As filed with the Securities and Exchange Commission on March 25, 2004
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
_______________________
FORM S-4
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
02010
VAIL RESORTS, INC.
(Exact name of registrant as specified in its charter)
Delaware 7990 51-0291762
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer Identification Number)
incorporation or organization) Classification Code Number)
_______________________
137 Benchmark Road
Avon, Colorado 81620
(970) 845-2500
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
_______________________
See Table of Additional Registrants
_______________________
Martha D. Rehm, Esq.
Senior Vice President and General Counsel
Vail Resorts, Inc.
Post Office Box 7
Vail, Colorado 81658
(970) 845-2500
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
_______________________
Copy to:
James J. Clark, Esq.
Luis R. Penalver, Esq.
Cahill Gordon & Reindel LLP
80 Pine Street
New York, New York 10005
(212) 701-3000
_______________________
Approximate date of commencement of proposed issuance of the securities to
the public: As soon as practicable after this Registration Statement becomes
effective.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. |_|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
_______________________
CALCULATION OF REGISTRATION FEE
===================================== ============= ===================== =========================== ====================
Title of Each Class of Amount to Proposed Maximum Proposed Maximum Amount of
Securities to Be Registered Be Offering Price Per Aggregate Offering Price Registration Fee
Registered Unit (1) (2)
- ------------------------------------- ------------- --------------------- --------------------------- --------------------
6 3/4% Senior Subordinated
Notes Due 2014............... $390,000,000 100% $390,000,000 $49,413
- ------------------------------------- ------------- --------------------- --------------------------- --------------------
Guarantees of 6 3/4% Senior
Subordinated Notes Due 2014.. (3) (3) (3) (3)
===================================== ============= ===================== =========================== ====================
(1) Estimated solely for the purpose of computing the registration fee in
accordance with Rule 457(f)(2) under the Securities Act of 1933, as amended
(the "Securities Act").
(2) Calculated pursuant to Rule 457(f)(2) under the Securities Act.
(3) Pursuant to Rule 457(n), no registration fee is required with respect to
the Guarantees.
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities
Act or until the registration statement shall become effective on such date as
the Securities and Exchange Commission, acting pursuant to said Section 8(a),
may determine.
Additional Registrants
Exact name of registrant as State or other jurisdiction of Primary Standard Industrial I.R.S. Employer
specified in its charter incorporation or organization Classification Code Number Identification No.
------------------------ ----------------------------- -------------------------- ------------------
Beaver Creek Associates, Inc. Colorado 71392 84-0677537
Beaver Creek Consultants, Inc. Colorado 56151 84-0760348
Beaver Creek Food Services, Inc. Colorado 72231 84-0815288
Breckenridge Resort Properties, Colorado 531311 N/A
Inc.
Complete Telecommunications, Inc. Colorado 7385 84-1533678
Gillett Broadcasting, Inc. Delaware 551112 37-0920781
Grand Teton Lodge Company Wyoming 7211 83-0161154
Heavenly Valley, Limited Nevada 71392 84-0266125
Partnership
Jackson Hole Golf and Tennis Wyoming 7997 N/A
Club, Inc.
JHL&S LLC Wyoming 7211 83-0332983
Keystone Conference Services, Inc. Colorado 72111 84-1075280
Keystone Development Sales, Inc. Colorado 53121 43-1463384
Keystone Food and Beverage Company Colorado 72231 84-0678950
Keystone Resort Property Colorado 531311 84-0705922
Management Company
Lodge Properties, Inc. Colorado 72111 84-0607010
Lodge Realty, Inc. Colorado 53121 13-3051423
Property Management Acquisition Tennessee 531311 62-1634422
Corp., Inc.
Rockresorts Casa Madrona, LLC Delaware 7211 84-1606603
Rockresorts Cheeca, LLC Delaware 7211 84-1606605
Rockresorts Equinox, Inc. Vermont 7211 06-1634157
Rockresorts International, LLC Delaware 7211 84-1606606
Rockresorts, LLC Delaware 7211 75-2829919
Rockresorts LaPosada, LLC Delaware 7211 84-1606604
Rockresorts Rosario, LLC Delaware 7211 84-1606602
Rockresorts Wyoming, LLC Wyoming 7211 86-1076452
Teton Hospitality Services, Inc. Wyoming 7211 83-0332998
The Vail Corporation Colorado 71392 84-0601461
The Village at Breckenridge Tennessee 72111 62-1633660
Acquisition Corp., Inc.
