TC Res. No. 1986-16f
TOWN OF AVON, COLORADO
RESOLUTION NO. 86-16
Series of 1986
0
A RESOLUTION SUPPLEMENTING ORDINANCE NO. 86-17, SERIES
OF 1986; DETERMINING THE PRINCIPAL AMOUNT, BOND
NUMBERS, PROVISIONS FOR REDEMPTION AND 'MATURITIES OF,
AND RATES OF INTEREST ON $2,700,000 OF THE TOWN'S
SPORTS FACILITIES REVENUE REFUNDING BONDS (BEAVER CREEK
ASSOCIATES PROJECT), SERIES 1986; DETERMINING REVENUES
TO BE PAID FOR SUCH PROJECT; AUTHORIZING INCIDENTAL
ACTION; AND REPEALING INCONSISTENT ACTIONS.
WHEREAS, the Town Council by Ordinance No. 81-23,
Series of 1981, approved a sports and recreational facilities
project (the "Project") for Beaver Creek Associates, Inc. (the
"Company") pursuant to the County and Municipality Development
Revenue Bond Act (the "Act") and issued $2,700,000 aggregate
principal amount of Sports Facilities Revenue Bonds (Beaver Creek
Associates Project), Series 1981 (the "1981 Bonds") which have
been called for redemption on September 1, 1986 pursuant to the
terms of the Trust Indenture under which such 1981 Bonds were
issued; and
WHEREAS, the Town Council by Ordinance No. 86-17,
Series of 1986, finally passed July 22, 1986, approved the
refinancing of the Project and its related costs pursuant to the
Act; and
WHEREAS, the Town has approved a Sports Facilities
Refinancing Agreement dated as of August 1, 1986 (the
"Agreement") with the Company and has determined to refinance the
Project and its related costs by the issuance and delivery of
$2,700,000 in aggregate principal amount of its bonds to be known
as "Sports Facilities Revenue Refunding Bonds (Beaver Creek
Associates Project), Series 1986" (the "Bonds"), to RepublicBank
Dallas, National Association (the "Lender") which Bonds are to be
guaranteed by Vail Associates, Inc.; and
WHEREAS Ordinance No. 86-17, Series of 1986, authorized
the issuance of the Bonds and the determination of final terms
thereof by subsequent resolution of the Town Council.
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF
THE TOWN OF AVON, COLORADO, that:
Section 1. APPROVAL OF AGREEMENT. The form of the
Agreement among the Town, the Company and the Lender presented to
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this meeting (copies of which shall be filed with the records of
the Town) are hereby approved, and the Mayor of the Town (the
"Mayor") is hereby authorized to execute and deliver, and the
Town Clerk of the Town (the "Clerk") is hereby authorized to
affix the seal of the Town where appropriate to, and attest, such
documents in substantially such form and upon the terms and
conditions set forth herein and therein, with such changes
therein as such officers shall approve (including changes in
dates and amounts necessary to conform such documents to the
final terms as approved by the Company and the Lender), such
approval to be evidenced by their execution thereof. The
appointment of First Interstate Bank of Denver, N.A., as Escrow
Agent under the Agreement, is hereby confirmed.
In accordance with the requirements of the Act, the
Town hereby determines that the following provisions shall be as
set forth in the form of Agreement hereinbefore approved, which
form is hereby incorporated herein by reference as if set forth
in full:
(a) Custody of the proceeds from the sale of the
Bonds, including their investment and reinvestment until
used to-defray the costs of refinancing the Project;
(b) The creation of funds or accounts into which
any Bond proceeds, revenues and income may be deposited or
created;
(c) Limitation on the purpose to which proceeds
of any Bonds may be applied;
(d) Limitation on the issuance of additional
bonds, the refunding of Bonds and the replacement of Bonds;
(e) The procedure by which the terms of any
contract with Bondholders may be amended or abrogated;
(f) Vesting 'in the Lender such properties,
rights, powers and duties as the Issuer determines and
limiting the rights, duties and powers of the Lender;
(g) The rights and remedies available in case of
a default to the Lender under the Agreement;
(h) The fixing and collection of revenues from
the Project; and
(i) The maintenance and insurance of the Project.
Section 2.
TERMS
OF BONDS.
The
Bonds
shall
be-dated
as of their actual
date of
delivery,
shall
be in
the
aggregate
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principal amount of $2,700,000, and shall be issued in
typewritten, fully registered form. The Bonds shall mature,
subject to prior prepayment, on September 1, 1996.
All prepayment.'.provisions of the Bonds shall be as
j contained in the form of Agreement previously approved, the terms
( of which are hereby reconfirmed.
The interest rate on the Bonds shall be determined as
follows:
Determination of Variable Interest Rate. The Bonds
shall bear interest from the date of delivery at an annual per
centum rate equal to the Variable Rate ("Variable Rate"),
calculated on the basis of a 3607day year and in accordance with
the Agreement, determined by the following formula:
Variable Rate [Base Rate + ,1.786]-[Base Rate x
(1.00-S)x R]
As used in the Bonds, the following terms shall have
the meaning set forth below:
"Prime Rate" means the prime rate of interest
(expressed as a percentage) of RepublicBank Dallas, National
Association as declared from time to time by.RepublicBank Dallas,
National Association, it being understood that such prime rate
may not be the lowest rate of interest charged by RepublicBank
Dallas, National Association.
"Base Rate" means the Prime Rate minus 1.00.
"Interest Period" means, with respect to any part of
the outstanding principal of the Bonds bearing interest at a
Fixed Rate, a quarterly period with interest payable on the first
day of each March, June, September and December.
"Maximum Amount" means the maximum amount of interest
which, under applicable law, the Lender is permitted to charge on
the outstanding principal of the Bonds.
"R" means the highest marginal income tax rate
(expressed as a decimal) imposed on the taxable income of
corporations pursuant to Section 11 or any successor provisions
of the Internal Revenue Code of 1954, as amended (the "Code"),
with respect to the taxation of income of national banks.
"S" means the percentage exclusion (expressed as a
decimal), for financial institution preference items pursuant to
(a) Section 291(~a)(3) of the Code or any successor or similar
provision, or (b) any other provision enacted after May 1, 1985,
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limiting the deductibility to the registered owner of the Bonds
of interest incurred in connection with the acquiring or owning
of tax exempt bonds, as in effect from time to time.
Notwithstanding the foregoing, neither the Variable
rate nor the Fixed Rate (as hereinafter defined) shall ever
exceed a rate that would cause the net effective interest rate
from the date of initial delivery of the Bond to the date of
maturity or earlier prepayment of the Bond to exceed the lesser
of (a) 45% per annum or (b) the maximum rate permitted by law
(the "Maximum Rate").
Determination of Fixed Interest Rate. Prior to
September 1, 1991, at the option of the Company and subject to
certain conditions set forth in the Bonds, the interest on the
Bonds may be converted to a Fixed Rate ("Fixed Rate") to be
calculated in accordance with the following formula:
Fixed Rate = [ Fixed Base Rate + 1.786%] - [ Fixed Base
Rate x (1.00-S) x R]
"Fixed Base Rate" means a rate, of interest per annum
equal to 105% of the rate of interest'stated as the current U.S.
Treasury Notes and Bonds - Constant Maturities, for like
maturities, set forth in the most recent, publication of the
weekly Federal Reserve Statistical' Release of Selected Interest
Rates, Publication Number H-15(519), published each week by the
Federal Reserve Board of Governors (or any successor publication
published by the Federal Reserve Board of Governors).
Section 3. DETERMINATION OF REVENUES. In accordance
with the Act, it is hereby determined that (a) no amount is
necessary for payment into any reserve fund for retirement of the
Bonds and maintenance of the Project and (b) the Company shall be
required under the terms of the Agreement to pay all taxes levied
by the State of Colorado and local taxing bodies with respect to
the Project. It is hereby determined that, based on the maximum
interest rate of 45% per annum, no more than the following
amounts will be necessary for the payment of principal and
interest on the Bonds:
Year Ending September 1 Year Ending September 1
1987
$1,215,000
1992
$1,215,000
1988
1,215,000
1993
1,215,000
1989
1,215,000
1994
1,215,000
1990
1,215,000
1995
1,215,000
1991
1,215,000
1996
3,915,000
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Section 4. INCIDENTAL ACTION. The Mayor, Town
Manager, Finance Director and Town Clerk of the Town are hereby
authorized and directed to execute and deliver such other
documents, including acceptances and conveyances of property
interests, and to take such other action as may be necessary or
appropriate in order to effectuate the execution and delivery of
the aforesaid Agreement, (including the approval of changes in
such documents which the Town's counsel approves and which do not
alter the basic terms and substance of the proposed transactions,
such approval to be evidenced by the execution by such officers),
the performance of the Town's obligations thereunder, and the
issuance and delivery of the Bonds to the Lender, all in
accordance with the foregoing Sections hereof and the provisions
of Ordinance No. 86-17, Series of 1986.
Section 5. REPEALER. All acts, orders, resolutions,
or parts thereof, taken by the Town in conflict with this
Resolution are hereby repealed, except that this repealer shall
not be construed so as to revive any act, order, resolution, or
part thereof, heretofore repealed.
Section 6. RESOLUTION IRREPEALABLE. After the Bonds
are issued and outstanding, this Resolution shall constitute a
contract between the Town and the Lender or other owner of the
Bonds, and shall be and remain irrepealable until the Bonds and
the interest accruing thereon shall have been fully paid,
satisfied and discharged.
Section 7. SEVERABILITY. If any paragraph, clause or
provision of this Resolution is judicially adjudged invalid or
unenforceable, such judgment shall not affect, impair or
invalidate the remaining paragraphs, clauses or provisions
hereof, the intention being that the various paragraphs, clauses
or provisions hereof are severable.
Section 8. EFFECTIVE DATE. This Resolution shall take
effect immediately upon its passage.
INTRODUCED, READ, APPROVED AND ADOPTED, THIS 12th day
of August, 1986.
[TOWN]
[SEALS
eputy~Town C1er1k
Town of Avon, Colorado
LIC,
Mayor Allan Nott
Town of Avon, Color
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STATE OF COLORADO )
COUNTY OF EAGLE ) ss.
TOWN OF AVON )
The Town Council of the Town of Avon, Colorado, met in
regular session at the Avon Municipal Building, the regular
meeting place thereof in the Town, on Tuesday, the 12th day of
August, 1986, at the hour of 7:30 p.m.
The following members of the Town Council were present:
Mayor:
Mayor Pro Tem:
Council Members:
Allan R. Nottingham
Sheila R. Davis
Don Buick
Al Connell
Steve Miller
Clint Watkins
Gloria McRory
No members of the Town Council were absent.
The following persons were also present:
Town Manager: William James
Town Attorney: Arthur A. Abplanalp, Jr.
Town Clerk: Barbara Joseph, Deputy
The Mayor announced that one of the purposes of the
meeting was to be the consideration of a resolution supplementing
Ordinance No. 86-17, Series of 1986, authorizing the issuance by
the Town of'Sports Facilities Revenue Refunding Bonds (Beaver Creek
Associates Project), Series 1986, in the aggregate principal
amount of $2,700,000, and the execution of various documents in
connection therewith.
The Mayor further-announced that, in accordance with
Federal tax law relating to the bonds, a notice of public hearing
had been published twice in The Vail Trail, a newspaper of
general circulation in the Town of Avon and Eagle County, in its
issues dated July 11, 1986 and July 18, 1986.
D6612 1 08/11/86
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Thereupon, at approximately 9:00 p.m., a public hearing
was held and all interested persons present were heard by the
Town Council.
Thereupon, the following proceedings, among -others,
were had and taken:
Mayor Allan Nottingham introduced the following
Resolution, which was read by title, sufficient copies having
previously been made available to the Council and to the public:
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0
Council Member Sheila Davis moved that the foregoing
Resolution heretofore introduced and read by title be approved. -
Council Member Al Connell seconded the motion, and
the question being upon the approval of the Resolution,a vote
was called with the following results:
Council Members voting "YES":
Mayor: Allan R. Nottingham
Mayor Pro Tem: Sheila R. Davis
Council Members:
Council Members voting "NO":
Steve Miller
Donald Buick
Gloria McRory
Al Connell
Clint Watkins
NONE
7 members of the Town Council present having voted
in favor thereof, the Mayor thereupon declared the motion was
carried and the Resolution duly approved.
Thereupon, the Mayor directed that the Resolution be
numbered and recorded in the official records of the Town.
After consideration of other business to come before
the Town Council, the meeting was adjourned.
(TOWN) Mayor Al an R. Nott' gham
(SEAL) Town of Avon, Colorado
ATTEST:
eputy Town Clerk
Town of Avon, Colorado
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08/11/86
PROCEEDINGS OF THE TOWN COUNCIL OF
THE TOWN OF AVON, COLORADO
RELATING TO
SPORTS FACILITIES REVENUE REFUNDING BONDS
(BEAVER.CREEK ASSOCIATES PROJECT)., SERIES 1986
IN A PRINCIPAL AMOUNT NOT TO EXCEED $2,700,000
s
LAW OFFICES
BALLARD, SPAHR, ANDREWS $ INGERSOLL
SEVENTEENTH STREET PLAZA BUILDING
SUITE 2300
1225 17TH STREET
DENVER, COLORADO 80202
303 292-2400
TELECOPIER:303 296-3956
NIKI FRANGOS TUTTLE
August 11, 1986
Mr. William James
Town Manager
Avon Municipal Building
400'Benchmark Rd.
