Loading...
TC Ord. No. 1984-159 ORDINANCE NO. 84-15 AN ORDINANCE GIVING FINAL APPROVAL TO A PROPOSED INDUSTRIAL DEVELOPMENT PROJECT BY AVON RESORT PROPERTIES, A COLORADO GENERAL PARTNERSHIP, UNDER THE COLORADO COUNTY AND MUNICIPALITY DEVELOPMENT REVENUE BOND ACT AND AUTHORIZING THE ISSUANCE AND SALE OF $10,000,000 INDUSTRIAL DEVELOPMENT BONDS (AVON RESORT PROPERTIES PROJECT), SERIES 1984, TO HELP DEFRAY THE COST OF ACQUIRING AND CONSTRUCTING SAID PROJECT. WHEREAS, there has been presented to this Town Council a proposal by Avon Resort Properties, a Colorado general partnership (the Partnership), that the Town undertake a project pursuant to the Colorado County and Municipality Development Revenue Bond. Act constituting Article 3, Title 29, Colorado Revised Statutes (the Act) to provide financing for constructing a hotel facility (hereinafter called the Project) and; WH-EREAS, under the proposal, the Project will be owned by Avon Resort Properties, and the Partnership will enter into a loan agreement with the Town upon such terms and conditions as are necessary to produce income and revenues sufficient to pay, when due, the principal of and interest on up to approximately $10,000,000 Industrial Development Revenue Bonds of the Town to be issued pursuant to the Act, to provide monies for the Project, and the 'own will pledge its interest in the loan agreement to secure the bonds, and; WHEREAS, the Bonds ,shall be payable solely from amounts received by the Town pursuant to the Loan Agreement and other property pledged to their project; and WHEREAS, the bonds shall not be a general obligation of the Town or be payable from any other property or funds of the Town; and WHEREAS, the purpose the Project is and the effect thereof will be to enable the Town to promote industry and develop a trade or other economic activity by inducing profit- or nonprofit corporations, federal governmental offices, hospitals and agricultural, manufacturing, industrial, commercial, or business enterprises to locate, expand or remain in this state, to mitigate the serious threat of extensive unemployment in parts of this state, to secure and maintain a balanced and stable economy in all parts of. the state, or to further the use of its agricultural products or natural resources, and to provide more adequate facilities for conventions and trade shows, all of which promote the public health, welfare, safety, convenience and prosperity; and -2- WHEREAS, the Town shall receive a demonstrated public benefit involving one or more of the following: a. Provide facilities or benefits to the Town of Avon citizens for economic, recreational, cultural or health purposes in a manner that complements the Town's own program or facilities; b. Carrying out stated goals and objectives of the Town's Comprehensive Master Plan; C. Protecting or enhancing the envirmnntent and general welfare of the residents of the Town; d. Enhancing the financial stability and/or tax base of the Town; WHEREAS, the Partnership has agreed to reimburse the Town for any expenses borne by the Town in connection with the adoption-of this Ordinance, the performance by the Town of its obligations hereunder, the issuance of such industrial Development Revenue Bonds, the preparation of any documents relating thereto, and any legal or financial consultants retained in connection therewith, and; WHEREAS, on the 30th day of December, 1983, by Ordinance No. 83-57, this Town Council gave preliminary approval to said project and authorized the Mayor and other city officials' to initiate preparation of necessary documents; and WHEREAS, said documents have been prepared and reviewed and approved by the Mayor, Town Attorney, and other officials; and WHEREAS, said documents have been presented to the Town Council for its approval; BE IT ORDAINED BY THE TOWN COUNCIL OF- THE TOWN OF AVON, COLORADO: Section 1. All action 4not inconsistent with the provisions of this Ordinance) heretofore taken by the Town, Council and the officers of the Town directed toward the acquisition of the Project and the issuance and sale of the Bonds therefore, be and the same is hereby ratified, approved" and confirmed. All capitalized terms not otherwise defined herein shall have the meaning set forth in the Indenture described herein. Section 2. The Project be, and hereby is, given final approval by the Town. Section 3. To defray the cost of construction of the Project and •the incidental expenses incurred in issuing the Bonds, there is hereby authorized and created an issue of Industrial Development Revenue Bonds to be designated "Town of -3- , • • Avon, -Colorado, Industrial Developement Revenue Bonds ,(Avon Resort Properties Project), Series 1984" in the- aggregate principal amount of 510,000,000. The Bonds shall be in the denomination of $5,000 each, and all Bonds shall be dated as of December 15, 1984. Interest only shall be payable semiannually from the date of the Bonds through December 15, 1987 beginning on June 15, 1985 in the semiannual amount of $350,000, and thereafter, at a floating rate of interest, calculated as set forth in Section 6 hereof, until maturity, prior redemption, or until the date, if any, upon which the Bonds convert from a floating rate to a fixed rate of interest upon the occurrence of certain events (the Conversion Date, as more fully described in Section 6 hereof), and shall mature on December 15 in the following years and amounts: Maturity (Year) Principal Amounts 12/15/1988 50,000 12/15/1989 50,000 12/15/1990 50,000 12/15/1991 100,000 12/15/1992 100,000 12/15/1993 100,000 12/15/1994 100,000 12/15/1995 200,000 12/15/1996 200,000 12/15/1997 200,000 12/15/1998 300,000 12/15/1999 300,000 12/15/2000 300,000 12/15/2001 3.00,000 12/15/2002 400,000 12/15/2003 400,000 12/15/2004 400,000 12/15/2005 500,000 12/15/2006 500,000 12/15/2007 500,000 .12/15/2008 550,000 12/15/2009 600,000 12/15/2010 650,000 12/15/2011 700,000 12/15/2012 750,000 12/15/2013 800,000 12/15/2014 900,000 The Bonds shall be payable, subject to redemption prior to maturity and in substantially the forms as provided herein and in the indenture. The Bonds shall be issued in fully registered form. Pursuant to the Bond Purchase Agreement,. the Bonds shall be sold to the Underwriter at a private sale at a purchase price of three percent (3%) of the principal amount thereof, plus accrued interest from December 15, 1984, to the date of their payment and delivery, which sale is to_ the best advantage of the Town. -4- The principal of and premium, if. any, on all bonds shall be payable upon presentation and surrender of such Bonds at the Principal Office of the Trustee or at the designated - office of any other Paying Agent. Interest on any Bonds shall be, paid on each Interest Payment Date by check or draft drawn on the Trustee mailed to.the person