Vail Associates Holdings, Ltd. Colorado 53139 84-1214955
Vail Associates Real Estate, Inc. Colorado 53121 84-1013094
Vail Food Services, Inc. Colorado 72231 84-0596378
Vail Holdings, Inc. Colorado 551112 84-0568230
Vail Resorts Development Company Colorado 23311 84-1242948
Vail Summit Resorts, Inc. Colorado 71392 43-1273996
Vail Trademarks, Inc. Colorado 541199 84-1253320
Vail/Arrowhead, Inc. Colorado 23311 84-1253319
Vail/Beaver Creek Resort Colorado 531311 52-1479879
Properties, Inc.
VAMHC, Inc. Colorado 7211 N/A
Vail RR, Inc. Colorado 7211 84-1606210
VA Rancho Mirage I, Inc. Colorado 7211 84-1606209
VA Rancho Mirage II, Inc. Colorado 7211 84-1606208
VA Rancho Mirage Resort, L.P. Delaware 7211 78-2578150
VR Heavenly I, Inc. Colorado 71392 33-1039478
VR Heavenly II, Inc. Colorado 71392 33-1039481
The information in this prospectus is not complete and may be changed. We may
not consummate the exchange offer until the registration statement filed with
the Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these notes and is not soliciting an offer to acquire these notes
in any state where the offer or sale is not permitted.
PROSPECTUS
SUBJECT TO COMPLETION, DATED MARCH 25, 2004
VAIL RESORTS, INC.
Exchange Offer
for
$390,000,000 Aggregate Principal Amount
of
6 3/4% Senior Subordinated Notes due 2014
________________________________
Terms of Exchange Offer:
o Expires 5:00 p.m., New York City time, on , 2004 unless extended.
o Subject to certain customary conditions which may be waived by us.
o All outstanding 6 3/4% Senior Subordinated Notes due 2014 that are
validly tendered and not withdrawn will be exchanged.
o Tenders of outstanding notes may be withdrawn any time prior to the
expiration of this exchange offer.
o The exchange of the outstanding notes will not be a taxable exchange
for U.S. federal income tax purposes.
o We will not receive any cash proceeds from the exchange offer.
o The terms of the notes to be issued in exchange for the outstanding
notes are substantially identical to the outstanding notes, except for
certain transfer restrictions and registration rights relating to the
outstanding notes.
o Any outstanding notes not validly tendered will remain subject to
existing transfer restrictions.
See "Risk Factors," beginning on page 6, for a discussion of certain
factors that should be considered by holders before tendering their outstanding
notes in the exchange offer.
There has not previously been any public market for the exchange notes that
will be issued in the exchange offer. We do not intend to list the exchange
notes on any national stock exchange or on the Nasdaq National Market. There can
be no assurance that an active market for such exchange notes will develop.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
-------------------------------------------
The date of this prospectus is [ ], 2004.
TABLE OF CONTENTS
Page
Market, Ranking and Other Data..............................................i
Forward-Looking Statements..................................................i
Where You Can Find More Information........................................ii
Documents Incorporated by Reference.......................................iii
Prospectus Summary..........................................................1
The Exchange Offer..........................................................2
Summary of the Exchange Notes...............................................5
Risk Factors................................................................7
Ratio of Earnings to Fixed Charges.........................................19
Use of Proceeds............................................................19
Capitalization.............................................................19
The Exchange Offer.........................................................21
Description of Exchange Notes..............................................30
Description of Certain Indebtedness........................................58
Plan of Distribution.......................................................59
Certain Federal Income Tax Considerations..................................61
Legal Matters..............................................................64
Experts....................................................................64
_________________
The exchange offer is not being made to, nor will we accept surrenders for
exchange from, holders of outstanding notes in any jurisdiction in which the
exchange offer or the acceptance thereof would not be in compliance with the
securities or blue sky laws of such jurisdiction.
Market, Ranking and Other Data
The data included or incorporated by reference in this prospectus regarding
markets and ranking, including the size of certain markets and our position and
the position of our competitors within these markets, are based on reports of
published industry sources and our estimates based on our management's knowledge
and experience in the markets in which we operate. Our estimates have been based
on information obtained primarily from trade and business organizations and
other contacts in the markets in which we operate. We believe these estimates to
be accurate as of the date of this prospectus. However, this information may
prove to be inaccurate because of the method by which we obtained some of the
data for our estimates or because this information cannot always be verified
with complete certainty due to the limits on the availability and reliability of
raw data, the voluntary nature of the data gathering process and other
limitations and uncertainties. As a result, you should be aware that market,
ranking and other similar data included in this prospectus, and estimates and
beliefs based on that data, may not be reliable. We cannot guarantee the
accuracy or completeness of such information contained in this prospectus.