Avon, Colorado 81620
30 SOUTH 17TH STREET
PHILADELPHIA, PA. 19103
215 S64-1800
TELECOPIER:215 496-0318
TELEX: 83-4532
SUITE 1100
1850 K STREET, N. W.
WASHINGTON, D. C. 20006
202 466-5800
TELEX: 90-4185 _
Re: Town of Avon/Beaver Creek Associates_
1981 Refunding Bonds
Dear Mr. James:
At-the request-of-Gerry Flynn, I have enclosed for
distribution.to the Avon Town Council Members 10 copies of the
proceedings relating to a resolution supplementing Ordinance
No. 86-17, Series of 1986, to,be considered by the Avon Town
Council at its meeting tomorrow night. I have also enclosed the
most recent draft of the Avon Sports Facilities Refinancing
Agreement which has been blacklined to reflect changes from the
earlier draft.
Thank you for your assistance in this matter.
Best regards,
- j -
Niki Frangos Tuttle
Enclosures
to
cc: Gerald Flynn
John M. Gardner, Esq.
' 2~~'~~1
4td,t~iA~! ~~'v~N~
_ - r~'r"i ~xa,~?,fang.: i,~
t`J:a:~wy~i~`i:,~~.
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~i ,df
I rV
11 l/~~~~ ! ' _ _
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A1136 O acAines indicate revisions"
08/06/86
SPORTS FACILITIES REFINANCING AGREEMENT
Among
TOWN OF AVON, COLORADO,
BEAVER CREEK ASSOCIATES, INC.
and
REPUBLICBANK DALLAS, NATIONAL ASSOCIATION
Dated as of August 1, 1986
TABLE OF CONTENTS
Page
I. Background, Representations and Findings. _
Section 1.1 Background 1
Section 1.,2 Company Representations I 2
Section 1.3 Issuer,Findings and Representations....... 2
II. The Project Facilities.
Section 2.1 Title to Project Facilities 3
Section 2.2 'Additions and Changes to the Project
Facilities 3
Section 2.3 Notices and Permits 3
III. Refinancing the Project Facilities.
Section
3.1
Issuance of Bonds
4
Section
3.2
Delivery of the Bonds
4
Section
3.3
Lender's Representation
4
Section
3.4
Conditions of Closing
4
Section
3:5
Redemption Fund
5
Section
3.6
Payments from Redemption Fund
6
Section
3.7
Investment or Deposit of Redemption Fund..
7
Section
3.8
Concerning the Escrow Agent
8
Section
3.9
Bonds Not to Become Arbitrage Bonds.......
8
Section
3.10
Restriction on the Use of Proce'ed's........
9
IV. Loan and Repayment.
Section
4.1
Amount and Source of Loan
9
Section
4.2
Repayment of Loan
9
Section
4.3
Company Notes
9
Section
4.4
Acceleration of Payment-to Prepay Bonds...
10
Section
4.5
No Defense or Setoff......................
11
Section
4.6
Assignment of Issuer's Rights;
Security Agreement
11
V. Covenants of the Company.
Section
5.1
Corporate-Existence
12
Section
5.2
Maintenance of Project Facilities;
Insurance
12
Section
5.3
Payment of Issuer's Expenses.
12
Section
5.4
,
Indemnity Against Claims..._
13
Section
5.5
Payments in Lieu of Taxe-s
13
Section
5.6-
Recording and Filing........
13
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Pace
VI. Events of Default and Remedies.
Section
6.1
Events of Default .
14
Section
6.2
Payment on Default; Suit Therefor.........
15
Section
6.3
Cumulative Rights
16
VII. Miscellaneous.
Section
7.1
Notices
17
Section
7.2
- Disclaimer; Limitation of Liability of
Issuer
17
Section
7.3
Assignments
18
Section
7.4
Illegal, etc., Provisions Disregarded......
18
Section
7.5
Applicable Law
18
Section
7.6
Amendments....
18
Section
7.7
Term of Agreement
18-
Section
7.8
Joinder of Escrow Agent
. 18'
Section
7.9
Other Documents
18
EXECUTION
.
19
JOINDER
BY
ESCROW AGENT
20
SCHEDULE A
- Project Facilities Description
A-1
SCHEDULE B
- Form of-Sports Facilities Note..............
B-1
SCHEDULE C
- Form of Series 1986 Bond
C-1
A1136 ii - 08/06/86
SPORTS FACILITIES REFINANCING AGREEMENT, dated as of
August 1, 1986 (the "Agreement") among TOWN OF AVON, COLORADO, a
municipal corporation and political subdivision of the State of
Colorado and a body corporate and politic (the-"Issuer"), BEAVER
CREEK ASSOCIATES, INC., a corporation organized and existing
under the laws of the State of Colorado (the "Company") and
REPUBLICBANK DALLAS, NATIONAL ASSOCIATION, a banking association
organized and existing under the laws of the United States of
America ( herein referred to, together with any successors or
assigns, as the "Lender").
I. Background, Representations and Findings.
1.1 Background. The Issuer is a municipal corporation
and political subdivision of the State of Colorado and a body
corporate and politic, duly organized and existing under the
Constitution and laws of the State of Colorado, and has adopted a
home rule charter in conformity with the Colorado Constitution
and the Colorado Municipal Home Rule Act of 1971. Pursuant to
the County and Municipality Development Revenue Bond Act (the
"Act"), the Issuer is authorized and empowered to issue its
revenue refunding bonds to provide funds to- refinance certain
improvements, including sports and recreational facilities.
At the request of the Company, the Issuer previously
has undertaken a project consisting of the financing of public
recreation and sports facilities for the Company's skiing and
mountain related operations on Beaver Creek Mountain in the White
River National Forest (such facilities, including any-additions
and changes made by the Company from time to time pursuant to
Section 2.2 of this Agreement, being referred to collectively as
the "Project Facilities"), by the issuance of Sports Facilities
Revenue Bonds (Beaver Creek Associates Project), Series 1981, in
the aggregate principal amount of $2,700,000 (the "1981 Bonds").
The 1981 Bonds were issued pursuant to'a Trust Indenture dated as
of September 1, 1981 (the "1981 Indenture"), between the Issuer
and The First National Bank of Denver (now First Interstate Bank
of Denver, N.A.), as trustee (the "1981 Trustee"). Under the
terms of the 1981 Indenture, the 1981 Bonds have been called for
redemption at 100% of the principal amount thereof on
September 1, 1986. Substantially all the land on which the
Project Facilities are located and used is owned by the United
States of America, and is used by the Company pursuant to a
United States Forest Service Term Special Use Permit and a
Special Use Permit, both dated January 29, 1980 (such permits,
together with any similar agreements, as modified or amended from
time to time being hereafter referred to collectively as the
"Special Use Permit"). The Project Facilities are generally
described in Schedule A to this Agreement.
A1136 1 08/06/86
The Company has requested the Issuer to refinance the
Project Facilities by issuing its Sports Facilities Revenue
Refunding Bonds (Beaver Creek Associates Project), Series 1986
(the "Bonds"). The proceeds of the Bonds will be applied to pay
the Costs of refinancing the Project Facilities and refunding the
1981 Bonds.
The Project
recreational facilities"
facilities" -for the pui
Internal Revenue Code of
interest on such bonds is
holders thereof under the
that:
Facilities constitute "sports and
for purposes of the Act and "sports
-poses of Section 103(b)(4)(B) of the
1954, as amended (the "Code"), so that
not included in the gross income of the
Code.
1.2 Company Representations. The Company represents
(a) It is a corporation duly organized and
existing in good standing under the laws of the State of
Colorado,'with full power and legal right to enter into this
Agreement and the Notes referred to in Section 4.3 hereof
and to perform its obligations hereunder and, thereunder.
The making and performance of this Agreement and the Notes
on the Company's part have been duly authorized by all
necessary corporate action and approved by all necessary
governmental authorities and will not violate or conflict
with the Company's Articles of Incorporation, By-Laws or any
agreement, indenture or other instrument, regulation or
order by which the Company or its properties are bound.
(b)A The Company operates the Project Facilit
as a commercial or business enterprise and a sports
recreational facility; being available for use.by,members
the Qeneral public either as participants.=or spectators:
1.3 Issuer Findings and Representations. The Issuer
hereby:
(a), Confirms its findings that the Project
Facilities constitute a "project" for purposes of the Act in
that they consist of,properties, other than inventories, raw
materials or other working capital, suitable or to b'e used
for or in connection with a sports and recreational
facility.
(b) Confirms its findings that the Issuer's
refinancing of the Project Facilities and the refunding of
the 1981 Bonds will promote the public purposes of the Act
and the public health, welfare, safety, convenience and
prosperity of the inhabitants of Colorado.
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(c) Represents that the Issuer has the necessary
power under the Act and its Home Rule Charter, and has duly
taken all action on its part required, to execute and
deliver this Agreement and to undertake the refinancing of
the Project Facilities'and the refunding,of the 1981 Bonds
through the issuance of its Bonds. The execution and
performance of this Agreement by the Issuer will not violate
or conflict with any instrument by which the Issuer or its
properties are bound.
II. The Project Facilities.
2.1 Title to Project Facilities. As between the
Issuer and the Company, the Company shall continue to be the sole
owner of the Project Facilities and the Issuer' shall have no
title thereto. The Company will be entitled to physical
possession and control of the Project Facilities at all times and
will be liable at all such times for all risk, loss and damages
with respect to such Project Facilities.
2.2 Additions and Changes to Project Facilities. The
Project Facilities have been completed. Subject to the
applicable provisions of the Act, the Company may-make additions
to, deletions from and changes in the Project Facilities from
time to time and will supplement -the information contained in
Schedule A by filing with the Issuer and the Lender such
supplemental information as is necessary to reflect the same so
that the Issuer and the Lender will be able to ascertain the
nature and cost of the facilities covered by this Agreement. In
the event the Company determines to acquire, construct or install
additional facilities at the site of the Project Facilities or
elsewhere in the Town of Avon or in the Beaver Creek Mountain
complex, and if, prior to commencement thereof, the Issuer
approves the acquisition, construction, installation , and
financing of such facilities, such additional facilities may be
financed with the proceeds of additional bonds of the Issuer;
provided that nothing contained in this Section 2.2 shall require
the issuer to grant such approval nor limit the Company's right
to acquire, construct and install any additional facilities not
financed by the Issuer.
2.3 Notices and Permits. The Company shall give or
cause to be
all laws,
requirements
conduct of
maintenance
defend and
past, prese
given all notices and comply or cause compliance with
ordinances, municipal rules and regulations and
of public authorities applying to or affecting the
the construction, modification, operation or
of the Project Facilities, and the Company, will
save the Issuer, its officers, agents and employees,
nt and future, and the Lender, its officers, agents
A1136 3 08/06/86
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and employees, past, present and future, harmless from all fines
due to failure to comply therewith.
III. Refinancing the Project Facilities.
3.1 Issuance of Bonds. In order to refinance the
Project Facilities, the Issuer, upon request of the Company, will
issue and sell $2,700,000 aggregate principal amount of the
Bonds. The proceeds of the Bonds shall be loaned to the Company
in accordance with Section 4.1 hereof. The Bonds will be issued
and delivered to the Lender; will be in the form of Bond attached
hereto as Schedule C; and will be payable solely from the
revenues of the Issuer derived from the Notes and otherwise under
this Agreement.
- 3.2 Delivery of the Bonds. On the terms - and
conditions set forth herein, the Lender shall accept from the
Issuer, and the Issuer shall deliver to the Lender, the aggregate
principal amount of Bonds. The price shall be 1000X of the
principal amount, plus interest, if any, accrued to the closing
date, payable in immediately available funds to the Escrow Agent
named herein for the account of the Issuer. Closing (the
"Closing") will'be at the offices of Ballard, Spahr, Andrews &
Ingersoll, Denver, Colorado, at 9:00 A.M. prevailing local time
on August 29, 1986, or at such other place or other date or time
as may be agreed to by the parties hereto. The Bonds will be
delivered in typewritten, fully registered form.
3.3 Lender's Representation. The Lender represents
that it has such knowledge and experience in financial and
business matters, that it is capable of evaluating the-merits and
risks of its purchase of the Bonds, that it has been afforded the
opportunity to make inspections,. appraisals and inquiries of the
Company and its officials concerning the business and operations
of the Company and the Project Facilities, that it has been
provided with such information as it has reasonably requested'and
considers relevant to making its purchase, that it has received
and reviewed the Agreement, the Bonds and the Note and that it
does not intend to, and will not, make anpub_lic- offering of the
Bonds nor transfer 'the Bonds except to another financial
institution.
3.4 Conditions of Closing. The Lender's obligation to
purchase the Bonds is subject to fulfillment of the following
conditions at or before Closing:
(a) The Issuer's and the Company's
representations hereunder shall be true on and as of the
Closing date.
A1136 4 08/06/86
(b) The Lender shall have received:
(i) a Guaranty by the Company and Vail
Associates, Inc. in such form and with respect to such
matters as shall be satisfactory to the Lender;_
(ii)
affiliates of
to the'Lender;
Guaranties of such subsidiaries
Vail Associates,- Inc. in such form
such matters as shall be satisfac
(iii) A such collateral documents evidencing a
security interest on the part of the Lender in property
of the Company as shall be satisfactory to-the Lender:
iv opinion of Ballard, Spahr, Andrews &
Ingersoll, bond counsel, with respect to such matters
as shall be satisfactory to the Lender;
A (v) opinion of John Dunn, Esquire, counsel
to the Issuer, with respect to such matters as shall be
satisfactory to the Lender;
(vi) opinion of Holme, Roberts & Owen,
counsel o e Company, with respect to such matters as
shall be satisfactory to the Lender;
(vii) such additional documents as the Lender
or bond counsel may reasonably request to evidence
compliance with applicable law and the validity of the
Bonds, the-Agreement and the Note, and to evidence'that
the interest on the Bonds is not includable in gross
income under the Code.