who is the owner of such Bond at the address appearing on the Bond Register at the close of business on the Regular Record Date pertaining to such Interest Payment Date, as more fully described in the Indenture. Section 4. Notice of the call for redemption of Bonds, identifying by designation, letters, numbers, or other distinguishing marks, the Bonds, or portions of Bonds in amounts of Minimum Denomination, or any integral multiple thereof, to be redeemed, the redemption price to be paid, the date fixed for redemption and the place or places where the amounts due upon such redemption are payable, shall be given by the Trustee on behalf of the Issuer by mailing a copy of the redemption notice by first class mail, postage prepaid, at least thirty (30) days prior to the date fixed for redemption to the Owner of each Bond to be redeemed at the address shown on the Bond Register provided, that failure to give such notice by mailing with respect to a particular bond, or any defect in such notice shall not affect the validity of the proceedings for the redemption of- the other Bonds. Section 5. Bonds shall be signed in their official capacities by the Mayor and the Town Clerk, provided that either or both of such signatures may be facsimilies, and shall bear the seal or a facsimile seal of the Issuer if the :Issuer has an official seal. In case any officer whose signature or a facsimile of a signature shall appear on any Bonds shall cease to be such officer before the issuance of such Bonds, such signature or such facsimile shall nevertheless be valid and sufficient-for all purposes,-the same as if he had remained in office until that time. Any Bonds may be executed on behalf of the Issuer by an Officer who, on the date of execution, is the proper officer, although on the date of such Bonds, such person was not the proper officer. No Bonds shall be valid or become obligatory for any purpose or shall be entitled to any security or benefit under the Indenture unless and until a Certificate of Authentication, substantially in,the form set forth herein, shall have been duly endorsed upon such Bond by the Trustee or any Authenticating Agent on behalf of the Trustee. Section 6. The Bonds will bear interest from their date of issuance and original delivery until December 15, 1987, at the rate of seven percent (7%) per annum, and thereafter at a floating rate of interest, calculated as set forth below,- until maturity, prior redemption, or until the date, if any, upon, which the Bonds convert from a floating rate to a fixed rate of interest upon *the occurrence of certain events (the Conversion Date., as more fully described below). -5- - The floating interest rate shall be computed for each seven-day period commencing December 15, 1987, (a "Floating Rate Period") prior to the Conversion Date based upon an index (the "Floating Interest Index") computed on the fourth business day immediately preceding the first day of the Floating Rate Period by Kenny Information Systems (KIS) or asuccessor indexing agent, appointed under the Indenture (the "Indexing Agent")-. The Floating Interest Index is based on yields of tax-exempt securities, selected by the Indexing Agent, with maturities and credit ratings similar to that of the Bonds. The Bonds are subject to conversion on any six-month anniversary of the dated date of the Bonds to a fixed rate of interest. Upon establishment of the Conversion Date, the Trustee will give notice of conversion to a fixed rate to all Bondowners. The Fixed Interest Rate, which will be based upon the Index, will be effective until the final maturity of the Bonds. - The owner of each Bond is entitled to tender the Bond for purchase at a purchase price equal to the principal amount thereof, plus accrued interest, if any, to the date of purchase on the last business day of any Floating Rate Period or on the Conversion Date, upon written notice at least seven days before the purchase date and upon certain other certain 'conditions as set forth in the Indenture. Section 7. The Bonds and the certificates to appear thereon shall be in substantially the following form: -6- (BOND FORM) REGISTERED NO. (FORM OF FACE OF FIXED RATE BOND) Town of Avon, Colorado Industrial Development Revenue Bonds (Avon Resort Properties Project) Interest Rate [Maturity Date: Dated as of: CUSIP % , 19 December 15, 1984 The Town of Avon, Colorado (the "Issuer"), for value received, promises to pay to the order of or registered assigns, but solely from the sources and in the manner hereinafter referred to, the principal sum of dollars on, unless called for earlier redemption, the maturity date shown above, and to pay from those sources interest thereon on each six-month anniversary of the dated date (the "Dated Date") of the Bonds shown above ("Interest Payment Date") at the rate per annum shown above until the principal sum is paid or has been provided for. This Bond will bear interest from the most recent Interest Payment Date to which interest has been paid or duly provided for or, if no interest has been paid, from the Dated Date. The principal and premium, if any, on this Bond are payable upon presentation and surrender hereof at the corporate trust office of the Trustee, currently Philadelphia National Bank, (the "Trustee"). Interest on this Bond will be paid on each Interest Payment Date by check or draft mailed to the person in whose name this Bond is registered ("Owner" or ''Bondowner") on the registration books of the Issuer maintained by the Trustee and at the address appearing thereon at the close of business on the fifteenth day of the calendar month next preceding such Interest Payment Date (the _"Regular Record Date") or at-the option of any owners of $1 million or more in aggregate principal amount of Bonds, by wire transfer to the account on file with the. Trustee of such Record Date. Any such interest not so timely paid or duly provided for shall cease to be payable to the person who is the owner hereof as of the Regular Record Date, and shall be payable to the person who is the owner at the close of business on a Special Record Date for the payment of such defaulted interest. Such Special Record Date shall be fixed by the Trustee whenever moneys become available for payment of the defaulted interest, and notice of the Special Record Date shall be given to Bondowners not less than ten days prior thereto. The principal -7- • of and premium, if any, and interest on this Bond are payable in lawful money of the United States of America without deduction for the services of the paying agent. REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS BOND SET FORTH ON THE REVERSE HEREOF AND SUCH PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH HERE. It is hereby certified and recited that all acts and conditions necessary to be done