Forward-Looking Statements
The prospectus contains "forward-looking statements" within the meaning of
Section 27A of the Securities Act and Section 21E of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"). All statements other than statements
of historical fact are "forward-looking statements" for purposes of federal and
state securities laws. Forward-looking statements may include the words "may,"
"will," "plans," "estimates," "anticipates," "believes," "expects," "intends"
and similar expressions. Although we believe that such statements are based on
reasonable assumptions, these forward-looking statements are subject to numerous
factors, risks and uncertainties that could cause actual outcomes and results to
be materially different from those projected or assumed in our forward-looking
statements. These factors, risks and uncertainties include, among others, the
following:
o the existing SEC formal investigation of us;
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o economic downturns;
o terrorist acts upon the United States;
o threat of or actual war;
o unfavorable weather conditions;
o our ability to obtain financing on terms acceptable to us to finance
our capital expenditure and growth strategy;
o our ability to develop our resort and real estate operations;
o competition in our Mountain and Lodging businesses;
o our reliance on government permits for our use of federal land;
o our ability to integrate and successfully operate future acquisitions;
o adverse consequences of current or future legal claims; and
o adverse changes in the real estate market.
Our actual results, performance or achievements could differ materially
from those expressed in, or implied by, the forward-looking statements. We can
give no assurances that any of the events anticipated by the forward-looking
statements will occur or, if any of them do, what impact they will have on our
results of operations and financial condition. We do not intend, and we
undertake no obligation, to update any forward-looking statement. We urge you to
review carefully "Risk Factors" in this prospectus for a more complete
discussion of the risks of an investment in the exchange notes.
WHERE YOU CAN FIND MORE INFORMATION
We are required to file annual, quarterly and special reports, proxy
statements, any amendments to those reports and other information with the
Securities and Exchange Commission (the "SEC"). You may read and copy any
documents filed by us with the SEC at the SEC's public reference room at 450
Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for further information on the public reference room. Reports,
proxy statements and information statements, any amendments to those reports and
other information filed electronically by us with the SEC are available to the
public at the SEC's website at http://www.sec.gov.
We have filed a registration statement on Form S-4 with the SEC relating to
the exchange notes covered by this prospectus. This prospectus is a part of the
registration statement and does not contain all of the information in the
registration statement. Whenever a reference is made in this prospectus to a
contract or other document of Vail Resorts, Inc., please be aware that the
reference is only a summary and that you should refer to the exhibits that are a
part of the registration statement for a copy of the contract or other document.
You may review a copy of the registration statement at the SEC's public
reference room in Washington, D.C., as well as through the SEC's website.
-ii-
DOCUMENTS INCORPORATED BY REFERENCE
In this document, we "incorporate by reference" the information that we
file with the SEC, which means that we can disclose important information to you
by referring you to those documents. The information incorporated by reference
is considered to be a part of this prospectus. We incorporate by reference into
this prospectus the documents listed below and any future filings we make with
the SEC under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act including
any filings after the date of this prospectus, until the completion of the
offering of the exchange notes:
o Annual Report on Form 10-K of Vail Resorts, Inc. for the fiscal year
ended July 31, 2003;
o Quarterly Report on Form 10-Q of Vail Resorts, Inc. for the quarterly
period ended October 31, 2003;
o Quarterly Report on Form 10-Q of Vail Resorts, Inc. for the quarterly
period ended January 31, 2004;
o Current Report on Form 8-K of Vail Resorts, Inc. filed February 2,
2004; and
o Proxy Statement for the 2003 Annual Meeting of Shareholders of Vail
Resorts, Inc.
The information in the documents incorporated by reference is considered to
be part of this prospectus, and information in documents that we file later with
the Commission will automatically update and supersede such information.
Any statement contained in a document incorporated or deemed to be
incorporated by reference in this prospectus is modified or superseded for
purposes of this prospectus to the extent that a statement contained in this
prospectus or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded does not, except as so
modified or superseded, constitute a part of this prospectus.