3.5 Redemption Fund. The Issuer hereby establishes a
Redemption Fund for payment of the Costs (as hereinafter defined)
of the Project Facilities. The Redemption Fund shall be
maintained withNFirst Interstate Bank of Denver, N-.A., as Escrow
Agent (the-"Escrow Agent"). The Redemption Fund shall consist of
the proceeds of the Bonds and any other amounts the Issuer or the
Company may deposit therein.
The Escrow Agent shall, through,the establishment of a
separate investment income account or otherwise as may be
expedient, maintain such records so that the income from
investments and interest earned on deposits of amounts held in
the Redemption Fund may be, ascertained. Such income or interest
may be expended-at any time or from time to time to pay Costs of
the Project Facilities in the same manner as other moneys
deposited in the Redemption Fund may be expended.
A1136 5 08/06/86
The terms "Cost" or "Costs" as used herein shall mean
any cost of refinancing the Project Facilities permitted under
the Act. Without limiting the generality of the foregoing, such
costs may include payment or reimbursement to the Company of the
costs and expenses of refunding the 1981 Bonds, including fees -
and expenses of the Lender, the 1981 Trustee and the Escrow
Agent, and legal and accounting fees.
3.6 Payments from Redemption Fund. The Escrow Agent
shall pay, by wire transfer in immediately available funds, to
Wells Fargo Bank, National Association (the "Bank"), from
available moneys in the Redemption Fund, $2,700,000 upon request
of the Company, signed by the President, any Vice President or
the Treasurer of the Company, and upon -receipt by the Escrow
Agent of a certificate from the 1981 Trustee evidencing that the
1981 Trustee:
- (a) acknowledges receipt of all amounts necessary
to pay in full the 1981 Bonds;
(b) confirms that it
for redemption at 100% of the
September 1, 1986 in accordance
1981 Indenture;
(c) confirms that the 1981 Bonds are no longer
outstanding under the 1981 Indenture; and
(d) confirms that Wells Fargo Bank, National
Association, Letter of Credit No. 13225.(the "Letter-of
Credit")_ issued by Wells Fargo Bank, National Association,
San Francisco, California (the "Letter of Credit Bank") to
the Trustee dated September 15, 1981, has been drawn upon
the Stated Amount (as such term is defined in the'Letter of
Credit) or otherwise terminated; and
has called the 1981 Bonds
principal amount thereof on
with the requirements of the
(e) releases (i) the 1981
Beaver,Cree Associates, Inc., Sports
September 1, 1981 (the "1981 Note")r
covered by the Security Acrreement~
s
r
Indenture, (ii) the
Facilities Note dated
Collateral which is
etter of Credit
re and Assignment
r of Credit Bank ar
a
ran
Agreement between the Company and the
dated as of September 1, 1981, and fro
loan repayments and other payments
Facilities Financing Agreement dated
~Tr e
Vail ~emWI
ustee IM) and 44,
)ciates, Inc. from its
er 1, 1981,x( eo . ) the
r the Reimbursement
Letter of Credit-Bank
m obligations to make
due under the Sports
as of September 1,
A1136 6 08/06/86
0 •
1981, (the "1981 Agreement") between the Issuer and the
Company or under the 1981 Indenture.
Any amounts remaining in the Redemption Fund after payment to the
Bank shall be paid by the Escrow Agent at the request and
direction of the Company for other Costs. Upon payment of and
accounting for all balances in the Redemption Fund, such Fund
shall be closed and the Escrow Agent discharged from its duties
hereunder.
3.7 Investment or Deposit of Redemption Fund. All
moneys received by the Escrow Agent under this Agreement for
deposit in the Redemption Fund shall, until or unless invested
as hereinafter provided, be held by the Escrow Agent as a deposit
in the trust department. If at any time the Escrow, Agent is
unwilling to accept such deposits, the Escrow Agent may deposit
.such moneys with any other depository which is authorized to
receive them- and is subject to supervision by public banking
authorities.
The Escrow Agent shall, at the written request and
direction of the Company. and with the approval of the Lender,
invest balances in the Redemption Fund not' needed for immediate
application in obligationsh of the types listed below or. deposit
such moneys in time accounts (including accounts evidenced by
time certificates of deposit), which may be maintained with. the
commercial department of the Escrow Agent;, provided that all
investments shall mature or be subject to redemption by the
holder at not less than the principal amount thereof or the cost
of -acquisition, whichever is lower--and all deposits in time
accounts shall be subject to withdrawal--not later than the date
when the amounts will forseeably be needed for purposes of this
Agreement. /The investments permitted hereunder shall include:
(i) obligations issued or guaranteed by the United States of
America; (ii) A obligations rated not less than "A", or equivalent
by Moody's Investors Service, Inc. or Standard and Poor's
Corporation, issued or guaranteed by any state of the United
States, or the District of Columbia, or any political subdivision
of any,such state or District or obligations of a Public Housing
authority fully secured by contracts with -the United States;
ti(iii)_ commercial or finance company paper rated not less than
Prime-One" or "A-1" or their equivalents by Moody's Investors
The interest and income received upon such investments
of the Redemption Fund, any interest paid by the Escrow Agent or
any other depository and any profit or loss resulting from the
Service, Inc. or Standard and Poor's Corporation; and iv
bankers' acceptances drawn on and accepted by commercial banks
having combined capital and surplus of not less than
$00,000,000.
A1136 7 08/06/86
i
sale of any investment
Redemption Fund.
•
shall be added to or borne by the
3.8 Concerning the Escrow Agent. The Escrow Agent:
(i) shall be under no responsibility for the correctness-of any
of the recitals, statements or representations made in this
Agreement; (ii) may exercise any powers hereunder and perform any
duties required of it through attorneys, agents, officers or
employees, and shall be entitled to advice of counsel concerning
all questions hereunder and, except as otherwise provided herein,
shall not be answerable for the exercise of any discretion or
power hereunder nor for anything whatever in connection with the
trust hereunder, except only its own willful misconduct or
negligence; (iii) shall be entitled to reasonable compensation
for its services hereunder in accordance with its then current
fee schedule, and also for its reasonable expenses and
disbursements, and to indemnity against any liabilities incurred
in good faith and without negligence in the exercise and
performance of its power and duties hereunder, all, of which
compensation and indemnity the Company hereby agrees to provide;
(iv) may act on any requisition, resolution, notice, telegram,
request, consent, waiver, certificate, statement, affidavit,
voucher, bond, or other paper or document which it_in good faith
believes to be genuine and to have been passed or signed by the
proper persons or to have been prepared and furnished pursuant to
any of the provisions of this Agreement, and shall be under no
duty to make an investigation as to any statement contained in
any such instrument, but may accept the same as conclusive
evidence of the accuracy of such statement; (v) may in good faith
buy, sell, own, hold and deal in any of the Bonds and may join in
any action which the Lender or any other Bondholder may be
entitled to take with like effect as if it were not a party to
this Agreement, and may also engage in or be interested in any
financial or other transaction with the Issuer or with the
Company; and (vi) shall have the right to resign effective upon
30 days' written notice to the Issuer and the Company.
3.9 Bonds Not to Become Arbitrage Bonds. The Issuer
and the Company hereby covenant for the benefit of the Lender and
all other holders of the Bonds that, notwithstanding any other
provision of this Agreement or any other instrument, they will
neither make nor instruct the Escrow Agent to make any investment
or other use of the Redemption Fund or other proceeds of the
Bonds which would cause the Bonds to be arbitrage bonds under
Section 103(c) of the Code and the regulations thereunder, and
that they will comply with the requirements of such Section and
regulations throughout the term of the Bonds.
The Company will determine the amount of the required
arbitrage rebate, if any, payable to the United States government
under Section 103(c) of the Code and will make any required
A1136 8 08/06/86
• 0
payments, beginning not later than 30 days after the end of the
fifth bond year of the Bonds, regardless of whether there are any
remaining proceeds or other funds attributable to'the Bonds that
are available for the purpose. The Company will not permit the
amount of gross proceeds invested in any bond year at a yield
materially higher than the Bond yield to exceed the limits of
Section 103(c).
3.10 Restriction on Use of Proceeds. The Company shall
not use or direct the use of proceeds of the Bonds in any way, or
take. or omit to take any other action, so as to cause the
interest on any Bonds to become subject to Federal income tax
under the Code as in effect on the date the Bonds are issued.
IV. Loan and Repayment.
4.1 Amount and Source of Loan. Concurrently with the
delivery of the Bonds, the Issuer will, upon the terms and
conditions of this Agreement, lend to the Company, by deposit of
the proceeds thereof with the Escrow Agent in the Redemption
Fund, an amount equal to the aggregate principal amount of the
Bonds for application (as provided in Article III hereof) against
the Costs of refinancing the Project Facilities.n
4.2 Repayment of Loan. "The Company.agrees to repay
the loan made by the Issuer in installments which, as.to amount,
shall correspond to the payments of principal or sinking fund (if
any) on the Bonds and shall bear interest at the rate or rates,
and at the times, payable on the Bonds, whether at maturity, upon
prepayment or acceleration, or otherwise, in accordance with the
terms of the Bonds; provided that such amount shall be reduced to
the extent that other moneys on deposit with the Escrow Agent are
available for such purpose, and a credit in respect thereof has
been granted by the Lender. All such repayments of the,loan will
be made in funds which-will be available to the Lender no later
than the corresponding principal or interest payment date of'the
Bonds. To evidence its obligation to pay such amounts, the
Company will deliver the Notes specified under Section 4.3 below.
4.3 Company Notes. Concurrently with the delivery by
the Issuer of the Bonds, the Company will execute and deliver a
non-negotiable Note in substantially the form of the Series 1986
Note attached hereto as Schedule B, with such variations in
principal amount, interest rate, dates and prepayment provisions
as may be appropriate, the Series 1986 Note and any additional
notes being hereinafter referred to as the "Notes." Each Note
will:
Issuer:
(a) be payable to the Lender as assignee of the
A1136 9 08/06/86
i i
(b) be in a principal amount equal to the
aggregate principal amount of the Bond or Bonds related to
such Note;
(c) provide for payments of interest equal- to the
payments of interest on the related Bonds;/
(d) require payments of principal, or principal
plus a premium, equal to the maturities and/or installment
or sinking fund payments on the related Bonds;
(e) contain provisions in respect of the
prepayment of,principal and premium, if any, identical with
the prepayment provisions of the related Bonds; and
(f) require all payments on the Note to be made
on or prior to the due date for the corresponding payment to
be made on the related Bonds.
4.4 Acceleration of Payment to Prepay Bonds. The
Issuer will prepay any or all series of its Bonds or portions
thereof upon the occurrence of an event which gives rise to any
mandatory-prepayment specified therein. Whenever any series of
Bonds is subject to optional prepayment, the Issuer will, but
only upon'request of the Company, prepay the same in accordance
with such request. In either event, unless such prepayment is
effected in connection with a refunding, the Company will pay an
amount equal to the applicable prepayment price as a prepayment
of the Note corresponding to such series of Bonds or portions
thereof, together with interest accrued to the date of
prepayment.
In the event that (a) it is determined (in an
unqualified opinion of nationally recognized bond counsel
acceptable to the Lender) that interest paid in respect of the
Bonds is includible for federal income tax purposes in the gross
income of an owner or former owner of a Bond,, (other than the
Company or a "substantial user" or a "related person" as those
terms are used in Section 103(b) of the Internal Revenue Code of
1954, as amended), or (b) the Internal Revenue, Service issues a
notice of deficiency or similar notice to any such owner or
former owner assessing a tax in respect of any interest on the
Bonds, or (c) the Internal Revenue Service enters into any
settlement agreement with any such owner or former owner of any
Bonds under which a tax, penalty or interest in respect of any
interest on the Bonds is to be assessed (any event or occurrence
specified in (a), (b) or (c) above being herein referred'to as a
"Determination of Taxability"), then, upon being advised in
writing of the occurrence of such Determination of Taxability,
the Company will pay to the owners and former owners of the Bonds
amounts hereby deemed adequate to pay the owners all unpaid
A1136 10 08/06/86
r:
n
principal of and accrued interest on the Bonds and to
the owners and former owners for all damages
a result of a Determination of Taxability.
suffered
compensate
by them as
4.5 No Defense or Setoff. The obligations _of the
Company to make payments of the Notes shall be absolute and
unconditional without defense or setoff by reason of any default
by the Issuer under this Agreement or under any other agreement
between the Company and the Issuer or for any other reason,
including without limitation, loss or impairment- of the
Redemption Fund, any acts or circumstances that may constitute
failure of consideration, destruction of or damage to the Project
Facilities, commercial frustration of purpose, or failure of the
Issuer to perform and observe any agreement, whether express or
implied, or any duty, liability or obligation arising out of or
connected with this Agreement; it being the intention of the
parties that the payments required hereunder will. be paid in full
when due without any delay or diminution whatsoever.
4.6 Assignment of Issuer's Rights; Security Agreement.
To provide for the payment of principal or prepayment-price (as
the case may be) in respect of all Bonds issued pursuant to and
outstanding under this Agreement, together with interest thereon,
and the performance of the covenants contained in the Bonds and
herein, the Issuer has caused the Company to deliver the Series
1986 Note to the Lender, and does hereby sell, assign, transfer,
setover and pledge unto, and grant a security interest to, the
Lender and its assigns, in all of the right, title and interest
of the Issuer in and to the Series 1986 Note and this Agreement
and all moneys payable thereunder (except the Issuer's rights
under Sections 5.3, 5.4 and 5.5 hereof), including all contract
rights, general intangibles and proceeds. The Company consents
to such assignment and agrees to make payments and prepayments
required hereunder and on the Series 1986 Note directly to the
Lender without defense or setoff for any reason whatsoever as
provided in Section 4.5 hereof.