or performed by the Issuer or to have happened precedent to and in the issuing of the Bonds in order to make them legal, valid and binding special obligations of the Issuer in accordance with their terms, and,precedent to and in the execution and delivery of the Indenture and the Agreement, have been performed and have happened in regular and due form as required by law; that payment in full for the Bonds has been received; and that the Bonds do not exceed or violate any-constitutional or statutory limitation. -8- i Date of Registration and Authentication: FORM OF TRUS- TEE'S CERTIF- ICATE OF AUTH- ENTICATION) This Bond is one _of the Bonds described in the within-mentioned Indenture. Trustee By Authorized Officer 0 Seal IN WITNESS OF THE ABOVE, the Issuer has caused this Bond to'be executed in the name of the Issuer and in their official capacities by the manual or fac- simile signatures of its Executive and Clerical officer as of (FORM OF REVERSE OF BOND) This Bond is one of an issue of Bonds in an aggregate principal amount of $10,000,000, authorized and issued pursuant to an indenture, dated as of the Dated Date (the "Indenture") between the Issuer and the Trustee, for the purpose of providing funds to lend to Avon Resort Properties, a Colorado general partnership (the "Partnership") to finance the costs of acquiring and constructing a hotel facility project (the "Project") pursuant to a Loan Agreement (the "Loan Agreement") between the Issuer and the Partnership. Pursuant to the Loan Agreement and a promissory note made by the Partnership, each dated as of the Dated Date, the Partnership has agreed to make payments sufficient to pay the principal of and interest and any premium on all bonds* issued under the Indenture. The term "Trustee" as used herein refers to said Trustee or any successor Trustee appointed pursuant to the Indenture. The Indenture and the other documents herein described are on-file in the offices of the Issuer and the Trustee. Reference is hereby made to the Indenture for a more complete description of the provisions, among others, with respect to the nature and extent of the security, the rights, duties and obligations of the Issuer, the Trustee and the owners of the Bonds, and the terms and conditions upon which the Bonds are issued and secured, to all of the provisions of which Indenture, each owner, by the acceptance hereof, assents. The Bonds are issued pursuant to the laws of the State of Colorado, and to a resolution or ordinance duly enacted by the governing body of the Issuer. The Bonds are special obligations of the Issuer, and the principal of and premium, if any, and interest on the Bonds (the "Bond services charges") are payable solely from the Revenues as defined and as provided in the Indenture (being, generally, the payments and other amounts payable under the Agreement) and are not otherwise an obligation of the Issuer. The Bonds are not secured by an obligation or -9- 0 pledge of any moneys raised by`taxation and do not represent or constitute a debt or pledge of the faith and credit of the Issuer. The Bonds are issuable solely as fully registered bonds in the denominations of .$5,000 and'any integral multiple thereof and are exchangeable for fully registered Bonds of other denominations in equal aggregate principal amounts and in authorized denominations at the aforesaid office of the Trustee, but only in the manner, subject to the limitations and on payment of the charges provided in the Indenture. This Bond is transferable by the owner in person or by his attorney,duly authorized in writing at the corporate trust office of the Trustee as Bond Registrar upon presentation and surrender hereof to the Trustee, all subject to the terms and conditions provided in the Indenture. The Bonds are subject to mandatory redemption at par (except for paragraph '(e) below) plus accrued interest thereon to the date of redemption, as described below: (a) In whole or in part on the date 35 months after the Delivery Date of the Bonds, to the extent funds in the Construction Fund under the Indenture are not advanced to the Partnership or reserved to acquire, construct, develop or equip the Project by the date which is 35 months after the date of issuance of the Bonds. (b) In whole upon foreclosure or acceleration of the Partnership Note, on the first Bond interest payment date which is at least 60 days after such foreclosure or acceleration. (c) In whole on any Bond interest payment date immediately following an Event of Default under the Reimbursement Agreement between the Partnership and the Bank. (d) on the first feasible Bond interest payment date, upon the damage, destruction or condemnation of the Project to the extent any insurance or condemnation proceeds are not applied to repair or restore the Project or if the Trustee determines it will not be feasible to repair or restore the Project to operation as a residential rental project within 12 months after the damage, destruction or condemnation. (e) The Bonds are also subject to mandatory redemption upon the optional prepayment by the Partnership of the Partnership Note in whole or in part on any Bond interest payment date, on or after December 15, 1989, at the redemption prices equal to the following percentages of the principal amount redeemed plus accrued interest to the redemption date: -10- 1] Redemption Date • Redemption Price December 15,- 1989 and June 15, 1995 103% December 15, 1995 and June 15, 1999 102% December 15, 1999 and June 15, 2004 101% December 15, 2004 and thereafter 100% Rights of redemption of the Bonds shall be exercised by notice, specifying the Bonds or portions thereof to be called, the redemption price to be paid, the date fixed for redemption and the place or places where the amounts due upon such redemption are payable. Such notice, subject to the provisions of the Indenture therefor, will be sent by first class mail, postage prepaid, not less than 30 days prior to the date fixed for redemption to the owner of each Bond to be redeemed at the address shown on the registration books kept by the Trustee. Reference is made to the Indenture for provisions as to failure to give, or any defect in, such mailed notice. The Trustee will not be required to transfer or exchange (i) any Bond during a period beginning at the opening of business fifteen (15) days before the day of the mailing of a notice of redemption of Bonds and ending at the close of business on the day of such mailing, or ('ii) any Bonds so selected for redemption in whole or in part. If less than all the Bonds are called for redemption at one time, they shall be called in inverse order of maturity if there is more than one maturity, and if there is only one maturity or if the Bonds of- a single maturity are to be redeemed, the selection of such Bonds, or portions thereof in amounts of $5,000 or any integral multiple thereof, to be redeemed shall be made by lot by the Trustee in such manner as the Trustee may determine. If Bonds or portions thereof are duly called for redemption and if on such redemption date moneys for the redemption thereof, together with interest thereon to the redemption date, shall be held by the Trustee so as to be available therefor, then from and after such redemption date such Bonds or portions thereof shall cease to bear interest, and such Bonds or portions thereof no longer shall be protected by, and shall not be deemed to be outstanding under, the Indenture. 