland Bank
(the "Trustee") will act as a Paying Agent and Registrar. The Company may
change any Paying Agent or Registrar without notice. Neither the Company nor
any of its Affiliates may act as Paying Agent or Registrar.
4. Indenture. The Company issued the Notes under an Indenture
dated as of March 18, 1997 (the "Indenture") among the Company, the Guarantors
(as defined in the Indenture) and the Trustee. This is one of an issue of
Notes of the Company issued, or to be issued, under the Indenture. The terms
of the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15
----------------------
* For Option Notes and Subsequent Series Notes, will be the original issue
date or such other date as the Company and the Holder may agree.
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U.S. Code Section Section 77aaa-77bbbb), as amended from time to time. The
Notes are subject to all such terms, and Holders are referred to the Indenture
and such Act for a statement of them. Capitalized and certain other terms
used herein and not otherwise defined have the meanings set forth in the
Indenture. The Notes are obligations of the Company limited in aggregate
principal amount to $200.0 million.
5. Optional Redemption. The Company, at its option, may redeem
the Notes, in whole or in part, at any time on or after March 15, 2002 upon not
less than 30 nor more than 60 days' notice, at the redemption prices (expressed
as percentages of principal amount), set forth below, together, in each case,
with accrued and unpaid interest to the Redemption Date, if redeemed during the
twelve month period beginning on March 15 of each year listed below:
Year Redemption Price
---- ----------------
2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106.250%
2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104.167%
2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102.083%
2005 and thereafter . . . . . . . . . . . . . . . . . . . . . . . 100.000%
Notwithstanding the foregoing, the Company may redeem in the
aggregate up to 30% of the original principal amount of Notes at any time and
from time to time on or prior to March 15, 2000 at a redemption price equal to
112.5 % of the aggregate principal amount thereof, plus accrued and unpaid
interest thereon to the Redemption Date with the Net Proceeds of one or more
Public Equity Offerings; provided, that at least $77.0 million of the principal
amount of Notes originally issued remains outstanding immediately after the
occurrence of any such redemption and that any such redemption occurs within 90
days following the closing of any such Public Equity Offering.
6. Notice of Redemption. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the Redemption Date to each
Holder of Notes to be redeemed at his registered address. On and after the
Redemption Date, unless the Company defaults in making the redemption payment,
interest ceases to accrue on Notes or portions thereof called for redemption.
7. Offers to Purchase. The Indenture provides that upon the
occurrence of a Change of Control or an Asset Sale and subject to further
limitations contained therein, the Company shall make an offer to purchase
outstanding Notes in accordance with the procedures set forth in the Indenture.
8. Registration Rights. Pursuant to a Registration Rights
Agreement among the Company, the Guarantors and CIBC Wood Gundy
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Securities Corp., as Initial Purchaser of the Notes, the Company will be
obligated to consummate an exchange offer pursuant to which the Holder of this
Note shall have the right to exchange this Note for notes of a separate series
issued under the Indenture (or a trust indenture substantially identical to the
Indenture in accordance with the terms of the Registration Rights Agreement)
which have been registered under the Securities Act, in like principal amount
and having substantially identical terms as the Notes. The Holders shall be
entitled to receive certain additional interest payments in the event such
exchange offer is not consummated and upon certain other conditions, all
pursuant to and in accordance with the terms of the Registration Rights
Agreement.
9. Denominations, Transfer, Exchange. The Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. A Holder may transfer or exchange Notes in accordance
with the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay to it any
taxes and fees required by law or permitted by the Indenture. The Registrar
need not register the transfer of or exchange any Notes or portion of a Note
selected for redemption, or register the transfer of or exchange any Notes for
a period of 15 days before a mailing of notice of redemption.
10. Persons Deemed Owners. The registered Holder of this Note may
be treated as the owner of this Note for all purposes.
11. Unclaimed Money. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee will pay the money back
to the Company at its written request. After that, Holders entitled to the
money must look to the Company for payment as general creditors unless an
"abandoned property" law designates another Person.
12. Amendment, Supplement, Waiver, Etc. The Company, the
Guarantors and the Trustee (if a party thereto) may, without the consent of the
Holders of any outstanding Notes, amend, waive or supplement the Indenture or
the Notes for certain specified purposes, including, among other things, curing
ambiguities, defects or inconsistencies, maintaining the qualification of the
Indenture under the Trust Indenture Act of 1939, as amended, and making any
change that does not materially and adversely affect the rights of any Holder.
