Loading...
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 D6612 3 08/11/86 W • 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 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, D6612 5 08/11/86 0 0 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 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 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 D6612 7 08/11/86 0 • 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 • 0 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: D6612 2 08/11/86 0 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 D6612 8 08/11/86 D6612 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:,~~. ~ 'II'r; ^li:~ ~i ,df I rV 11 l/~~~~ ! ' _ _ ~ ~ ~11~ ~ ~ G 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 A1136 i 08/06/86 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. A1136 2 08/06/86 (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 0 0 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 0 0 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 0 0 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