11 Except as provided in the Indenture, the Bond Owners are not entitled to enforce the provisions of the Indenture or to institute, appear in or defend any suit, action 'or proceeding or to enforce any provisions of the Indenture or to take any action with respect to any Event of Default under the Indenture. The Indenture permits certain amendments or supplements to the Agreement and various related documents not prejudicial to the Bond Owners to be made with the consent of the Trustee, but without the consent of or notice to the Bond Owners and other amendments or supplements thereto (with certain exceptions as provided 'in the Indenture) to be made with the consent of the owners of not-less than 66-2/3% in aggregate principal amount of the Bonds at the time outstanding. -11- If an Event of Default, as defined in the Indenture, shall occur, the principal of Bonds then outstanding may be declared due'and payable in the manner and with the effect provided by the Indenture, but subject to waiver of such Event of Default or rescission of such declaration as provided in the Indenture. The Bonds shall not constitute the personal obligation, either jointly or severally, of the members of-the governing body or any other officer of the Issuer. This Bond shall not be entitled to any security or benefit under the Indenture or become valid or obligatory for any purpose until the certificate of authentication hereon shall have been signed by the Trustee. -12- 0 • (FORM OF ASSIGNMENT) Assignment For value received, the undersigned hereby sells, assigns and transfers unto the within Bond and does hereby irrevocably constitute and appoint attorney ' to transfer the said Bond on the books kept for. registration of the-within Bond, with full power of substitution in the premises. Dated: Signature Guaranteed: Notice: The assignor's signature to this assignment must correspond with the name as it appears upon the face of the within Bond in every particular, without alteration or any change whatever. -13- • (BOND FORM--FLOATING RATE) (FORM OF FACE OF BOND) REGISTERED NO. Town of Avon, Colorado Industrial Development Revenue Bonds (Avon Resort Properties Project) Maturity Date: Dated as of: December 15, 19 December 15,, 1984 CUSIP: Town of Avon, Colorado (the "Issuer"), for value received, promises to pay to the order of or registered assigns, but solely from the sources and in the manner hereinafter referred to, the principal sum of on, unless called for earlier redemption, the maturity date shown above and to pay from those sources interest thereon on each six-month anniversary of each June 15 and December 15, until December 15, and on the first day of each month thereafter (on each six-month anniversary of December 15, 1986), at least 45 days after the Conversion Date, if any, as described below) commencing June 15, 1985, ("Interest Payment'' Date") at the rate of interest described below until the principal sum is paid or has been provided for. This Bond will bear interest from the most recent Interest Payment Date to which interest has been paid or duly provided for or, if no interest has been paid, from the Dated Date. The principal of and premium, if any, on this Bond are payable upon presentation and surrender hereof at the corporate trust office of the Trustee, currently Philadelphia National Bank (the "Trustee"). Interest on this Bond will be paid on each Interest Payment Date by check or draft mailed to the person in whose name this Bond is registered ("owner" or "Bond owner") on the registration books of the Issuer maintained by the Trustee and at the address appearing thereon at the close of business on the day preceding such Interest Payment Date (the 15th calendar day immediately preceding the Interest Payment Date whenever interest is paid semiannually) (the "Regular Record Date") or at the option of any owner of $1 million or more in aggregate principal amount of Bonds, by wire transfer to the account -on file with the Trustee of such Record Date.. Any such interest not so timely paid or duly provided for shall cease to payable to the person who is the owner hereof as of the Regular -14- • • Record Date, and shall be payable to the person who is the owner at the close of business on a Special Record Date for the payment of such defaulted interest. Such Special Record Date shall be fixed by the Trustee whenever moneys become available for payment of the defaulted interest, and notice of the Special Record Date shall be given to Bond Owners not less than ten (10) days prior thereto. The principal of and premium, if any, and interest on this Bond are payable in lawful money of the United States of America without deduction for the services of the paying agent. REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS BOND SET FORTH ON THE REVERSE HEREOF AND SUCH PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH HERE. It is hereby certified and recited that all acts and conditions necessary to be done or performed by the Issuer or to have happened precedent to and in the issuing of the Bonds in order to make them legal, valid and binding special obligations of the Issuer in accordance with their terms, and precedent to and in the execution and delivery of the Indenture and the Agreement, have been performed and have happened in regular and due form as required by law; that payment in full for the Bonds has been received; and that the Bonds do not exceed or violate any constitutional or statutory limitation. -is- 11 Date of Registration and Authentication: i FORM 'OF TRUS- Seal TEE'S CERTIF- ICATE OF AUTH- ENTICATION) This Bond is one of the Bonds described in the within-mentioned Indenture. IN WITNESS OF THE ABOVE, the Issuer has caused this Bond to be executed in the name of the Issuer and in . their official capacities by the manual or fac- simile signatures of its Executive and Clerical officer as of Trustee By Authorized Officer (FORM OF REVERSE OF BOND) This Bond is one of an issue of Bonds in an aggregate principal amount-of $10,000,000, authorized' and issued pursuant to an indenture, dated as of the Dated Date (the "Indenture") between the Issuer and the Trustee, for the purpose of providing