Other amendments and modifications of the Indenture or the Notes may be made by
the Company, the Guarantors and the Trustee with the consent of the Holders of
not less than a majority of the aggregate principal amount of the outstanding
Notes, subject to certain exceptions requiring the consent of the Holders of
the particular Notes to be affected.
X-0
000
00. Restrictive Covenants. The Indenture imposes certain
limitations on the ability of the Company and its Restricted Subsidiaries to,
among other things, incur additional Indebtedness, make payments in respect of
their Capital Stock or certain Indebtedness, make certain Investments, create
or incur liens, enter into transactions with Affiliates, enter into agreements
restricting the ability of Restricted Subsidiaries to pay dividends and make
distributions, issue Preferred Stock of any Restricted Subsidiaries of the
Company, enter into sale and leaseback transactions and on the ability of the
Company to merge or consolidate with any other Person or transfer all or
substantially all of the Company's or any Guarantor's assets. Such limitations
are subject to a number of important qualifications and exceptions. Pursuant
to Section 4.04 of the Indenture, the Company must annually report to the
Trustee on compliance with such limitations.
14. Successor Corporation. When a successor corporation assumes
all the obligations of its predecessor under the Notes and the Indenture and
the transaction complies with the terms of Article 5 of the Indenture, the
predecessor corporation will, except as provided in Article 5, be released from
those obligations.
15. Defaults and Remedies. Events of Default are set forth in the
Indenture. Subject to certain limitations in the Indenture, if an Event of
Default (other than an Event of Default specified in Section 6.01(6) or (7) of
the Indenture with respect to the Company) occurs and is continuing, the
Trustee or the Holders of not less than 25% in aggregate principal amount of
the outstanding Notes may, by written notice to the Trustee and the Company,
and the Trustee upon the request of the Holders of not less than 25% in
aggregate principal amount of the outstanding Notes shall, declare all
principal of and accrued interest on all Notes to be immediately due and
payable and (i) such amounts shall become immediately due and payable or (ii)
if there are any amounts outstanding under or in respect of the Senior Credit
Facility, such amounts shall become due and payable upon the first to occur of
an acceleration of amounts outstanding under or in respect of the Senior Credit
Facility or five Business Days after receipt by the Company and the
representative of the holders of Indebtedness under or in respect of the Senior
Credit Facility, of notice of the acceleration of the Notes. If an Event of
Default specified in Section 6.01(6) or (7) of the Indenture occurs with
respect to the Company, the principal amount of and interest on, all Notes
shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder. Holders may
not enforce the Indenture or the Notes except as provided in the Indenture.
The Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Notes. Subject to certain limitations, Holders of a majority
in principal amount of
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the then outstanding Notes may direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Holders notice of any continuing
default (except a default in payment of principal or interest) if it determines
that withholding notice is in their interests. The Company and each Guarantor
must furnish an annual compliance certificate to the Trustee.
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 the
Company or its Affiliates, as if it were not Trustee.
17. No Recourse Against Others. No director, officer, employee
incorporator or stockholder, of the Company or any Guarantor shall have any
liability for any obligations of the Company or the Guarantors under the Notes,
the Indenture or the Guarantees or for a claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder of Notes by
accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Notes.
18. Discharge. The Company's obligations pursuant to the
Indenture will be discharged, except for obligations pursuant to certain
sections thereof, subject to the terms of the Indenture, upon the payment of
all the Notes or upon the irrevocable deposit with the Trustee of United States
dollars or U.S. Government Obligations sufficient to pay when due principal of
and interest on the Notes to maturity or redemption, as the case may be.
19. Guarantees. The Note will be entitled to the benefits of
certain Guarantees made for the benefit of the Holders. Reference is hereby
made to the Indenture for a statement of the respective rights, limitations of
rights, duties and obligations thereunder of the Guarantors, the Trustee and
the Holders.
20. Authentication. This Note shall not be valid until the
Trustee signs the certificate of authentication on the other side of this Note.
21. Governing Law. THE INTERNAL LAWS OF THE STATE OF NEW YORK
SHALL GOVERN THIS NOTE WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS. The
Trustee, the Company, the Guarantor and the Holders agree to submit to the
jurisdiction of the courts of the State of New York in any action or proceeding
arising out of or relating to the Indenture or the Notes.
22. Abbreviations. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common),
TENANT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in
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common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to:
BOOTH CREEK SKI HOLDINGS, INC.
Xxxxx 000 xxx Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
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ASSIGNMENT
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Agent to transfer this Note on the books of the Company. The Agent may
substitute another to act for him.