This Agreement shall constitute a security agreement
under the Colorado Uniform Commercial Code,, and any successor
statute thereto, so that the Lender shall have and may enforce a
security interest to secure payment of all sums due or to become
due under this Agreement and the Notes. By virtue of Section 5.6
hereof, the Issuer has caused this Agreement or a financing
statement relating hereto to be recorded or filed in such manner
and at such places as may be required by law to perfect the
security interest granted hereby, and the Issuer shall execute or
cause to be executed such further instruments as' may be
reasonably requested by the Lender for the continuation,
amendment or termination of such security interest. Upon the
payment of all sums due hereunder and under the Notes and the
Bonds, the Lender shall release, surrender and otherwise cancel
A1136 11 08/06/86
• 0-
any interest it may have in this Agreement, the Notes, and the
Bonds, shall physically cancel the Bonds and the Notes, shall
execute such documents to evidence such release, surrender and
cancellation as may be reasonably requested by the Issuer _or the
Company and shall turn over to the Issuer or the Company, as
applicable, the canceled Bonds and the Notes.
V. Covenants of the Company.
5.1 Corporate Existence. So long as the Bonds are
outstanding, the Company will maintain its corporate existence,
except that, it may dissolve or otherwise dispose of all or
substantially all of its assets and may consolidate with or'merge
into another entity or permit one or more entities to consolidate
or merge into, it, if the surviving, resulting or transferee
entity,' if other than the Company, assumes in writing all of the
obligations"of the Company hereunder and under the Notes and' is
an entity organized under one of the states of the United States
of America, qualified to transact business in Colorado.
5.2 Maintenance of Project Facilities; Insurance. The
Company-will, at its expense, maintain and operate the Project
Facilities and keep the Project Facilities insured at all times.
Subject to any restrictions of the Special Use Permit and public
authorities, the Company will maintain the Project Facilities in
good and safe repair and operating condition, subject to normal
wear -and tear, and will operate, at reasonable times during the
ski season, the Project Facilities during their useful life or as
otherwise required to meet the public purposes of the Act, but
the Company is not required to operate any portion of any
property,after it is no longer economical and feasible, and the
Company may sell all or any portion of the Project Facilities.
The Company, at its expense, shall procure and maintain, or cause
to be procured and maintained, continuously during the term of
this Agreement, insurance policies with respect to the Project'
Facilities against such risks (including all liability for injury
to persons or property arising from the operation of the Project
Facilities) and in such amounts and subject to such deductible
amounts as property of a similar character is usually insured or
self-insured by corporations similarly situated and operating
like properties.
5.3 Payment of Issuer's Expenses. Except to the
extent payment is provided•from the Redemption Fund, the Company
will pay the Issuer's standard financing charges and reasonable
expenses, including legal and accounting fees, imposed, or
incurred by the Issuer in connection with the issuance of the
Bonds and the performance by the Issuer of any and all of its
functions and duties under this Agreement or the Bonds.
A1136 12 08/06/86
• •
5.4 Indemnity Against Claims. The Company will
indemnify the Issuer, its officers, agents and employees, past,
present and future and the Lender,against claims arising out of
the construction of the Project Facilities, or the Issuer's
undertaking- of the refinancing of the Project Facilities
(including the delivery of the Bonds and the refunding of the
.1981 Bonds) other than claims arising from willful misconduct of
the Issuer or the Lender. If any such claim is asserted, the
Issuer or the Lender will give prompt notice to the Company and
the Company will assume the defense thereof, with full power to
litigate, compromise or settle the same in its sole discretion.
5.5 Payments in Lieu of Taxes. If, for any reason
related to the Issuer's involvement in financing of the Project
Facilities, the Project Facilities are not considered to be
taxable property, the Company shall nevertheless pay to the State
of Colorado and to the political subdivisions-or other taxing
entities in which the Project Facilities are located amounts
equal to the taxes that would be otherwise due and payable if the
Project Facilities were not financed by the Issuer. Such amounts
in lieu of taxes shall be payable by the Company directly to the
political subdivisions or other taxing entities in which the
property is located; provided, however, the Company may refuse to
pay such amount in lieu of taxes so long as (a) the validity
thereof shall -be contested in good faith by appropriate legal
proceedings, and (b) the basis for such :contest is not the
Issuer's interest or involvement with the Project.
5.6 Recording and Filing. The Company shall at its
own expense cause this Agreement or financing statements under
the Colorado Uniform Commercial Code to be recorded and filed in
the places required bylaw in order to perfect the security
interests created by this Agreement naming the Issuer or the
Company as debtor and the Lender as secured party. From time to
time, as reasonably requested by the Lender, the Company shall
furnish to the Lender an opinion of counsel setting forth what
actions, if any, should be taken by the Company, the Issuer or
Lender to preserve such security interest, and the right, title
and interest of the 'Lender in and to the security interests
created under this Agreement. The Issuer and the Company shall
execute and file or cause to be executed and filed all further
instruments as shall be required by law or reasonably required by
the Lender to preserve such security interests, and shall furnish
satisfactory evidence to the Lender of the recording, filing and
refiling of such instruments.
A1136 13 08/06/86
•
VI. Events of Default and Remedies.
6.1 Events of Default. Each of the following events
is hereby defined as, and,is declared to be and to constitute, an
"Event of Default":
(a) failure by the Company to make any payment on
the Notes as required to be made pursuant to Section 4.2 or
4.4 hereof when the same is due; or
(b) failure by the Company to observe and perform
any other covenant, condition or agreement on its part to be
observed or,performed under this Agreement or the Notes for
a period of _ days after written notice, provided the
failure is of such nature as can be remedied, specifying
such failure and requesting that it be remedied, given to
the Company by the Lender; and further provided, that if
such failure is of such nature that it can be corrected (as
agreed to by the Lender), but not within such period, the
same shall not constitute an Event of Default so long as the
Company institutes prompt corrective action designed to cure
such failure within a reasonable period of time and Is
diligently pursuing the same; or
(c) if the Company
(1) admits in writing its inability to pay
its debts generally as they become due, or
(2) files a petition in bankruptcy to be
adjudicated a voluntary bankrupt in bankruptcy.or files
a similar petition under any insolvency act, or
(3) makes an assignment for the benefit of
its creditors, or
(4) consents to the appointment of a
receiver of itself or of the whole or any substantial
part of its property; or
Ada if the Company files a petition or answer
seeking its reorganization or arrangement under the Federal
bankruptcy laws or,-any other applicable law or statute; or
(e) if the,Company, on a petition in bankruptcy
filed agalffi' it, is'adjudicated a bankrupt or if a court of
competent''jurisdiction shall enter an order or decree
appointing, without the consent of the Company, a receiver
or trustee of the Company or of the whole or substantially
all of its property, or approving a petition filed against
it seeking reorganization or arrangement of the Company
A1136 14 08/06/86
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under the Federal bankruptcy laws or any other applicable
law or statute, and such adjudication, order or decree shall
not be vacated or set aside or stayed within 90 days from
the date of the entry thereof; or
failure by the Company to renew, or
ALfj revocation or termination by the United States Forest
Service of, the Special Use Permit or any similar lease,
agreement or license relating to the Beaver Creek Mountain
ski area, provided that the Company shall have 60 days to
renew or replace such Permit or similar agreement; or
(g) if for any reason the Bonds shall be declared
due and payable by acceleration; or
written notice from the Lender to the Company
and the Issuer of the occurrence of an "Event of Default" as
defined in between the Company and
the Lender, or as defined in, or in accordance with, any
such similar credit agreement, if any, between the Company
and the bank or other institution owning the Bonds
then and in each and every such case and during the continuance
thereof, the Issuer or the Lender, by notice in writing to the
Company, may declare all sums which the Company is obligated to
pay -hereunder and under the Notes to be due and payable
immediately, and upon any such declaration the same shall become
and shall be immediately due and payable, anything in this
Agreement or the Notes to the contrary notwithstanding.
In case such declaration shall have been annulled or,in
case the Issuer or the Lender shall have proceeded to enforce any
right under this Agreement and such proceedings shall have been
discontinued or abandoned for any reason or shall have been
determined adversely to the Issuer or the Lender, then and in
every such case the Company, the Issuer and the Lender shall be
restored to their, respective positions and rights hereunder, and
all rights, remedies and powers of the Company, the Issuer and
the Lender shall continue as though no such proceeding had been
taken, but subject to the limitations of any such adverse
determination.
6.2 Payment on Default; Suit Therefor. The Company
covenants that, in case default shall be made in the payment of
any amount due under this Agreement or under the Notes as and
when the same shall become due and payable, ,whether at maturity
or by declaration or otherwise--then, upon demand of the Issuer
or the Lender, the Company will pay to the Lender the whole
amount of the Notes that then shall have become due and payable
with interest at the rates provided in the Bonds; and, in
addition thereto, such further amount as shall be sufficient to
A1136 is 08/06/86
0 •
cover the reasonable costs and expenses of collection, including
a reasonable compensation to the Lender, its agents, attorney and
counsel, and any expenses or liabilities incurred by the Issuer
or the Lender other than through its negligence or bad faith or
willful misconduct. -
In case the Company shall fail forthwith to pay such
amounts upon such demand, the Lender shall be entitled and
empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceeding to judgment or final-
decree, and may enforce any such judgment or final decree against
the Company and collect in the manner provided by law out of the
property of the Company the moneys adjudged or decreed to be
payable.
In case there shall be pending proceedings for the
bankruptcy or for the reorganization of the Company under the
Federal bankruptcy laws or any other applicable law, or in case a
receiver or trustee shall have been appointed for the property of
the Company or in the case of any other similar judicial
proceedings relative to the Company, or to the creditors or
property of the Company, the Issuer or the Lender shall be
entitled and empowered, by intervention in such proceedings or
otherwise, to file and prove a claim or claims for the whole
amount of the Notes and interest owing and unpaid in respect
thereof and, in case of any judicial proceedings, to file such
proofs of,claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Issuer or the
Lender allowed in such judicial proceedings relative to the
Company, its creditors, or its property, and to collect and
receive any moneys or other property payable or deliverable on
any such claims, and to distribute the same after the deduction
of its charges and expenses; and any receiver, assignee or
trustee in bankruptcy or reorganization is hereby authorized to
make such payments to the Lender, and to pay to the Lender any
amount due it for compensation and expenses, including counsel
fees incurred by it up to the date of such distribution.
6.3 Cumulative Rights. No remedy conferred upon or
reserved to the Issuer or the Lender by this Agreement or the
Notes is intended to be exclusive of any other available remedy
or remedies, but each and every such remedy shall be cumulative
and shall be in addition to every other remedy given under this
Agreement or the Notes or now or hereafter existing at law or in
equity or by statute. No waiver by the issuer or the Lender of
any breach by the Company of any of its obligations, agreements
or covenants hereunder or under the Notes shall be a waiver of
any subsequent breach, and no delay or omission to exercise any
right or power shall impair any such right or power or shall be
construed to be a waiver thereof, but any such right and power
A1136 16 08/06/86 1
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may be exercised from time to time and as often as may be deemed
expedient.
VII. Miscellaneous.
7.1 Notices. Notice hereunder shall be given in
writing,.,either by registered mail, to be deemed effective three
days after mailing, by telegram, or by telephone, confirmed in
writing, addressed as follows:
The Issuer - The Town of Avon
P.O. Box D
Avon, Colorado 81620
Attention: Town Clerk
The Company - Beaver Creek Associates, Inc.
P. 0. Box 7
Avon, Colorado 81657
Attention: Secretary
The Lender - RepublicBank Dallas, National
Association
P. O. Box &555961
Ervay and Pacific Streets
Dallas, Texas 75265-5961
Attention: A Domestic Corporate Banking
Department
or such other address as may be filed in writing with the parties
to this Agreement.
7.2 Disclaimer: Limitation of Liability of.the Issuer.
THE ISSUER MAKES NO REPRESENTATION OR WARRANTY, EITHER MEPRESS OR
IMPLIED, AS TO THE ACTUAL OR DESIGNED CAPACITY OF THE PROJECT
FACILITIES, AS TO TEE SUITABILITY OF THE PROJECT FACILITIES FOR
THE PURPOSES SPECIFIED IN THIS AGREffiPNT, AS TO THE CONDITION OF
THE PROJECT FACILITIES, OR THAT THE PROJECT FACILITIES WILL BE
-SUITABLE FOR THE COMPANY'S PURPOSES OR NEEDS. IN THE EVENT OF
ANY DEFAULT BY THE ISSUER HEREUNDER, THE LIABILITY OF THE ISSUER
TO THE OOIKPANY - SHALL BE ENFORCEABLE ONLY OUT OF ITS INTEREST
UNDER THIS AGREEMENT AMID THERE SHALL-BE NO OTHER RECOURSE BY THE
COMPANY AGAINST THE ISSUER, ITS OFFICERS, AGENTS AND EMPLOYEES,
PAST, PRESENT-OR FUTURE, OR ANY OF THE PROPERTY NOW OR HSRRAETER
OWNED BY IT OR THEM. NO OBLIGATION OF THE ISSUER UNDER OR
UNDER THE BONDS SHALL BE DEEMED TO CONSTITUTE A PLEDGE OF THE
FULL FAITH AND CREDIT OR TARING POWER OF THE ISSUER, THE STATE OF
COLORADO OR OF ANY POLITICAL SUBDIVISION THEREOF.