funds to lend to Avon Resort Properties, a Colorado general partnership (the "Partnership") to finance the costs of acquiring and constructing a hotel facility project (the "Project") pursuant to a Loan. Agreement dated as of the Dated Date (the "Loan Agreement") between the Issuer and the Partnership. Pursuant to the Loan Agreement and a promissory note made by the Partnership, the Partnership has agreed to make - ,payment sufficient to pay the principal of and interest and, any premium on all Bonds issued under the Indenture. ' The term "Trustee" as used herein refers to said Trustee or any successor Trustee appointed pursuant to the Indenture. The Indenture and the other documents herein described are on file in the offices of the Issuer and the Trustee. Reference is hereby made to the Indenture for a more complete description of the provisions, among others, -with respect to the nature and extent of the security, the rights, duties and obligations of the Issuer, the Trustee and the owners of the Bonds, and the terms and conditions upon which the Bonds are issued and secured, to all of the provisions of which Indenture, each owner, by the acceptance hereof, assents. The Bonds are issued pursuant to the laws of the State of Colorado, and to a resolution or ordinance duly enacted by the governing body of the Issuer. The Bonds are special obligations of the Issuer, and the principal of and premium, if any, and interest on the Bonds (the "Bond service charges") are payable solely from the Revenues as defined and as provided in the Indenture (being, generally, the payments and other amounts payable under the Agreement) and are not otherwise an obligation . -16- of the Issuer. The Bonds are not secured by an obligation or pledge of any moneys raised by taxation and do not represent or constitute a debt or pledge of the faith and. credit of the Issuer. Registration, Transfer and Exchange. The Bonds are issuable solely as fully registered bonds in the denominations of $5,000 and any integral multiple thereof and are exchangeable for fully registered Bonds of other denominations in equal aggregate principal amounts and in authorized denominations at the aforesaid office of the Trustee, but only in the manner, subject to the limitations and on payment of the charges provided in the Indenture. This Bond is transferable by the owner in person or by his attorney duly authorized in writing at the corporate trust office of the Trustee as Bond Registrar upon presentation and surrender hereof to the Trustee, all subject to the terms and conditions provided in the Indenture. Interest Rates. The Bonds will bear interest from their date of issuance and original delivery until December 15, 1987, at the rate of seven percent (7%) per annum; and thereafter at a floating rate of interest, calculated as set forth below, until maturity, prior redemption, or until the date, if any, upon which the Bonds convert from a floating rate to a fixed rate of interest upon the occurrence of certain events (the "Conversion Date," as more fully described below). Interest payable on the Bond shall be computed on the basis of a year of 360 days composed of twelve 30-day months. The floating interest rate shall be computed for each week (a "Floating Rate Period") prior to the Conversion Date based upon an index (the "Floating Interest Index") computed on the fourth business day immediately preceding the first day of the Floating Rate Period by Kenny Information Systems (KIS) or a successor indexing agent appointed under the Indenture (the "Indexing Agent"). The Floating Interest Index is based on yields of tax-exempt securities, selected by the Indexing Agent, with maturities and credit ratings similar to that of the Bonds. The floating interest rate shall be a rate which, if borne by the Bonds, would, in the judgment of the Remarketing Agent, giving due regard to prevailing market conditions, be 'the interest rate necessary to enable. the Remarketing Agent to remarket the Bonds at par, as more fully described in the Indenture. In no event ma.y the interest rate for any Floating Rate Period be less than 80% nor greater than 120% of the Floating Interest Index, as more fully described in the Indenture. The Bonds are subject to conversion to a fixed rate upon direction by the Partnership specifying the Conversion Date, which must be an Interest Payment Date at least 30 days after the date of Partnership direction. The direction, to be effective, -17- must be accompanied by an opinion of nationally recognized bond counsel stating that the establishment of a fixed interest rate is permitted -by the Indenture and the statute, ordinance or charter pursuant to which the Bonds-were issued-and will not have an adverse effect upon the tax-exempt status of the Bonds. Upon establishment of the Conversion Date, the Trustee will give notice to all Bond owners of conversion to a fixed rate. The fixed interest rate will be calculated by the Remarketing Agent and shall be that rate which, if borne by the Bonds, would, in the judgment of the Remarketing Agent (based on a Fixed Interest Index computed by the Indexing Agent in like fashion described above for the Floating Interest Index), giving due regard to prevailing market conditions, be the rate necessary to enable the Remarketing Agent to remarket the Bonds at par, as more fully described in the Indenture. In no event may the fixed interest rate be less than 80% of the Fixed Interest Index or greater than 120% of that Index. The fixed interest rate will be effective until the final maturity of the Bonds. However, in the event the Letter of Credit expires by its terms prior to the final maturity of the Bonds (such termination date, the "Rollover Date"), the fixed interest rate will be effective only until the Rollover Date. Following any Rollover Date, the Bonds will bear interest at a floating rate, as described above, unless and until converted to a fixed rate, which conversion may be effective as early as the Rollover Date. Demand Purchase option and Remarketing. The owner of this Bond shall be entitled to tender this Bond for purchase at a price price equal to the principal amount hereof, plus accrued interest, if any, to the date of purchase on the last business day of any Floating Rate Period or' on any Rollover Date upon (i) receipt* by Matthews and Wright, Inc. or its successor as remarketing agent.under the Indenture, in New York, New York, at least seven (7) days before the purchase date of a written notice that states the principal amount of such Bond and (ii) receipt of the 'following to the New York office of Philadelphia National Bank, or its successor as tender agent under the Indenture (the "Tender Agent") at or prior to 10:00 a.m., New York time on the purchase date: (a) the Bond (with all.necessary