We will provide a copy of the documents we incorporate by reference, at no
cost, to any person who receives this prospectus, including any beneficial owner
of our common stock. To request a copy of any or all of these documents, you
should write or telephone us at the following address and telephone number:
Vail Resorts, Inc.
Post Office Box 7
Vail, Colorado 81658
Telephone: (970) 845-2500
Attention: Investor Relations
http://www.vailresorts.com
To obtain timely delivery, you must make your request no later than [ ],
2004 (five business days prior to the expiration date for the exchange offer).
-iii-
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by, and should be read
in connection with, the more detailed information and consolidated financial
statements (including the notes thereto) incorporated by reference into this
prospectus. The terms "Vail," " the Company," "we," "us" and "our" as used in
this prospectus refer to Vail Resorts, Inc. and its subsidiaries and
predecessors as a combined entity, except where it is clear from the context
that such term means only the parent company. Our fiscal year end is July 31.
Unless otherwise specified, "ski season" shall mean the period from the opening
of any of our mountains for skiing to the closing of our last mountain for
skiing, typically mid-November to mid-April, and "skier visit" shall mean one
guest accessing a ski mountain for all or any part of a day or night and
includes both paid and complimentary tickets and ski passes.
COMPANY OVERVIEW
Vail Resorts, Inc. was organized as a holding company in 1997 and operates
through various subsidiaries. Our operations are grouped into three segments:
Mountain, Lodging and Real Estate. Our Mountain segment owns and operates five
ski resort properties, including:
o Vail Mountain;
o Beaver Creek Resort;
o Breckenridge Mountain;
o Heavenly Valley Ski Resort; and
o Keystone Resort.
Our Lodging segment owns and/or manages a collection of luxury hotels, a
destination resort at Grand Teton National Park, and a series of strategic
lodging properties located in proximity to our mountain operations. Our Real
Estate segment holds, develops, buys and sells real estate in and around our
resort communities.
We are a publicly-traded company with our common stock listed on the New
York Stock Exchange under the symbol "MTN."
_________________
The address of our principal executive office is 137 Benchmark Road, Avon,
Colorado 81620. Our phone number is (970) 845-2500. Our Internet website address
is www.vailresorts.com. Our website and the information contained in it will not
be deemed to be incorporated by reference into this prospectus.
-1-
The Exchange Offer
Registration Rights...................... You are entitled to exchange your
outstanding notes for freely
tradeable exchange notes with
substantially identical terms. The
exchange offer is intended to
satisfy your exchange rights. After
the exchange offer is complete, you
will no longer be entitled to any
exchange or registration rights
with respect to your outstanding
notes. Accordingly, if you do not
exchange your outstanding notes,
you will not be able to reoffer,
resell or otherwise dispose of your
outstanding notes unless you comply
with the registration and
prospectus delivery requirements of
the Securities Act, or there is an
exemption available.
The Exchange Offer....................... We are offering to exchange $1,000
principal amount of our 6 3/4%
Senior Subordinated Notes due 2014,
which have been registered under
the Securities Act, for $1,000
principal amount of our outstanding
6 3/4% Senior Subordinated Notes
due 2014, which were issued in a
private offering on January 29,
2004. As of the date of this
prospectus, there are $390.0
million principal amount at
maturity of outstanding notes. We
will issue exchange notes promptly
after the expiration of the
exchange offer.
Resales.................................. We believe that the exchange notes
issued in the exchange offer may be
offered for resale, resold or
otherwise transferred by you
without compliance with the
registration and prospectus
delivery requirements of the
Securities Act, provided that:
o you are acquiring the exchange
notes in the ordinary course of
your business;
o you are not participating, do not
intend to participate and have no
arrangement or understanding with
any person to participate in a
distribution of the exchange notes;
and
o you are not an "affiliate" of
ours.
If you do not meet the above
criteria you will have to comply
with the registration and
prospectus delivery requirements of
the Securities Act in connection
with any reoffer, resale or other
disposition of your exchange notes.
Each broker or dealer that receives
exchange notes for its own account
in exchange for outstanding notes
that were acquired as a result of
market-making or other trading
activities must acknowledge that it
will deliver this prospectus in
connection with any sale of
exchange notes.
Expiration Date.......................... 5:00 p.m., New York City time, on
[ ], 2004, unless we extend the
expiration date.
Conditions to the Exchange Offer......... The exchange offer is subject to
certain customary conditions, which
may be waived by us. The exchange
offer is not conditioned upon any
minimum principal amount of
outstanding notes
-2-
being tendered.