A1136 17 08/06/86
r ~
7.3 Assignments. This Agreement may not be assigned
by any party without the consent of the others, except that the
Issuer may assign rights to the Lender pursuant to Section 4.6
hereof.' Notwithstanding the foregoing, no merger or
consolidation permitted under Section 5.1 hereof-shall be-,deemed
to be an assignment for purposes of this Section 7.3.
7.4 Illegal, etc. Provisions Disregarded. In case any
provision of this Agreement shall for any reason be held invalid,
illegal or unenforceable in any respect, this Agreement shall be
construed as if such provision had never been contained herein.
7.5 Applicable Law. This Agreement has been delivered
in the State of, Colorado and shall be deemed to be governed by,
and interpreted under, the laws of the State of Colorado.
7.6 Amendments. This Agreement may -not be amended
except by an instrument in-writing signed by the parties.
7.7 Term of Agreement. This Agreement shall become
effective upon its delivery and shall continue in effect until
all Bonds have been paid or provision for such payment has been
made.
7.8 Joinder of Escrow Agent. The execution below of
the Joinder to this-Agreement by the Escrow Agent shall be for
the purpose of evidencing the Escrow Agent's agreement to act as
escrow agent hereunder and to be bound by the provisions of this
Agreement as they relate to it in such capacity and for no other
purpose.. The Escrow Agent shall not be deemed a party to this
Agreement for the purposes of Section 7.3 or 7.6 hereof 'except in
the case of an assignment by the Escrow Agent or an amendment
hereof affecting its rights and obligations.
7.9 Other Documents. None of the provisions of this
Agreement shall be construed or interpreted to relieve compliance
by the Company with the terms of any other agreements, covenants
or documents with the Lender.
IN- WITNESS WHEREOF, the parties hereto, - in
consideration of the mutual covenants set forth herein and
A1136 18 08/06/86
intending to be legally bound, have caused-this Agreement to be
executed and delivered as of the date first above written.
[SEAL] TOWN OF AVON, COLORADO-
Attest: By:
Town Clerk Mayor
[SEAL]
Attest:
[SEAL]
Attest:
BEAVER CREEK ASSOCIATES, INC.
By:
Secretary Vice President
REPUBLICBANK DALLAS,
NATIONAL ASSOCIATION
By:
Authorized Officer
Vice President
A1136 19 08/06/86
0 - 0
JOINDER BY ESCROW AGENT
First Interstate Bank of Denver N.A. joins in the
foregoing por s ac sties Refinancing Agreement for purposes of
serving in the capacity of Escrow Agent thereunder and agrees to
be bound,by the provisions thereof.
FIRST INTERSTATE BANK OF I
DENVER, N.A.
By: -
Authorized Officer
A1136 20 08/06/86
~r •
Schedule A
PROJECT, Avon, Colorado -
Protect Facilities
The Project Facilities consist,- of (i) certain
snowmaking equipment for Beaver Creek Mountain, and (ii) Western
Hillside trails and chairlift #12 on Beaver Creek Mountain, and
(iii) -related improvements. The following is an itemization of
the Project costs:
ACQUISITION AND CONSTRUCTION $2,443,750
INTEREST DURING CONSTRUCTION 105,000
UNDERWRITING DISCOUNT 74,250
MISCELLANEOUS (including financing
and legal expenses) 77,000
TOTAL $2,700,000
A1136 A-1 08/06/86
•
Schedule B
[FORM OF NOTE)
BEAVER CREEK ASSOCIATES, INC.
SPORTS FACILITIES NOTE
Town of Avon, Colorado
SERIES 1986
BEAVER CREEK ASSOCIATES, INC. (the "Company"), a
corporation organized and existing under the laws of the State of
Colorado, for value received, promises to pay to the order of
REPUBLICBANK DALLAS, NATIONAL ASSOCIATION (the "Lender") a,
Assi ee of the Town of Avon, Colorado (the "Issuer")-
representing a loan advanced by the AIssuer under the por s
Facilities Refinancing Agreement dated as of August 1, 1986 (the
Agreement"), the principal sum of $2,700,000, payable in
installments onASeptember 1 in each of the years as shown below,
and. to pay interest on the first day of each month, commencing
October 1, 1986, on the unpaid portion of principal, from the
date hereof until payment of such principal has been made or
provided for, and to pay interest on overdue interest at the same
rate per annum:
Installment Due Principal
A(September 1) Amount
1990
$250,000
1991
250,000
1992,
375,000
1993
375,000
1994
375,000
1995
375,000
1996
700,000
The unpaid principal balance of this. Note shall bear
interest from the date hereof until this,Note is paid in full at
an annual per centum rate equal to the Variable Rate ("Variable
Rate"). calculated on the basis of a .360-day year and in
accordance with the Agreement, determined by the formula attached
hereto as Appendix A and by this reference made a part hereof.
Notwithstanding the foregoing, neither the Variable
Rate nor the Fixed Rate (as hereinafter, defined) shall ever
exceed a rate that would cause the net effective interest rate
from the date of initial delivery of the Note to the date. 'of
maturity or earlier prepayment of the Note to exceed the lesser
of (a)-45% per annum or (b) the maximum rate permitted. by law
(the "Maximum Rate"). [If at any time, the Variable Rate would
have exceeded the Maximum rate if not for the limitation set
A1136 B-1 08/06/86
forth in the preceding sentence, then the Note shall continue to
bear interest at the Maximum Rate until the total amount of
interest -paid or accrued on the Note equals the amount of
interest which would have been paid or accrued on the Note if not
for the limitation to the Maximum Rate or-until the-Note-is paid
in full, whichever shall first occur.] All past due principal
and interest on this Note shall bear interest at the Maximum
Rate.
At the option of the Company, the rate of interest on
this Note may be converted to a fixed rate (the "Fixed Rate") for
a term not exceeding five years at any time upon days written
notice to the Lender and the Issuer. Such notice shall state the
proposed date of conversion to the Fixed Rate, the Fixed- Rate
period proposed and the Fixed Rate of interest, which shall be
calculated by the Company and shall [INSERT-FIXED RATE FORMULA]./
In no event shall such Fixed Rate exceed 45%_per annum. Upon
conversion to a Fixed Rate, interest on this Note shall be
payable quarterly on the outstanding balance on the first day of
each AMarch, June, September and ADecember until maturity. Upon
expiration of such Fixed Rate period, the interest rate on this
Note shall revert to the applicable Variable Rate, subject to
subsequent conversion to a Fixed Rate at the election of the
Company.
The interest payable on this Note shall be computed by
the Lender on the basis of a 3~ 60 day year AOf twelve 30-dad
month It _
This Note is subject to prepayment.at the option of the
Company, upon days prior written notice to the Lender, in
whole or in part on any date at the Optional Prepayment Price of
100% of the principal amount of this Note or portion thereof
prepaid, plus interest accrued to the'date of prepayment.
Upon the occurrence of an event which makes ,the
Issuer's Sports Facilities Revenue Refunding Bonds (Beaver Creek
Associates Project), Series 1986 (the "Series 1986 Bonds")
subject to Special Mandatory Prepayment as provided therein, the
Company shall, on or before the prepayment date for the Series
1986 Bonds specified by the Company or otherwise required by the
provisions of the form of the Series 1986 'Bonds, pay to -the
Lender the principal. amount of this Note or portion thereof-
prepaid, plus interest accrued to the date of prepayment.
If, for any reason, the amounts specified above are not
sufficient to make corresponding payments of principal or
prepayment price of, and interest on, all of the Issuer's Series
1986 Bonds, when such payments are due, the Company shall pay as
additional amounts due hereunder, the amounts required from time
to time to make up any such deficiency. Whenever payment or
A1136 B-2 08/06/86
L J
•
provision therefor has been made in respect of the principal or
prepayment price of, and interest on all such Series 1986 Bonds,
this Note shall be deemed paid in full and shall be cancelled and
returned to the Company.
All payments of principal, prepayment premium, if any,
and interest shall be made to the Lender at' P.O. BoxA655961.
Dallas, Texas /75265, in such coin or currency of the United
States of America as at the time of payment shall be legal tender
for the payment of public and private debts. The Company agrees
that all sums payable to the Lender shall be paid in such a
manner that the Lender shall have "collected funds" on the date
on which such sums are due and payable. All payments shall be in
the full amount required hereunder unless the Lender notifies the
Company that it is entitled to a credit.
This Note is issued pursuant to the Agreement among the
Issuer, the Company and the Lender. The obligations of the
Company to make the payments required hereunder shall be absolute
and unconditional without defense or set-off by reason of ,any
default by the Issuer under the Agreement or under any other
agreement between the Company and the Issuer or any other reason,
including without limitation, loss or impairment of the
Redemption Fund established under the Agreement, any acts or
circumstances that may constitute failure of consideration,
destruction of or damage to the Project Facilities, commercial
frustration of purpose, or failure of the issuer to perform 'and
observe any agreement, whether express or implied, or any duty,
liability or obligation arising out of or connected with the
Agreement, it being the intention of the Company _and the Issuer
that the payments hereunder will be paid in full when due without
any delay or diminution whatsoever.
In case one or more of the Events of Default specified
in Section 6.1 of the Agreement shall have occurred and be
continuing, then and in each and every such case, the Lender, by
notice in writing to the Company, may declare the unpaid balance
of this Note to be due and payable immediately, and upon any such
declaration the same shall become and shall be immediately due
and payable, anything in this Note or in the Agreement to the
contrary notwithstanding without diligence, presentment, demand,
In case the Lender shall have proceeded to enforce its
rights under this Note or the Agreement and such proceedings
shall have been discontinued or abandoned for any reason or shall'
have been determined adversely to the Lender, then and in every
such case the Company and the Lender shall be restored to their
respective positions and rights hereunder-, and all rights,
remedies and powers of the Company and the Lender shall continue
A1136 B-3 08/06/86
W •
as though no such proceeding had been taken, but subject to the
limitations of any such adverse determination.
In case the Company shall fail forthwith to pay all
amounts due hereunder and under the Agreement upon such demand,,
the Lender- shall be entitled and empowered to institute any
actions-or proceedings at law or in equity for the-collection of
the sums so'due and unpaid, and may prosecute any such action or
proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company and collect, in the
manner provided by law out of the property of the Company the
moneys adjudged or decreed to be payable.
IN WITNESS WHEREOF, the Company has caused this Note to
be duly executed and delivered.
Dated: , 1986 BEAVER CREEK ASSOCIATES, INC.
By:
Vice,President
A1136 B-4 08/06/86
! •
APPENDIX A
Formula for Calculating Variable Rate
. The unpaid principal balance of the Note shall bear
interest at an annual per centum rate equal to the Variable Rate
("Variable Rate"), determined by the following formula:
Variable Rate = [Base Rate + .-]-[Base Rate x
(1.00-S)x R)
below:
The following terms shall have the meaning set forth
"Prime Rate" means the prime rate of interest
(expressed as a percentage) of RepublicBank Dallas, National
Association as declared from time to time by RepublicBank Dallas,
National Association, it being understood that such prime rate
may not be the lowest rate of interest charged by RepublicBank
Dallas, National Association.
"Base Rate" means the Prime Rate minus 1.00.
"Interest Period" means, with respect to any part of
the outstanding principal of the Note bearing interest at a Fixed
Rate, a quarterly period with interest payable on the first day
of each March, June, September and December.
"Maximum Amount" means the maximum amount of interest
which, under applicable law, the Lender is permitted to charge on
the outstanding principal of the Note.
"R" means the highest marginal income tax rate
(expressed as a decimal) imposed on the taxable income of
corporations pursuant to Section 11 or any successor provisions
of the Internal Revenue Code of 1954, as amended, (the "Code")
with respect to the taxation of income of national banks.'
"S" means the 'percentage exclusion (expressed as a
decimal).for financial institution preference items pursuant to
(a) Section 291(a)(3) of the Code or any successor-or similar
provision, or (b) any,other provision enacted after May 1, 1985,
limiting the deductibility to the owner of the Note of interest
incurred in connection with the acquiring or owning of tax exempt
bonds, as in effect from time to time.
A1136 B-5 08/06/86
•
W
Schedule C
[FORM OF SERIES 1986 BOND]
$2,700,000
UNITED STATES OF AMERICA
STATE OF COLORADO
TOWN OF AVON
SPORTS FACILITIES REVENUE REFUNDING BOND
(Beaver Creek Associates Project)
SERIES 1986
TOWN OF AVON, COLORADO (the "Issuer"), a municipal
corporation and a political subdivision of the State of Colorado
and a body corporate and politic, duly organized and existing
under the Constitution and laws of the State of Colorado and
under a home-rule charter adopted in conformity with the Colorado
Constitution and Colorado 'Municipal Home Rule Act of 1971, for
value received, hereby promises to pay (but only out of the
sources hereinafter mentioned) to REPUBLICBANK DALLAS, NATIONAL
ASSOCIATION, its successors and assigns (the "Lender"),'on
ASeptember.l in each of the years 'and in the installments set
--forth below, unless this Bond shall have, been duly prepaid in
whole or in part, the principal sum of $2,700,000 and to pay.(but
only out of the sources hereinafter mentioned) interest thereon
from the date hereof until payment of said outstanding principal
sun has been made or provided for, on the first day of each month
commencing on October 1, 1986, and, to the extent permitted by
law, to pay interest on overdue interest at the same rate per
annum:
Installment Due Principal
A (Septeinber 1) Amount
1990
$250,000
1991
250,000
1992
375,000
1993-
375,000
1994
375,000
1995
375,000
1996
700,000
The unpaid principal balance of this Bond shall bear
interest from the date hereof until this Bond is paid in full--at
an annual per centum rate equal to the Variable Rate ("Variable
Rate"), calculated on the basis of a 360-day year and in
accordance with the Agreement (as hereinafter defined),
A1136 C-1 08/06/86
determined by the formula attached hereto as Appendix A and by
this reference made a part hereof.