endorsements), (b) a copy of the notice described in (i) above, (c) instructions for the payment of the purchase price (by wire transfer or by check or draft mailed or delivered in person at the New York office of the Tender Agent on the purchase date and (d) in the case of a Bond to be purchased prior to a Bond interest payment date and after the Record Date immediately preceding such interest payment date, a due-bill check, in form satisfactory to the Tender Agent, for interest due on such interest payment date. Notwithstanding the foregoing, no Bonds will be purchased if an Event of Default under the Indenture or the Agreement has occurred and is continuing. -18- • Redemption. The Bonds are subject of mandatory redemption at par (except for the final lettered paragraph immediately below) plus accrued interest thereon to,the date of redemption, as described below: (a) In whole or in part on the date 36 months after the Delivery Date, to the extent funds in the Construction Fund under the Indenture are not advanced to the Partnership or reserved to acquire, construct, develop or equip the project by the date which is 35 months after the date of issuance of the Bonds. (b) In whole upon foreclosure or acceleration of the Partnership Note, on the first Bond interest payment date which is at least 60*days after such foreclosure or acceleration. (c) In whole on any Bond interest payment date immediately following an Event of Default under the Reimbursement Agreement between the Partnership and the Bank. (d) In whole at the end of any Floating Rate Period at the direction of the Bank or the Partnership given at least 30 days before, the end of such period, accompanied by moneys sufficient to effect redemption. (e) On the first feasible Bond interest payment date, upon the damage, destruction or condemnation of the Project to the extent any insurance or condemnation proceeds are not applied to repair or restore the Project or if the Trustee determines it will not be feasible to repair or restore the Project to operation as a residential rental project within 12 months after the, damage, destruction or condemnation. (f) In whole upon failure to obtain alternate security prior to the end of the first, floating rate period unless Alternate Security is then in, place or, thereafter, upon expiration of- the Alternate Security. (g) Once the Bonds have been' converted to a fixed rate, the Bonds are also subject to mandatory redemption upon the optional prepayment by the Partnership of its Note, accompanied 'by sufficient funds to effect the redemption, in whole or in part on any Bond interest payment date on or after the Bond interest payment date which is at least the lesser of 8 years or that number of years equal to 2/3 of the time between the Conversion Date and the final maturity of the Bonds or the Rollover Date if sooner rounded down to an integral number of years. The Bonds shall be redeemed in such case at a redemption price equal to 103% of the principal amount of bonds to be redeemed for the first such permitted redemption date (1028 if the number of years above is less than six) and reducing 18 (but not below 1008) for each second Bond interest payment date thereafter, in each case, together with accrued interest to the redemption date. -19- Rights of redemption of the Bonds shall be exercised by notice, specifying the Bonds or portions thereof to be called, the redemption price to be paid, the date fixed for redemption and the place or places where the amounts due upon such redemption are payable. Such notice, subject to the provisions of the Indenture therefor, will be sent by first class mail, postage prepaid, not less than 30 days prior to the date fixed for redemption to the Owner of each Bond to be redeemed at the address shown on the registration books kept by the Trustee, Reference is made to the Indenture for provisions as to failure to give, or any defect in, such mailed notice. The Trustee will not be required to transfer or exchange (i) any Bond during a period beginning at the opening of business fifteen days before the day of the mailing of a notice of redemption of Bonds. and ending at the close of business on the date of such mailing, or (ii) any.bonds so selected for redemption in whole or in part. If less than all. the Bonds are called for redemption at one time, they shall be called in inverse order of maturity if there is more than one maturity, and if there is only one maturity or if the Bonds of a single maturity are to be redeemed, the selection of such Bonds, or portions thereof in amounts of $5,000 or any integral multiple thereof, to be redeemed shall be made by lot by the Trustee in such manner" as the Trustee -may determine. 'If' Bonds or portions thereof are duly called for redemption and if on such redemption date moneys for the redemption thereof, together with interest thereon to the redemption date, shall be held by the Trustee so as to be available therefor, then from and after such redemption date such Bonds or portions thereof shall cease to bear interest, and such Bonds or portions thereof no longer shall be protected by, and shall not be deemed. to be outstanding under, the Indenture. Except as provided in the Indenture, the Bondowners are not entitled to enforce the provisions of the Indenture or to institute,. appear in or defend any suit, action or proceeding or to enforce any provisions of -the Indenture or 'to take any action with respect to any Event of Default under the Indenture. The Indenture permits certain amendments or supplements to the Agreement and various related documents not prejudicial to the bondholders to be made with the consent of the Trustee, but without the consent of or notice to the bondowners and other amendments or supplements thereto (with certain exceptions as provided in the Indenture) to be made with the consent of- the holders of not less than 66-2/3%' in aggregate principal amount of the Bonds at the time outstanding. If the Event of Default, as defined in the Indenture, shall occur, the principal of Bonds then outstanding may be declared due and payable in the manner and with the effect provided by the Indenture, but subject to waiver of such Event of Default or rescission of such declaration as provided in the Indenture. -20- The Bonds shall not constitute' the personal obligation, either- jointly or severally, of the members of the governing body or any other officer of the Issuer. This -Bond shall not be entitled to any security or benefit under the Indenture or become valid or obligatory for any purpose until the certificate of authentication hereon shall have been signed by the Trustee. I i R -21- (FORM OF ASSIGNMENT) Assignment For value received, the undersigned hereby sells, assigns and transfers unto the within Bond and does- hereby irrevocably constitute