Procedures for Tendering Outstanding
Notes................................. If you wish to tender outstanding
notes, you must (i) complete, sign
and date the letter of transmittal,
or a facsimile of it, in accordance
with its instructions and transmit
the letter of transmittal, together
with your notes to be exchanged and
any other required documentation,
to The Bank of New York, who is the
exchange agent, at the address set
forth in the letter of transmittal
to arrive by 5:00 p.m., New York
City time, on the expiration date
or (ii) arrange for The Depository
Trust Company ("DTC") to transmit
certain required information,
including an agent's message
forming part of a book-entry
transfer in which you agree to be
bound by the terms of the letter of
transmittal, to the exchange agent
in connection with a book-entry
transfer. See "The Exchange
Offer--Procedures for Tendering
Outstanding Notes." By executing
the letter of transmittal or making
arrangements with DTC as described
above, you will represent to us
that you are acquiring the exchange
notes in the ordinary course of
your business, that you are not
participating, do not intend to
participate and have no arrangement
or understanding with any person to
participate in the distribution of
exchange notes, and that you are
not an "affiliate" of ours. See
"The Exchange Offer--Procedures for
Tendering Outstanding Notes."
Special Procedures for Beneficial Holders If you are the beneficial holder of
outstanding notes that are
registered in the name of your
broker, dealer, commercial bank,
trust company or other nominee, and
you wish to tender in the exchange
offer, you should contact the
person in whose name your
outstanding notes are registered
promptly and instruct such person
to tender on your behalf. See "The
Exchange Offer--Procedures for
Tendering Outstanding Notes."
Guaranteed Delivery Procedures........... If you wish to tender your
outstanding notes and you cannot
deliver such notes, the letter of
transmittal or any other required
documents to the exchange agent
before the expiration date or the
procedures for book-entry transfer
cannot be completed on time, you
may tender your outstanding notes
according to the guaranteed
delivery procedures set forth in
"The Exchange Offer--Guaranteed
Delivery Procedures."
Withdrawal Rights........................ Tenders may be withdrawn at any
time before 5:00 p.m., New York
City time, on the expiration date.
Acceptance of Outstanding Notes and
Delivery of Exchange Notes............ Subject to certain conditions, we
will accept for exchange any and
all outstanding notes which are
properly tendered in the exchange
offer before 5:00 p.m., New York
City time, on the expiration date.
The exchange notes will be
delivered promptly after the
expiration date. See "The Exchange
Offer--Terms of the Exchange
Offer."
Certain Federal Income Tax Considerations The exchange of outstanding notes
for exchange notes will not be
-3-
a taxable event for federal income
tax purposes. You will not
recognize any taxable gain or loss
as a result of exchanging
outstanding notes for exchange
notes, and you will have the same
tax basis and holding period in the
exchange notes as you had in the
outstanding notes immediately
before the exchange. See "Certain
Federal Income Tax Considerations."
Use of Proceeds.......................... We will not receive any proceeds
from the issuance of the exchange
notes.
Exchange Agent........................... The Bank of New York is serving as
exchange agent in connection with
the exchange offer. The address,
telephone number and facsimile
number of the exchange agent are
set forth in "The Exchange
Offer--Exchange Agent."
-4-
Summary of the Exchange Notes
The summary below describes the principal terms of the exchange notes. Some
of the terms and conditions described below are subject to important limitations
and exceptions. The "Description of Exchange Notes" section of this prospectus
contains a more detailed description of the terms and conditions of the exchange
notes.
Issuer..................................... Vail Resorts, Inc.
Securities................................. $390.0 million in principal amount
of senior subordinated notes due
2014.
Maturity................................... February 15, 2014.
Interest................................... Interest will accrue on the
exchange notes at an annual rate of
6 3/4% from the last interest
payment date on which interest was
paid on the outstanding notes
surrendered in exchange therefor or
if no interest has been paid on the
outstanding notes, from January 29,
2004 and will be payable
semi-annually in arrears on
February 15 and August 15 of each
year, beginning on August 15, 2004.
Guarantees................................. Our obligations on the exchange
notes will be fully and
unconditionally guaranteed by
substantially all of our current
and future domestic subsidiaries.