Notwithstanding the foregoing, neither the Variable
Rate nor the Fixed Rate (as hereinafter defined) shall ever
exceed a rate that would cause the net effective interest rate
from the date of initial delivery of the Bonds to the date of
maturity or earlier prepayment of the Bonds to exceed the lesser
of (a) 45% per annum or (b) the maximum rate permitted by law
(the "Maximum rate"). [If at any time, the Variable Rate would
have exceeded the Maximum Rate if not for the limitation set
forth in the preceding sentence, then the Bond shall continue to
bear interest at the Maximum Rate until the total amount of
interest paid or accrued on the Bond equals the amount of
interest which would have been paid or accrued on the Bond if not
for the limitation to the Maximum Rate or until the Bond is paid
in full, whichever shall first occur.] All past due principal
and interest on the Bond shall bear interest at the Maximum Rate.
At the option of the Company hereinafter mentioned, the
rate of interest on this Bond may be converted to a fixed rate
(the "Fixed Rate") for a term not exceeding five years at any
time upon days written notice to the Lender and the issuer.
Such notice shall state the proposed date of conversion to the
Fixed Rate, the Fixed Rate period proposed and the Fixed Rate of
interest, which shall be calculated by the Company and shall
A [INSERT FIXED RATE FORMULA]. In no event shall such Fixed Rate
exceed 45% per annum. Upon conversion to a Fixed Rate, interest
on this Note shall be payable quarterly on the outstanding
balance, on the first day of eachA March, June, September and
ADecember until maturity. Upon expiration of such Fixed Rate
period, the interest rate on this Bond shall revert to the
applicable Variable Rate, subject to subsequent conversion to a
Fixed Rate at the election of the Company.
Interest payment on this Bond shall be computed by the
Lender on the basis of a n360 day yearn of twelve 30-day months.
Principal and interest shall be paid in any coin or currency of
the United States of America which, at the time of payment, is
legal tender for the payment of public and private debts.
This Bond is one of a duly authorized series (the
"Series 1986 Bonds") limited in aggregate principal amount to
$2,700,000 issued and delivered to the Lender pursuant to a
Sports Facilities Refinancing Agreement dated as of August 1,
1986 (the "Agreement") among the Issuer, Beaver Creek Associates,
Inc. (the "Company") and the Lender. The Series 1986 Bonds are
issued by the Issuer pursuant to and in full compliance with the
laws of the State of Colorado, including the County and
Municipality Development Revenue Bond Act, part 1 of article 3 of
title 29, Colorado Revised Statutes, as amended (the "Act") to
A1136 C-2 08/06/86
•
accomplish the public purposes of the Act by providing
refinancing for the Project Facilities as defined in the
Agreement.
The Series 1986 Bonds are payable solely from payments
to be made by the Company on one or more Sports Facilities Notes
(the "Notes") required to be issued pursuant to the Agreement and
from any other moneys paid to the Lender for such purpose, and
there shall be no other recourse against the Issuer or any other
property now or hereafter owned by it. The Issuer has assigned
to the Lender all rights of the Issuer under the Agreement and
Notes except the Issuer's rights to payment of expenses and
indemnification. The payment of principal, premium, if..any, and
interest on this Bond have been guaranteed by the Company.
TKIS BOND IS A SPECIAL AND LIMITED OBLIGATION-OF THE
TOWN OF AVON, COLORADO, PAYABLE SOLELY FROM THE REVENUES DERIVED
FROM THE NOTES AND THE AGREEMENT. THIS BOND AND THE INTEREST
Bd3REON SHALL. NEVER CONSTITUTE THE DEBT OR INDEBI'BDNESS OF THE
ISSUER OR THE STATE OF COLORADO OR ANY POLITICAL SUBDIVISION
T~REOF WITHI_N THE MEANING OF ANY PROVISION Olt. LIMITATION OF THE
COLORADO CONSTITUTION OR STATUTES OR HOME RULE CHARTER AND SHALL
NOT CONSTITUTE NOR GIVE RISE TO A PECUNIARY LIABILITY OF THE
ISSUER OR A CHARGE AGAINST ITS GENERAL CREDIT OR TARING POWERS.
Optional Prepayment in Whole or in Part. The Series
1986, Bonds are subject to prepayment prior to maturity, upon
exercise of the option of the Company to prepay its Note, upon
days prior written notice to the Lender, in whole or in part
on any date at the Optional Prepayment Price of 100% of the
principal amount thereof, plus interest accrued to the date of
prepayment.
Special Mandatory Prepayment in Whole. The Series 1986
Bonds are subject to special mandatory prepayment by the Issuer
on any date prior to their scheduled maturityAif (a) it is
determined in an unqualified opinion of nationally recognized
bond counsel that interest paid in respect of the Bonds is
includible for federal income tax purposes in the gross income of,
an owner or former owner of the Bonds (other than the Company or
a "substantial user" or a "related person" as those terms are
used in Section 103(b) of the Internal Revenue Code of 1954, as
amended), or (b) the Internal Revenue Service issues a notice of
deficiency or similar notice to any such owner or former owner
assessing a tax in respect of any interest on the Bonds, or (c)
the Internal Revenue Service enters into any settlement agreement
with any such owner or former- owner of any Bonds under which a
tax, penalty or interest in respect of any interest on the Bonds
is to be assessed (any event or occurrence specified in (a), (b)
or (c) above being herein referred to as a "Determination of
Taxability"). Upon the occurrence of such Determination of
A1136 C-3 08/06/86
Taxability, the Issuer shall pay to the owners and former owners
of the Bonds amounts deemed adequate to pay the owners all unpaid
principal of and accrued interest on the Bonds.
If an "Event of Default" as defined in the Agreement
occurs, the principal of this Bond and all other Bonds issued
under the Agreement may be declared due and payable upon the
conditions and in the manner and with the effect provided in the
Agreement. The remedies of the Lender, as provided in the
Agreement, shall be cumulative and concurrent and may be pursued
singly, successively or together, at the sole discretion of the
Lender, and may be exercised as often as occasion therefor shall
occur; and the failure to exercise any such right or remedy shall
in no event-be construed as a waiver or release thereof. The
Lender shall not be deemed, by any act of omission or commission,
to have waived any of its rights or remedies hereunder unless
such waiver is in writing and signed by the Lender, and then only
to the extent specifically set forth in the writing. A waiver
with reference to one event shall not be construed as continuing
or as' a bar to or waiver of any right or remedy as to a
subsequent event.
No recourse shall be had for the payment of the
principal or prepayment price of, or premium, if any, or interest
on, this Bond, or*for any claim based hereon or on the Agreement,
against any officer, agent or employee, past, present or future,
of the*Issuer or of any successor body, as such, either directly
or through the Issuer or any such successor body, under any
constitutional provision, statute or rule of law, or by the
enforcement of any assessment or by any legal or equitable
proceeding or otherwise.
This Bond is transferable only upon the registration
books of the Town at the office of the Town Clerk, by an officer
of the Lender or by its agent duly authorized in writing, at the
Lender's expense, upon surrender hereof together with a written
instrument of transfer satisfactory to the Town Clerk, duly
executed by the Lender or its duly registered agent. Upon such
transfer the Town Clerk will note the date of registration and
the name and address of the new registered owner of this Bond in
the registration blank appearing below. The City may deem and
treat the person in whose name the Bond is last registered upon
the books of the Town as the absolute owner hereof, whether or
not overdue, 'for the purpose of receiving payment of or on the
account of the principal balance, redemption price or interest
and for all other purposes, and all such payment so made to the
Lender or-upon its order shall be valid and effective to satisfy
and discharge the liability upon the Bond to the extent of the
sum or sums so paid, and the Town shall not be affected by any
notice to the contrary.
A1136 C-4 08/06/86
0- 0
This Bond has been issued and delivered without
registration under the Securities Act of 1933, as amended, or
other Federal or State 'securities laws, in reliance upon the
availability of an appropriate exemption from registration
otherwise required and representations of the. Lender that this
Bond is being acquired solely for investment-and not with a view
to distribution or resale. This Bond shall not be sold, pledged,
hypothecated, donated or otherwise transferred, -including the
sale of a participation interest herein, whether or not for
consideration, by the Lender or any purchaser -except upon
compliance with the Securities Act of 1933;, as amended, and any
other applicable Federal or state law.
In any case where the date of maturity of interest on
or principal of the Bonds or,the date fixed for prepayment of-any
Bonds shall be a'Saturday or Sunday or a legal holiday or a day
on which banking institutions in the city of payment are
authorized by law to close, then payment of interest or principal
or prepayment price need not be made on such date but may be made
on the next succeeding. business day with the same force and
effect as if made on the date of maturity or the date fixed for
prepayment.
This Bond is governed by the laws of the` State of
Colorado.
IN WITNESS WHEREOF, the Issuer has caused this bond to
be executed in- its name by the -signature of' the Mayor of the
Issuer and its corporate seal or to be affixed hereto and
attested to by the signature of its Town Clerk.
Dated: 1986, TOWN OF AVON, COLORADO
[ SEAL
By:
Mayor
Attest:
Town Clerk
A1136 C-5 08/06/86
REGISTRATION PANEL
This Bond' is registered on the registration books, of
the Town at the office "of the Town Clerk, in the'name of the
owner listed below, and, the principal of and interest on this
Bond shall be payable only to such owner.
Name, Address and Signature
Date of Identification Number of
Registration of Registered Owner Town Clerk
A1136 C-6 08/06/86
~ r
APPENDIX A
Formula for Calculating Variable Rate
The unpaid principal balance of the Bond shall bear
interest at an annual-per centum rate equal to the. Variable Rate
("Variable Rate") determined by the following formula:
Variable Rate = [Base Rate + ]-[Base Rate x
(1.00-S)x R]
The following terms shall have the meaning set forth
below:
"Prime Rate" means the prime rate of interest
(expressed as a percentage) of RepublicBank Dallas, National
Association as declared from time to time by RepublicBank Dallas,
National Association, it being understood. that such prime rate
may not be the lowest rate of interest charged by RepublicBank
Dallas, National Association.
"Base Rate" means the Prime Rate minus 1.00.
"Interest Period" means, with respect to any part of
the outstanding principal of the Bond bearing interest at a Fixed
Rate, a quarterly period with interest payable on the first day
of each March, June, September and December.
"Maximum Amount"- means the maximum amount of interest
which, under applicable law, the Lender is permitted to charge on
the outstanding principal-of the Bond.
"R" means the highest marginal income tax rate
(expressed as a decimal) imposed on the taxable income of
corporations pursuant to Section 11 or any successor provisions
of the Internal Revenue Code of 1954, as amended, (the "Code")
with respect to the taxation of income of national banks. ,
"S" means the percentage exclusion (expressed as a
decimal) for financial institution--.preference items pursuant to
(a) Section 291(a)(3) of the Code or any successor or similar
provision, or (b) any other provision enacted after May 1, 1985,
limiting the deductibility to-~the registered owner of the Bond of
interest incurred in connection with the acquiring or owning of
tax exempt bonds, as in effect from time to time.
A1136 C-7 08/06/86
D6612 Awi
08/11/86 • • 6j nnA
,~ttiJ Y-e~ S
PROCEEDINGS OF THE TOWN COUNCIL AF
THE TOWN OF AVON. COLORADO
RELATING TO
SPORTS FACILITIES REVENUE REFUNDING BONDS
(BEAVER CREEK ASSOCIATES PROJECT), SERIES 1986
IN A PRINCIPAL AMOUNT NOT TO EXCEED $24700,000
9 •
STATE OF COLORADO )
COUNTY OF EAGLE ) ss.
TOWN OF AVON )
The Town Council of the Town of Avon, Colorado, met in
regular session at the Avon Municipal Building, the regular
meeting place thereof in' the Town, on Tuesday, the 12th day of
August, 1986, at the hour of 7:30 p.m.
The following members of the Town Council were present:
Mayor:
Mayor Pro Tem:
Council Members:
Allan R. Nottingham
Sheila R. Davis
Don Buick
Al Connell
Steve Miller
Clint Watkins
Gloria McRory
No members of the Town Council were absent.
The following persons were also present:
Town Manager: William James
Town Attorney: Atthur A. Abplanalp, Jr.
Town Clerk: Barbara Joseph, Deputy
The Mayor announced that one of the purposes of the
'meeting was to be the consideration of a resolution supplementing
Ordinance No. 86-17, Series of 1986, authorizing the issuance by
the Town-of Sports Facilities Revenue Refunding Bonds (Beaver Creek
Associates Project), Series 1986, in the aggregate principal
amount of $2,700,000, and the execution of various documents in
connection therewith.