and appoint attorney to transfer the said Bond on the books kept for registration of the within Bond, with full power of substitution in the premises. Dated: Signature Guaranteed: Notice: The assignor's signature to this assignment must correspond with the name as it appears upon the face of the within Bond in every particular, without alteration ` or any change whatever. -22- Section 8. The following determinations and findings are hereby made in accordance with the Act: (a) The Bond Fund has been established -with the Philadelphia National Bank in Philadelphia, Pennsylvania from of the proceeds of this issue of Bonds (b) Interest only shall be payable semiannually from the date of the Bonds through December 15, 1987 beginning on June 15, 1985 in the semiannual amount of $350,000 and the loan shall be- amortized thereafter, at a floating rate of interest, calculated as set forth in Section 6 hereof, until maturity, prior redemption, or until the date, if any, upon which the Bonds convert from a floating rate to a fixed rate of interest upon the occurrence of certain events (the Conversion Date, as more fully described in Section 6 hereof). (c) The amounts payable under the Loan Agreement, in addition to all other requirements of the Agreements and this ordinance are sufficient to pay all sums referred to in paragraph (b) of this Section. Section 9. The forms, terms and provisions of the Bond Purchase Agreement, Loan Agreement, Deed of Trust and Security Agreement, Trust Indenture and Partnership Note be and they hereby, are approved, and the Town shall enter into the )fond Purchase Agreement, Trust Indenture, Loan Agreement, Deed of Trust and Security Agreement and Partnership Note in the forms of each of such documents presented to the Town Council at this meeting, with such changes therein as are not inconsistent herewith and with, any supplemental 'resolution to be adopted by the Town Council, and the Mayor of the Town is hereby authorized to execute and deliver such documents including the Bond Purchase Agreement which may be executed by the Mayor upon the final passage of this ordinance subject to the right of the Mayor to veto this Ordinance and the ordinance becoming effective following final publication of this ordinance, and the Town Clerk is hereby authorized to affix the Town seal to and attest the Loan Agreement and the Indenture. Section 10. The form, terms and provisions of the Preliminary Official Statement be and they hereby are approved, and the Mayor of the Town is hereby authorized to execute and deliver an Official Statement substantially in the forms of the Preliminary Official Statement presented to-the Town Council at this meeting, with such changes therein as are not inconsistent herewith and with any supplemental resolution to be adopted by the Town Council, and the Underwriter is hereby authorized to use the Preliminary Official Statement and the Official Statement in connection with the resale of the Bonds. -23- Section 11. The Mayor, or another officer of the Town, is hereby authorized to execute and deliver to the Trustee the written request and authorization of the Town for the authentication and delivery of the Bonds by the Trustee. Section 12. The Treasurer of the Town is hereby authorized and directed to sign and file or cause to be filed the Capital Expenditures Statement, thereby electing on behalf of the Town to have the provisions of Section 103(b)(6)(D) of the Internal Revenue Code of 1954, as amended, apply to the Bonds. Such statement shall contain the information and shall be filed at'the place required by the income tax regulations promulgated under said Section 103(b)(6)(D). Section 13. The officers of the Town shall take all action necessary or reasonably required by the parties to the Bond Purchase Agreement to effectuate its provisions_'and shall take all action necessary to des..irable in conformity with the Act to acquire the Project and for carrying out the transactions contemplated by this ordinance, including without limitation the execution and delivery of any closing documents to be delivered in connection with the sale and delivery of the Bonds. Section 14. The entire cost of acquiring the Project will be paid out of the proceeds of the Bonds and none of the bonds, will be the general obligation of the town nor shall any of the Bonds, including interest thereon, constitute the debt or indebtedness of the Town within the meaning of the Constitution or statutes of -the State of Colorado nor shall anything contained in this ordinance or in the Bonds, Indenture, Bond Purchase Agreement; Preliminary official Statement, Official Statement or Capital Expenditures Statement, or any other instrument give rise to a pecuniary liability or a charge upon the general credit or taxing powers of the Town, nor shall.the.breach of any agreement contained in this ordinance, the Indenture,'Bdnds, Bond Purchase Agreement, Preliminary official Statement, Official Statement or Capital Expenditures Statement or any other instrument impose any pecuniary liability upon the Town or any charge upon its general credit or against its taxing power, the Town having no power to pay out of its general funds, or otherwise contribute any part of the costs of acquiring the Project, nor power to operate the Project as a business or in any manner, nor shall the Town condemn any land or other property for the Project nor contribute any land or other property to the Project. Section 15. After any of the Bonds are issued, this ordinance shall be and remain irrepealable until the Bonds and the interest thereon shall have been fully paid, cancelled and discharged. -24- Section 16.. If any, section, 'paragraph, clause or provision of this ordinance shall for any reason.be held to be invalid or unenforceable, the invalidity or unenforceability of such Section, paragraph, clause or provision, shall not affect any of the remaining provisions of this ordinance. Section 17. All by-laws, orders, resolutions and ordinances, or parts thereof, inconsistent herewith are hereby repealed to the extent only of such inconsistency. This repealer shall not be. construed as reviving any by-law, order, resolution or ordinance, or-part thereof. Section 18. This ordinance shall be deemed effective from its passage, approval and publication as required by law, the ordinances of and the Charter of the Town of, Avon. Section 19. The Notice of Public Hearing shall be given in the following form: -25- NOTICE OF PUBLIC HEARING NOTICE IS HEREBY GIVEN that at a Council meeting of the Town Council of the Town of Avon, State of Colorado, to be held on December , the 27th day of December, 1984, at the hour of 7.00 p.M., at the Avon Municipal Building, 400 Benchmark Road, Avon, Colorado, the Town Council will hold a public hearing concerning