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Note
purchased by the Company pursuant to Section 4.10 or Section 4.19 of the
Indenture, check the appropriate box:
[ ] Section 4.10 [ ] Section 4.19
If you want to have only part of the Note purchased by the
Company pursuant to Section 4.10 or Section 4.19 of the Indenture, state the
amount you elect to have purchased:
$
--------------------
(multiple of $1,000)
Date:
----------------
Your Signature:
------------------------------------
(Sign exactly as your name appears on the face of
this Note)
-----------------------
Signature Guaranteed
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EXHIBIT B
[FORM OF LEGEND FOR 144A NOTE]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS
SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A)
IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE ACT)
OR (B) IT IS AN "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3)
OR (7) UNDER THE ACT) (AN "ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON
AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL
NOT WITHIN THREE YEARS AFTER THE ORIGINAL ISSUANCE OF THIS NOTE RESELL OR
OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY
THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, (C)
INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 000X XXXXX XXX XXX, (X) XXXXXX XXX XXXXXX XXXXXX TO AN ACCREDITED INVESTOR
THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A
U.S. BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS
NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), (E) OUTSIDE
THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER
THE ACT OR (F) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
UNDER THE ACT (IF AVAILABLE) (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO
WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN THREE YEARS AFTER
ORIGINAL ISSUANCE OF THIS NOTE, IF THE PROPOSED TRANSFEREE IS AN ACCREDITED
INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND
THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER
OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM OR IN A TRANSACTION NOT SUBJECT TO THE
REGISTRATION REQUIREMENTS OF THE ACT. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM
BY REGULATION S UNDER THE ACT.
B-1
114
[FORM OF ASSIGNMENT FOR 144A NOTE]
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Agent to transfer this Note on the books of the Company. The Agent may
substitute another to act for him.
[Check One]
[ ] (a) this Note is being transferred in compliance with the
exemption from registration under the Securities Act
provided by Rule 144A thereunder.
or
[ ] (b) this Note is being transferred other than in
accordance with (a) above and documents are being
furnished which comply with the conditions of
transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or Registrar shall not
be obligated to register this Note in the name of any person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.17 of the Indenture shall have
been satisfied.
Date: Your Signature:
------------------ -------------------------------------
-----------------------------------------------------
--------------------------------------------------------------------------------
(Sign exactly as your name appears on
the other side of this Note)
Signature Guarantee:
-----------------------------------------------------
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115
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:
------------------------ -----------------------------------------
NOTICE: To be executed by an executive
officer
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EXHIBIT C
[FORM OF LEGEND FOR REGULATION S NOTE]
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, UNLESS SO
REGISTERED, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, U.S. PERSONS UNLESS REGISTERED UNDER THE SECURITIES
ACT OR EXCEPT PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT
TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
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[FORM OF ASSIGNMENT FOR REGULATION S NOTE]
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Agent to transfer this Note on the books of the Company. The Agent may
substitute another to act for him.
[Check One]
[ ] (a) this Note is being transferred in compliance with the
exemption from registration under the Securities Act
provided by Rule 144A thereunder.
or
[ ] (b) this Note is being transferred other than in
accordance with (a) above and documents are being
furnished which comply with the conditions of
transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or Registrar shall not
be obligated to register this Note in the name of any person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.17 of the Indenture shall have
been satisfied.
Date: Your Signature:
------------------ -------------------------------------
-----------------------------------------------------
(Sign exactly as your name appears on
the other side of this Note)
Signature Guarantee:
-----------------------------------------------------
C-2
118
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:
------------------ ---------------------------------------
NOTICE: To be executed by an executive
officer
C-3
119
EXHIBIT D
[FORM OF LEGEND FOR GLOBAL NOTE]
Any Global Note authenticated and delivered hereunder shall
bear a legend (which would be in addition to any other legends required in the
case of a Restricted Note) in substantially the following form:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN
THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE
(OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE
OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY (A NEW YORK CORPORATION) ("DTC") TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IT REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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EXHIBIT E
Form of Certificate to Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
___________, ____
Attention:
Re: Booth Creek Ski Holdings, Inc. (the "Company") 12
1/2% Senior Notes due 2007 (the "Notes")
Dear Sirs:
In connection with our proposed purchase of Notes, we confirm
that:
1. We understand that any subsequent transfer of the
Notes is subject to certain restrictions and conditions set
forth in the Indenture dated as of March 15, 1997 relating to the
Notes and we agree to be bound by, and not to resell, pledge or
otherwise transfer the Notes except in compliance with, such
restrictions and conditions and the Securities Act of 1933, as amended
(the "Securities Act").