The Mayor further announced that, in accordance with
Federal tax law relating to the bonds, a notice of public hearing
had been published twice in The Vail Trail, a newspaper of
general circulation in the Town of Avon and Eagle County, in its
issues dated July 11, 1986 and July'18, 1986
D6612 1 08/11/86
Thereupon, at approximately 9:00 pm., a public hearing
was held 'and all interested persons present were heard by the
Town Council.
h Thereupon, the following proceedings, among -others,
were had and taken:
Mayor_Allan.Nottingham introduced the following
Resolution, which was read'by title,' sufficient copies having
previously been made available to the Council and to the public:
D6612
2
08/11/86
•
TOWN OF AVON, COLORADO
RESOLUTION NO. 86-16
Series of 1986
•
A RESOLUTION SUPPLEMENTING ORDINANCE NO. 86-17, SERIES
OF 1986; DETERMINING THE PRINCIPAL AMOUNT, BOND
NUMBERS, PROVISIONS FOR REDEMPTION AND MATURITIES OF,
AND RATES OF INTEREST ON $2,700,000 OF THE TOWN'S
SPORTS FACILITIES REVENUE REFUNDING BONDS (BEAVER CREEK
ASSOCIATES PROJECT), SERIES 1986; DETERMINING REVENUES
TO BE PAID FOR SUCH PROJECT; AUTHORIZING INCIDENTAL
ACTION; AND REPEALING INCONSISTENT ACTIONS.
WHEREAS, the Town Council by Ordinance No. 81-23,
Series of 1981, approved a sports and recreational 'facilities
project (the "Project") for Beaver Creek Associates, `Inc. (the
"Company") pursuant to the County and Municipality Development
Revenue Bond Act (the "Act") and issued $2,700,000 aggregate
principal amount of Sports Facilities Revenue Bonds (Beaver Creek
Associates Project) Series 1981 (the "1981 -Bonds") which have
been called for redemption on September 1, 1986 pursuant to the
terms of the Trust Indenture under which such 1981 Bonds were
issued; and
WHEREAS, the Town Council by Ordinance No. 86-17,
Series of 1986, finally passed July 22, 1986, approved the
refinancing of the Project and its related costs pursuant to the
Act; and
WHEREAS, the Town has approved a Sports Facilities
Refinancing Agreement dated as of August 1, 1986 (the
"Agreement") with the Company and has determined .to refinance the
Project and its related costs by the issuance and delivery of
$2,700,000 in aggregate principal amount of its:bonds to be known
as "Sports Facilities Revenue Refunding Bonds (Beaver Creek
Associates Project), Series 1986" (the "Bonds"), to RepublicBank
Dallas, National Association (the "Lender") which Bonds are to be
guaranteed by Vail Associates, Inc.; and
WHEREAS Ordinance No. 86-17, Series of 1986, authorized
the issuance of the Bonds and the determination of final terms
thereof by subsequent resolution of the Town Council.
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF
THE TOWN OF AVON, COLORADO, that:
Section 1. APPROVAL OF AGREEMENT. The form of the
Agreement among the Town, the Company and the Lender presented to
D6612 3 08/11/86
this meeting (copies of which shall be filed-with the records of
the Town) are hereby approved, and the Mayor of the Town (the
"Mayor") is hereby authorized to execute and deliver, and the
Town Clerk of the Town (the "Clerk") is hereby authorized to
-affix the seal of the Town where appropriate to, and attest, such
documents in substantially such form and upon the terms -and
conditions set forth herein and therein, with such changes
therein as such,- officers shall approve (including changes in
dates and amounts necessary to conform such documents to the
final terms as approved 'by the Company and the Lender), such
approval to be evidenced by their execution thereof. The
appointment of First Interstate Bank of Denver, N.A., as Escrow
Agent under the Agreement, is hereby confirmed.
In accordance with the requirements of the Act, the
Town hereby determines that the following provisions shall be as
set forth in the form of Agreement hereinbefore approved, which
form is hereby incorporated herein by reference as if set forth
in full:
(a) Custody of the proceeds from the sale of the
Bonds, including their investment and reinvestment until
used to-defray the costs of refinancing the Project;
(b) The creation of funds or accounts, into which
any Bond proceeds, revenues and income may be deposited or
created;
(c) Limitation on the purpose to which proceeds
of'any Bonds may be applied;
(d) Limitation on the issuance of additional
bonds, the refunding of Bonds and the replacement of Bonds
(e) The procedure by which the terms of any
contract with Bondholders may be amended-or abrogated;
(f) Vesting in the Lender such properties,
rights, powers and duties as the Issuer determines and
limiting the rights, duties and powers of the Lender;
(g) The rights and remedies available in case of
a default to the Lender under the Agreement;
(h) The fixing and collection of revenues from
the Project; and
(i) The maintenance and insurance of the Project.
Section 2. TERMS OF BONDS.' The Bonds shall be-dated
as of their actual date of delivery, shall be in the aggregate
D6612 4 08/11/86
principal amount of $2,700,000, and shall be issued in
typewritten, fully registered form. The Bonds, shall mature,
subject to prior prepayment, on September 1, 1996.
All prepayment provisions of the. Bonds shall be as
contained in the form of Agreement previously approved, the terms
of which are hereby reconfirmed.
follows:
The interest rate on the Bonds shall be determined as
Determination of Variable Interest Rate. The Bonds
shall bear interest from'the date of delivery at an annual per
centum rate equal to the Variable Rate ("Variable Rate"),
calculated on the basis of a 360-day year and in accordance with
the Agreement, determined by the following formula:
Variable Rate = [Base Rate + 1.786]-[Base Rate x
(1.00-S)x R]
As used in the Bonds, the following terms shall have
the meaning set forth below:
"Prime Rate" means the prime rate of interest,
(expressed as a percentage) of RepublicBank' Dallas, National
Association as declared from time to time by RepublicBank Dallas,
National Association, it being understood that such prime rate
may not be the lowest rate of interest charged by RepublicBank
Dallas, National Association.
"Base Rate" means the Prime Rate minus 1.00.
"Interest Period" means, with respect to any part of
the outstanding principal of the Bonds bearing interest at a
Fixed Rate, a quarterly period with interest payable on the first
day of each March, June, September and December.
"Maximum Amount" means the maximum amount of interest
which, under applicable law, the Lender is permitted to charge on
the outstanding principal of the Bonds.
"R" means the highest marginal income tax rate
(expressed as a decimal) imposed on the taxable income of
corporations pursuant to Section 11 or any successor provisions
of the Internal Revenue Code of 1954, as amended (the "Code"),
with respect to the taxation of income of national banks.
"S" means the percentage exclusion (expressed as a
decimal) for financial institution preference items pursuant to
(a) Section 291(a)(3) of the Code or any successor or similar
provision, or (b) any other provision enacted after May 1, 1985,
D6612 5 08/11/86
• •
limiting the deductibility to the registered owner of the Bonds
of interest incurred in connection with the acquiring or owning
of tax exempt bonds, as in effect from time to time.
Notwithstanding the foregoing, neither the Variable
rate nor the Fixed Rate (as hereinafter defined) ' shall ever
exceed a rate that would cause the net effective interest rate
from the date of initial delivery of the -Bond to -the date of
maturity or earlier prepayment of the Bond to exceed the lesser
of (a) '45% per annum or (b) the maximum rate permitted by law
(.the "Maximum Rate").
Determination of Fixed Interest Rate. Prior to
September 1, 1991, at the, option of the Company and subject to
certain conditions set forth in the Bonds, the interest on the
Bonds may be converted to a Fixed Rate ("Fixed Rate") to be
calculated in accordance with the following formula:
Fixed Rate = [ Fixed Base Rate + 1.786% ] - [ Fixed Base
Rate x (1.00-S) x R]
"Fixed Base Rate" means a rate of interest per annum
equal to 145%, of the rate of interest stated as the current U.S.
Treasury Notes and Bonds - Constant Maturities, for like
maturities, set forth in the most recent publication of the
weekly Federal Reserve Statistical' Release of Selected Interest
Rates, Publication Number H-15(519), published each week by the
Federal Reserve Board of Governors (or any successor publication
published by the Federal Reserve Board of Governors):
Section 3. DETERMINATION OF REVENUES. In accordance
with the -Act, it is hereby determined that (a) no amount is
necessary for payment into any reserve fund for retirement of the
Bonds and maintenance of the Project and (b) the Company shall be
required under the terms of the Agreement to pay all taxes levied
by the State of Colorado and local taxing bodies with respect to
the Project. It is hereby determined that, based on the maximum
interest rate of 45% per annum, no more than the following
amounts will be -necessary for the payment of principal and
interest on the Bonds:
Year Ending September- 1 Year Ending September 1
1987
$1,215,000
1992
$1,215,000
1988
1,215,00.0_
1993
1,215,000
1989
1,215,000
1994
1,215,000
1990
1,215,000
1995
1,215,000
1991
1,215,000
1996
3,915,000
D6612 6 08/11/86
Section 4. INCIDENTAL ACTION. The Mayor, Town
Manager, Finance Director and Town Clerk of the.Town are hereby
authorized and directed to execute and deliver such other
documents, including acceptances and conveyances of property
interests, and to take such other action as may be necessary or
appropriate in order to effectuate the execution and delivery of
the aforesaid Agreement, (including the approval of changes in
such documents which the Town's counsel approves and which do not
alter the basic terms and substance of the proposed transactions,
such approval to be evidenced by the execution by such officers),
the performance~of the Town's obligations thereunder, and the
issuance and delivery of the Bonds to the Lender, all in
accordance with the foregoing Sections hereof and the provisions
of Ordinance No. 86-17, Series of 1986.
Section S. REPEALER. All acts, orders, resolutions,
or parts thereof, taken by the Town in conflict with this
Resolution are hereby repealed, except that this repealer shall
not be construed so as to revive any act, order, resolution, or
part thereof, heretofore repealed.
Section 6. RESOLUTION IRREPEALABLE. After the Bonds
are issued and outstanding, this Resolution shall constitute a
contract between the Town and the Lender or other owner of the
Bonds, and shall be and remain irrepealable until the Bonds and
the interest accruing thereon shall have been fully paid,
satisfied and discharged.
Section 7. SEVERABILITY. If any paragraph, clause or
provision of this Resolution is judicially adjudged invalid or
unenforceable, such judgment shall not affect, impair or
invalidate the remaining paragraphs, clauses or provisions
hereof, the intention being that the various paragraphs, clauses
or provisions hereof are severable.
Section 8. EFFECTIVE DATE. This Resolution shall take
effect immediately upon its passage.
INTRODUCED, READ, APPROVED AND ADOPTED, THIS 12th day
of August, 1986.
[TOWN]
[SEAL]
ATTEST:
Deputy-Town Clerk
Town of Avon, Colorado
Mayor Allan R. Nottingham
Town of Avon, Colorado
D6612 7 08/11/86
Council Member Sheila Davis moved that the foregoing
Resolution heretofore introduced and read by title be approved.
Council Member Al Connell seconded the motion, and
the question being upon the approval of the Resolution,
was called with the following results:
Council Members voting "YES":
Mayor: Allan R. Nottingham
Mayor Pro Tem: Sheila R. Davis
Council-Members: Steve Miller
Donald Buick
Gloria McRory
Al Connell
Clint Watkins
Council Members voting "NO": NONE
7- members of the Town Council present having voted
in favor thereof,-the Mayor thereupon declared the motion was
carried and the Resolution duly approved'.
Thereupon, the Mayor directed that the Resolution be
numbered and recorded in the official records of the Town.
After consideration-of other business to come before
the Town Council, the meeting was adjourned.
(TOWN)
(SEAL)
ATTEST:
Deputy__Town Clerk
Town of Avon, Colorado
Mayor Allan R. Nottingham
Town of Avon, Colorado
D6612 8 08/11/86
r • •
LAW OFFICES
COSGRIFF, DUNN & ABPLANALP
A PARTNERSHIP OF PROFESSIONAL CORPORATIONS
P O. Box 340
PETER COSGRIFF VAIL,COLORADO 81658
JOHN W DUNN
ARTHUR A ABPLANALP, JR (303) 476-7552
TIMOTHY H. BERRY
ALLEN C. CHRISTENSEN
LESLIE J. RANNIGER 6 August 1986
Mr. William James
Avon Municipal Building
Avon, CO 81620
HAND DELIVERED
Re: Shopping Center
Beaver Creek Bonds
Dear Bill:
COSGRIFF, DUNN 6 BERRY
P.O.BOX II
LEADVILLE, COLORADO 80461
(303) 486- 1885
You will find enclosed the following materials:
1. Proposed ordinance repealing Ordinance No.
86-15 and authorizing the Town of Avon to enter into a new
contract for parking facilities;
2. Revised Contract relating to the Avon shopping
center/parking facility proposal;
3. Revised Contract relating to the Avon shopping
center/parking facility proposal, with changes highlighed;
4. Proposed resolution relating to the Beaver
Creek bonds, effecting the previous ordinance.
With reference to the first three items, it is my
understanding that one set will be hand carried to Denver,
and consequently we are providing you with two sets of these
materials. The other set is to be forwarded by you to Pat
Doyle, unless you have changes, for inclusion in the packet
for next Tuesday's meeting.
With reference to the Beaver, Creek bond material,
you will note that the proposal is preliminary, as changes
are to be made in at least two provisions, at the middle of
page 4 and at the middle of page 5, as indicated. It is my
understanding that the final drafts will be provided to the
Town in advance of the Tuesday meeting. It should be noted
that the proponents of the bonds, and their counsel, have
been advised that there is no reason for either to appear at
the Tuesday meeting. Consequently, the Counsel should
neither expect their attendence nor wonder at their absence.
PROFESSIONAL CORPORATIONS ARE PETER COSGRIFF, P C.AND TIMOTHY H. BERRY, P.C.IN LEADVILLE,
DUNN Q ABPLANALP, P. C. IN VAIL.
0 •
Mr. William James
6 August 1986
Page 2
If you feel that their attendance is necessary or desirable,
you should advise Niki Frangos Tuttle, of Ballard, Spahr,
Andrews and Ingersoll, bond counsel for the proponents,, of
that fact immediately. She may be reached at 292-2400.