the proposed issuance by the Town of industrial development revenue bonds in a maximum aggregate principal amount of $10,000,000. for Avon Resort Properties, a Colorado general partnership, for the purpose of financing the acquisition and improvement of land, and the construction and equipping of a building thereon, and all necessary and appurtenant real and personal properties, whether or not now in existence, suitable for use as a hotel facility within the Town (the Project). The hotel facility-to be financed shall consist of a 150- room resort/roadside hotel at the I-70 Avon/Beaver Creek Exit with a 120-seat restaurant/coffee shop, 90-seat lounge, 235-seat banquet/meeting rooms, 90,000 square foot building, 6-story room tower, 6,000, square foot Holidome with peakadash. dining, areas. The initial owner of the facility shall be Avon Resort Properties, a Colorado general partnership. The initial management of the facilities shall be professional resort hotel management by The Stanford Company. The prospective location of the facility shall be at the Avon/Beaver Creek Exit of Interstate Highway 70; the site of the Project is more specifically designated as Lot 1, A resubdivision of Lots 5, 52A and 52B, Block 1, Benchmark at Beaver Creek Subdivision, Town of Avon, Eagle County, State of Colorado, Lot 1 shall be reduced by approximately 1 acre- but shall meet the Town of Avon requirements for a 150-unit hotel'. The Bonds shall never constitute a charge against the general credit or taxing power of the Town, nor are the Bonds a general obligation of the Town. All persons with views on either the issuance of the Bonds, the location or nature of the Project, or other issues arising out of the Project, will be given' a reasonable opportunity to be heard. THIS NOTICE GIVEN BY ORDER of the Town Council of the Town of Avon, State of Colorado, as of the 13thday of December, 1984. /s/ Patricia J. Doyle County Clerk Publish in: Publish on: December 13, 1984 -26- INTRODUCED, ADOPTED AND APPROVED BY THE Mayor and the Town Council constituting the governing body of the Town of Avon, Eagle County, Colorado, on First Reading this 11th day of December, 1984. s/Sheila R.-Davis - Mayor Pro-Tem' ( SEAL ) Attest: s/Patricia J. Doyle Town Clerk INTRODUCED, READ BY TITLE ONLY AND FINALLY APPROVED BY the Mayor and the Town Council constituting the governing body of the Town of Avon, Eagle County, Colorado, on Second Reading this 21st day of December, 1984. ' Mater Pro Tem (S E A L) Attest: q/P a i- r i,.r_ i a -D~n41P Town Clerk -27- It was then moved by Council Member Watkins that the ordinance be approved upon first reading and that said ordinance be considered for approval on second reading at a meeting of teh Town Council on Thursday, the 20th day of December, 1984., at the hour of 12:00 Noon. Council Member Miller seconded the motion. The question being upon the passage and adoption of'the ordinance, the roll was called with the following result: Those voting YES: Council'Members: Don Buick Al Connell Stephen Miller "Clinton Watkins A.J. Wells Allan Nottingham and A.Z. Wells abstained Those voting NO: The presiding officer thereupon declared that, a majority of all the Council Members elected having voted - in favor thereof,. the motion was carried and the ordinance duly approved,. On motion duly adopted, it was ordered that the Ordinance be numbered 84-15 , and after approval by the Mayor, be published in the Eagle Valley Enterprise, a newspaper of general circulation within the Town of Avon, and that Notice of a Public Hearing on the ordinance, to be held on the 27th day of December, 1984 at 7:00 P.M. at the Avon Municipal Building, 400 Benchmark Road, Avon, Colorado, be published in the form provided in Section 19 of this ordinance. After consideration of other business to come before the City Council, the meeting was adjourned. s/Sheila R. Davis Mayor Pto Tem ( S E A L ) ATTESTED:, s/Patricia J. Doyle Town Clerk -28- STATE OF COLORADO ) COUNTY OF EAGLE ) TOWN OF AVON ) I, Patricia J. Doyle, Town Clerk of the Town of Avon, Eagle County, Colorado, do hereby certify that the foregoing pages 1 to 27, inclusive, constitute a true and correct copy of the Record of Proceedings of the Town Council of the Town, taken at a regular meeting of the Town Council, held at,the Avon.Municipal Building, in Avon, Colorado, on Tuesday, the llth day of December, 1984, commencing at the hour of 7:30 p.m, as recorded in the official Record of the Proceedings of the Town kept in my office, insofar as said proceedings relate to an ordinance authorizing the issuance of its Industrial Development Revenue Bonds (Avon Resort Properties Project), Series 1984, dated December 15, 1,984, in the aggregate principal amount of. $10,000,000; that said proceedings were duly had and,•taken; that the meeting was duly held; and that the persons were present at said meeting as therein shown. That attached hereto is an Affidavit of Publication of said ordinance as passed and. adopted by the Town Council at said meeting; that the original ordinance has been duly authenticated by the signatures of the Mayor and myself, as Clerk of the Town, sealed with the corporate seal of the Town, and signed and recorded in the Book of ordinances of the town kept for that purpose in my office. IN WITNESS affixed the seal December, 19 8 4. ( S E A L ) WHEREOF, I have hereunto subscribed my name and of the Town of Avon, Colorado, this -13thday of -29- • 0 STATE OF COLORADO ) COUNTY OF EAGLE ) SS TOWN OF AVON ) NOTICE IS HEREBY GIVEN OF A PUBLIC HEARING BEFORE THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, AT 12:00 NOON ON THE 20TH OF DECEMBER, 1984, AT THE MUNICIPAL BUILDING, 400 BENCHMARK ROAD, AVON, COLORADO FOR THE PURPOSE OF CONSIDERING THE ADOPTION OF ORDINANCE NO.84-15, SERIES OF 1984: AN ORDINANCE GIVING FINAL APPROVAL TO A PROPOSED INDUSTRIAL DEVELOPMENT PROJECT BY AVON RESORT PROPERTIES, A COLORADO GENERAL PARTNERSHIP, UNDER THE COLORADO COUNTY AND MUNICIPALITY DEVELOPMENT REVENUE BOND ACT AND AUTHORIZING THE ISSUANCE AND SALE OF $10,000,000 INDUSTRIAL DEVELOPMENT BONDS(AVON RESORT PROPERTIES PROJECT), SERIES 1984, TO HELP DEFRAY THE COST OF ACQUIRING AND CONSTRUCTING SAID PROJECT A copy of said Ordinance is attached hereto and is also on file at the office of the Town Clerk and may be inspected during regular business hours. Following this hearing the Council may consider final passage of this ordinance. r This notice given and passed by order of the Town Council of the Town of Avon, Colorado. Dated this 13th day of December, 1984. TO OF VON, COLORADO B POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF AVON ON DECEMBER 14, 1984: THE MAIN ENTRANCE OF THE POST OFFICE THE MAIN ENTRANCE TO CITY MARKET THE PESTER GAS STATION; AND THE MAIN LOBBY IN THE MUNICIPAL BUILDING `,~93-3