2. We understand that the Notes have not been registered
under the Securities Act, and that the Notes may not be offered, sold,
pledged or otherwise transferred except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts
for which we are acting as hereinafter stated, that if we should sell
any Notes, we will do so only (i) to the Company or any subsidiary
thereof, (ii) pursuant to an effective registration statement under the
Securities Act, (iii) in accordance with Rule 144A under the Securities
Act to a "qualified institutional buyer" (as defined in Rule 144A),
(iv) to an institutional "accredited investor" (as defined below) that,
prior to such transfer, furnishes (or has furnished on its behalf by a
U.S. broker-dealer) to you a signed letter containing certain
representations and agreements relating to the restrictions on
E-1
121
transfer of the Notes, (v) outside the United States to persons other
than U.S. persons in offshore transactions meeting the requirements of
Rule 904 of Regulation S under the Securities Act, or (vi) pursuant
to any other exemption from registration under the Securities Act (if
available), and we further agree to provide to any person purchasing
any of the Notes from us a notice advising such purchaser that resales
of the Notes are restricted as stated herein.
3. We understand that, on any proposed resale of any
Notes, we will be required to furnish to you and the Company such
certifications, legal opinions and other information as you and the
Company may reasonably require to confirm that the proposed sale
complies with the foregoing restrictions. We further understand that
the Notes purchased by us will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the
Securities Act) and have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and
risks of our investment in the Notes, and we and any accounts for which
we are acting each are able to bear the economic risk of our or their
investment, as the case may be.
5. We are acquiring the Notes purchased by us for our
account or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole investment
discretion.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:
---------------------------------
Authorized Signature
E-2
122
EXHIBIT F
Form of Certificate to Be Delivered
in Connection with Transfers
Pursuant to Regulation S
__________, ____
Attention:
Re: Booth Creek Ski Holdings, Inc. (the "Company") 12 1/2%
Senior Notes due 2007 (the "Notes")
Dear Sirs:
In connection with our proposed sale of $__________ aggregate
principal amount of the Notes, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the U.S. Securities Act
of 1933, as amended (the "Securities Act"), and, accordingly, we represent
that:
(1) the offer of the Notes was not made to a U.S. person
or to a person in the United States;
(2) either (a) at the time the buy offer was originated,
the transferee was outside the United States or we and any person
acting on our behalf reasonably believed that the transferee was
outside the United States, or (b) the transaction was executed in, on
or through the facilities of a designated off-shore securities market
and neither we nor any person acting on our behalf knows that the
transaction has been pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the
United States in contravention of the requirements of Rule 903(b) or
Rule 904(b) of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer
restrictions applicable to the Notes.
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123
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate
have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
----------------------------------
Authorized Signature
F-2
124
EXHIBIT G
[FORM OF GUARANTEE]
Each of the undersigned (the "Guarantors") hereby jointly and
severally unconditionally guarantees, to the extent set forth in the Indenture
dated as of March 18, 1997 by and among Booth Creek Ski Holdings, Inc., as
issuer, the Guarantors, as guarantors, and Marine Midland Bank, as Trustee (as
amended, restated or supplemented from time to time, the "Indenture"), and
subject to the provisions of the Indenture, (a) the due and punctual payment of
the principal of, and premium, if any, and interest on the Notes, when and as
the same shall become due and payable, whether at maturity, by acceleration or
otherwise, the due and punctual payment of interest on overdue principal of,
and premium and, to the extent permitted by law, interest, and the due and
punctual performance of all other obligations of the Company to the Noteholders
or the Trustee, all in accordance with the terms set forth in Article 10 of the
Indenture, and (b) in case of any extension of time of payment or renewal of
any Notes or any of such other obligations, that the same will be promptly paid
in full when due or performed in accordance with the terms of the extension or
renewal, whether at stated maturity, by acceleration or otherwise.
The obligations of the Guarantors to the Noteholders and to
the Trustee pursuant to this Guarantee and the Indenture are expressly set
forth in Article 10 of the Indenture and reference is hereby made to the
Indenture for the precise terms and limitations of this Guarantee.
BOOTH CREEK SKI ACQUISITION CORP.
TRIMONT LAND COMPANY
SIERRA-AT-TAHOE, INC.
BEAR MOUNTAIN, INC.
MOUNT CRANMORE SKI RESORT, INC.
WATERVILLE VALLEY SKI RESORT, INC.
SKI LIFTS, INC.
GRAND TARGHEE INCORPORATED
B-V CORPORATION
TARGHEE COMPANY
TARGHEE SKI CORP.
By:
------------------------------------
Name:
Title:
G-1