Should you have any questions or require any
changes to the enclosed materials, please ad ' e me of that
fact immediately.
ry uiy yours,;
COS RIFF, DUNN PLA P
Art A. A 'lanalp Jr
AAA, jr;a
Enclosures
xc:Pat Doyle
b661.2 • • //I-.
08/02/86
FRELIM INARY DRt"d
SUBJECT TO CHANGE
.MMEMS Tdccricate revisions"
PROCEEDINGS OF THE TOWN COUNCIL OF
THE TOWN OF AVON, COLORADO
RELATING TO
SPORTS FACILITIES REVENUE REFUNDING BONDS
(BEAVER CREEK ASSOCIATES PROJECT), SERIES 1986
IN A PRINCIPAL AMOUNT NOT TO EXCEED $2,700,000
• •
STATE OF COLORADO
COUNTY OF EAGLE ) ss.
TOWN OF AVON )
The Town Council of the Town of Avon, Colorado, met in
regular session at the Avon Municipal Building, the regular
meeting place thereof in the Town, on Tuesday, the 12th day of
August, 1986, at the hour of 7:30 p.m.
The following members of the Town Council were present:
Mayor: Allan R. Nottingham
Mayor Pro Tem: Sheila R. Davis
Council Members: Don Buick
Al Connell
Steve Miller
Clint Watkins
A. J. Wells
The following members of the Town Council were absent:
The following persons were also present:
Town Manager: William James
Town Attorney: John Dunn
Town Clerk: Patricia Doyle
Thereupon, the following proceedings, among others,
were had and taken:
Council Member introduced the,, following
Resolution, which was read 'by title, sufficient copies havi-ng
previously,been made available to the Council and to the public:
D6612
1
08/02/86
•
TOWN OF AVON, COLORADO
RESOLUTION NO. 86-16
Series of 1986
A. RESOLUTION SUPPLEMENTING ORDINANCE NO. 86-17, SERIES
OF 1986; DETERMINING THE PRINCIPAL AMOUNT, BOND
NUMBERS, PROVISIONS FOR REDEMPTION AND MATURITIES OF,
AND RATES OF INTEREST ON $2,700,000 OF THE TOWN'S
SPORTS FACILITIES REVENUE REFUNDING BONDS (BEAVER CREEK
ASSOCIATES PROJECT), SERIES 1986; DETERMINING REVENUES
TO BE PAID FOR SUCH PROJECT; AUTHORIZING INCIDENTAL
ACTION; AND REPEALING INCONSISTENT ACTIONS.
WHEREAS, the Town Council by Ordinance No. 81-23,-
Series of 1981, approved a sports and recreational facilities
project (the "Project") for Beaver Creek Associates, Inc. (the
"Company") pursuant to the County and Municipality Development.
Revenue Bond Act (the "Act") and issued $2,700,000 aggregate
principal amount of Sports Facilities Revenue Bonds (Beaver Creek
Associates Project), Series 1981 (the "1981 Bonds") which have
been called for redemption on September 1, 1986 pursuant to the
terms of the Trust Indenture under which such 1981 Bonds were
issued; and
WHEREAS, the Town Council by Ordinance No. 86-17,
Series of 1986, finally passed July 22, 1986, approved the
refinancing of the Project and its related costs pursuant to the
Act; and
WHEREAS, the Town has approved a Sports Facilities
Refinancing Agreement dated as of August 1, 1986 (the
"Agreement") with the Company and has determined to refinance the
Project and its related costs by the issuance and delivery of
$2,700,000 in aggregate principal amount of its bonds to be known
as "Sports Facilities Revenue Refunding Bonds (Beaver Creek
Associates Project), Series 1986" (the "Bonds"), to RepublicBank
Dallas, National Association (the "Lender") which Bonds are to be
guaranteed by Vail Associates, Inc.; and
WHEREAS Ordinance No. 86-17, Series of 1986, authorized
the issuance of the Bonds and the determination of final terms
thereof by subsequent resolution of the Town Council.
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF
THE TOWN OF AVON, COLORADO, that:
Section 1. APPROVAL OF AGREEMENT. The form of the
Agreement among the Town, the Company and the Lender presented to
D6612 2 08/02/86
•
CJ
this meeting (copies of which shall be filed with the records of
the Town) are hereby approved, and the Mayor of the Town (the
"Mayor") is hereby authorized to execute and deliver, and the
Town Clerk of the Town (the "Clerk") is hereby authorized to
affix the seal of the Town where appropriate to, and attest, such
documents. in substantially such form and upon the terms and
conditions set forth herein and therein, with such changes
therein as such officers shall approve (including changes-in
dates and amounts necessary to conform such documents to the
final terms as approved by the Company and the Lender), such
approval to be evidenced by their execution thereof. The
appointment of First Interstate Bank of Denver, N.A., as Escrow
Agent under the'Agreement, is hereby confirmed.
In accordance with the requirements of- the Act, the
Town hereby determines that the following provisions shall be as
set forth in the form of Agreement hereinbefore approved, which
form is hereby incorporated herein by reference as if set forth
in full:
(a) Custody of the proceeds from the sale of the
Bonds, including their investment and reinvestment until
used to defray the costs of refinancing the'Project;
(b) The creation of funds or accounts into which
any Bond proceeds, revenues and income may be deposited or
created;
(c) Limitation on the purpose to which proceeds
of any Bonds may be applied;
(d) Limitation on the issuance of additional
bonds, the refunding of Bonds and the replacement of Bonds;
(e) The procedure by which the terms of any
contract with Bondholders may be amended-or abrogated;
(f) Vesting in the Lender such properties,
rights, powers and duties as the Issuer determines and
limiting the rights, duties and powers of the Lender;
(g) The rights and remedies available in case of
a default to the Lender under the Agreement;
(h) The fixing and collection of revenues from
the Project; and
(i) The maintenance and insurance of the Project.
Section 2. TERMS OF BONDS. The Bonds shall be dated
as-of their actual date of delivery, shall be in the aggregate
D6612 3 08/02/86
principal amount of $2,700,000, and shall be issued in
typewritten, fully registered form. The Bonds shall mature,
subject to prior prepayment, on September 1, 1996.
All prepayment provisions of the Bonds shall be as
contained in the form of Agreement previously approved, the terms
of which are hereby reconfirmed.
Interest on the Bonds shall be paid on the first day of
each month commencing on October 1, 1986, and shall be computed
on- the basis of a 360 day year of twelve 30-day months. The
interest rate on the Bonds shall be determined as follows:
Determination of Variable Interest Rate. The Bonds
shall bear interest from the date of delivery at an annual per
centum rate equal to the Variable Rate ("Variable Rate"),
calculated on the basis of a 360-day year and in accordance with
the Agreement, determined by the following formula:
Variable Rate = [Base Rate + ]-[Base Rate x
(1.00-5)x R]
As used in the Bonds, the following terms shall have
the meaning set forth below:
"Prime Rate" means the prime rate of interest
(expressed as a percentage) of RepublicBank Dallas, National
Association as declared from time to time by RepublicBank Dallas,
National Association, it being understood that such prime rate
may not be the lowest rate of interest charged by RepublicBank
Dallas, National Association.
"Base Rate" means the Prime Rate minus 1.00.
"Interest Period" means, with respect to any part of
the outstanding principal of the Bonds bearing interest at a
Fixed'Rate, a quarterly period with interest payable on the first
day of each March, June, September and December.
"Maximum Amount" means the maximum amount of interest
which, under applicable law, the Lender is permitted to charge on
the outstanding principal of the Bonds.
"R" means the highest marginal income tax rate
(expressed as a decimal) imposed on the taxable income of
corporations pursuant to Section 11 or any successor provisions
of the Internal Revenue Code of 1954, as amended (the "Code"),
with respect to the taxation of income of national banks.
"S" means the percentage exclusion (expressed as a
decimal) for financial institution preference items pursuant to
D6612 4 08/02/86
(a) Section 291(a)(3) of the Code or any successor or similar
provision, or (b) any other provision enacted after May 1, 1985,
limiting the deductibility to the registered owner of the Bonds
of interest incurred in connection with the acquiring or owning
of tax exempt bonds, as in effect from time to time.
Notwithstanding the foregoing, neither the Variable
rate nor the Fixed-Rate (as hereinafter defined) shall ever
exceed a rate that would cause the net effective interest rate
from the date of initial delivery of the Bond to the date of
maturity or earlier prepayment of-the Bond to exceed the lesser
of (a) 45% per annum or (b) the maximum rate permitted by law
(the "Maximum Rate").
Determination of Fixed Interest Rate.
[Insert Fixed Rate Formula.]
Section 3. DETERMINATION OF REVENUES. In accordance
with the Act, it is hereby determined that (a) no amount is
necessary for payment into any reserve fund for retirement of the
Bonds and maintenance of the Project and (b) the Company shall be
required under the terms of the Agreement to pay all taxes levied
by the State of Colorado and local taxing bodies with respect to-
the Project. It is hereby determined that, based on'the maximum
interest rate of 45% per annum, no more than the following
amounts will be necessary for the payment of principal and
interest on the Bonds:
Year Endina September 1 Year Ending September 1
1987
$1,215,000
1992
$1,215,000
1988
1,215,000
1993
1,215,000,
1989
1,215,000
1994
1,215,000
1990
1,215,000
1995
1,215,000
1991
1,215,000
1996
3,915,000
Section 4. INCIDENTAL ACTION. The Mayor, Town
Manager, Finance Director and Town Clerk of the Town are hereby
authorized and directed to execute and deliver such other
documents, including acceptances and conveyances of property
interests, and to take such other action as may be necessary or
appropriate in order to effectuate the execution and delivery of
the aforesaid Agreement, (including the approval of changes in
such documents which the Town's counsel approves and which do not
alter the basic terms and substance of the proposed transactions,
such approval to be evidenced by the execution by such officers),
the performance of the Town's obligations thereunder, and the
issuance and delivery of the Bonds to the Lender, all in
D6612 5 08/02/86
accordance with the foregoing Sections hereof and the provisions
of Ordinance No. 86-17, Series of 1986.
Section 5. REPEALER. All acts, orders, resolutions,
or parts thereof, taken by the Town in conflict with this
Resolution are hereby repealed, except that this repealer shall
not be construed so as to revive any.act, order, resolution, or
part thereof, heretofore repealed.
Section 6. RESOLUTION IRREPEALABLE. After the Bonds
are issued and outstanding; this Resolution shall constitute a
contract between the Town and the Lender or other owner of the
Bonds, and shall be and remain irrepealable until the Bonds and
the interest accruing thereon shall have been fully paid,
satisfied and discharged.
Section 7. SEVERABILITY. If any paragraph, clause or
provision of this Resolution is judicially adjudged invalid or
unenforceable, such judgment shall not affect, impair or
invalidate the remaining paragraphs, clauses or provisions
hereof, the intention being that the various paragraphs, clauses
or provisions-hereof are severable.
Section 8. EFFECTIVE DATE. This Resolution shall take
effect immediately upon its passage.
INTRODUCED, READ, APPROVED AND ADOPTED, THIS 12th day
of August, 1986.
[TOWN]
[SEAL]
ATTEST: '
Town-Clerk
Town-of Avon, Colorado
D6612
6
Mayor
Town of Avon, Colorado
08/02/86
Council Member moved that- the foregoing
Resolution heretofore introduced and read by title be approved.
Council Member seconded the motion, and
'the question being upon the approval of the Resolution, the roll
was called with the following results:
Council Members voting "YES":
Mayor:
Mayor Pro Tem:
Council Members:
Council Members voting "NO":
members of the Town Council present having voted
in favor thereof, the Mayor thereupon declared the motion was
carried and the Resolution duly approved.
Thereupon, the Mayor directed that the Resolution be
numbered and recorded in the official records of the Town.
After consideration of other business to come before
the Town Council, the meeting was adjourned.
(TOWN)
(SEAL)
ATTEST:
Mayor
Town of Avon, Colorado
Town Clerk
Town of Avon, Colorado
D6612
7
08/02/86
L1301'5 0
LAW OFFICES
BALLARD,'SPAHR, ANDREWS & INGERSOLL
SEVENTEENTH STREET PLAZA BUILDING
SUITE 2300
1225 17TH STREET
DENVER COLORADO 80202
303 292-2400
TELECOPIER: 303 296-3956
NIKI FRANGOS TUTTLE
September 3, 1986
Allan R. Nottingham, Mayor
Patricia J. Doyle, Town Clerk
P.O. Box 975
Avon, Colorado 81620
Re: Town of Avon/1981 Refunding Bonds
Dear Allan and Pat:
30 SOUTH 17TH STREET
PHILADELPHIA, PA. 19103
215 564-ISOO
TELECOPIER:215 496-0316
TELEX:83-4532
SUITE 1100
1850 K STREET, N. W.
WASHINGTON, D. C.20006
202 466-5800
TELEX: 90-4185
I wanted to inform you that the Closing went smoothly
on August 29, 1986. All of the documents were signed and the
Bond was delivered to RepublicBank Dallas, National Association.
On September 2, 1986,,the 1981 Trustee received the remaining
funds necessary to redeem the 1981 Bonds.
On behalf of Jack Gardner and myself, I want to thank
both of you as well as the other Town Council members for your
help and cooperation in 'connection with the Assuance of the
Sports Facilities Revenue Refunding Bonds. Pat, your prompt
attention to all the posting and publication details and the
completion of the Town proceedings was especially appreciated.
It was a a pleasure meeting both of you, and I hope we have an
opportunity to work together again soon.
Once we receive the bound transcripts from the Closing,
we will forward a copy to the Town.
Best regards,
•
Niki Frangos Tuttle
NFT:cls