Ranking.................................... The exchange notes will be general
unsecured senior subordinated debt
of Vail Resorts, Inc. Accordingly,
they will rank:
o junior to our existing and future
senior debt;
o pari passu with all of our
existing and future unsecured
senior subordinated debt;
o senior to all of our existing and
future subordinated debt; and
o effectively junior to all
indebtedness of our existing and
future subsidiaries that are not
guarantors of the exchange notes.
The guarantees will be general
unsecured senior subordinated
obligations of the guarantors.
Accordingly, they will rank junior
to all senior debt of the
guarantors, pari passu with all
unsecured senior subordinated debt
of the guarantors and senior to all
future subordinated debt of the
guarantors.
As of January 31, 2004, after
giving pro forma effect to the
discharge of the portion of our
$360 million 8.75% senior
subordinated notes ("8.75% Notes")
not tendered in our recent tender
offer ($11.2 million principal
amount), we had $632.0 million of
debt outstanding, $242.0 million of
which would have been senior debt.
Optional Redemption........................ We may redeem the exchange notes,
in whole or in part, at any time on
or after February 15, 2009, at the
redemption prices described in the
section "Description of Exchange
Notes--Optional
-5-
Redemption," plus accrued and
unpaid interest.
In addition, on or before February
15, 2007, we may redeem up to 35%
of the exchange notes with the net
cash proceeds from certain equity
offerings at the redemption price
listed in "Description of Exchange
Notes--Optional Redemption."
However, we may only make such
redemptions if at least 65% of the
aggregate principal amount of notes
issued under the indenture remains
outstanding immediately after the
occurrence of such redemption.
Prior to February 15, 2009, we may
also redeem the exchange notes, in
whole or in part, upon the
occurrence of a change of control
at a make-whole price as described
under "Description of Exchange
Notes--Optional Redemption."
Change of Control.......................... If we experience certain kinds of
changes of control, we must offer
to purchase the exchange notes at
101% of their face amount, plus
accrued interest.
Certain Covenants.......................... The indenture governing the
exchange notes will, among other
things, limit our ability and the
ability of our restricted
subsidiaries to:
o borrow money or sell preferred
stock;
o create liens;
o pay dividends on or redeem or
repurchase stock;
o make certain types of
investments;
o sell stock in our restricted
subsidiaries;
o create restrictions on the
ability of our restricted
subsidiaries to pay dividends or
make other payments to us;
o enter into transactions with
affiliates;
o issue guarantees of debt; and
o sell assets or merge with other
companies.
These covenants contain important
exceptions, limitations and
qualifications. For more details,
see "Description of Exchange
Notes."
You should refer to "Risk Factors" for an explanation of certain risks of
investing in the exchange notes.
-6-
RISK FACTORS
You should carefully consider the risk factors set forth below as well as
the other information contained in this prospectus before deciding to invest in
the exchange notes offered pursuant to this prospectus. The risks described
below are not the only risks facing us. Additional risks and uncertainties not
currently known to us or that we currently deem to be immaterial may also
materially and adversely affect our business operations. Any of the following
risks could materially adversely affect our business, financial condition or
results of operations. In such case, you may lose all or part of your original
investment.
Risks Related to Our Business
Our business is seasonal.
Our Mountain and Lodging operations are seasonal in nature. In particular,
revenues and profits for all of our Mountain and most of our Lodging operations
are substantially lower, and historically result in losses, from late spring to
late fall. Conversely, Grand Teton Lodge Company ("GTLC") and certain managed
properties' peak operating seasons occur during the summer months while the
winter season generally results in operating losses. However, revenues and
profits generated by GTLC's summer operations and management fees from those
managed properties are not sufficient to fully offset our off-season losses from
our Mountain and other Lodging operations. During the 2003 fiscal year, 76% of
total Resort (Mountain and Lodging combined) revenues were earned during the
second and third fiscal quarters. Quarterly results may also be materially
affected by the timing of snowfall and other unforeseen external factors.
Therefore, the operating results for any three-month period are not necessarily
indicative of the results that may be achieved for any subsequent fiscal quarter
or for a full fiscal year.
We are subject to unfavorable weather conditions.
The ability to attract visitors to ski resorts is influenced by weather
conditions and by the amount and timing of snowfall during the ski season.
Unfavorable weather conditions can adversely affect skier visits, and adversely
affect our revenues and profits. In the past 20 years, our Colorado ski resorts
have averaged between 20 and 30 feet of annual snowfall and our California ski
resort receives average yearly snowfall of between 25 and 35 feet, significantly
in excess of the average for U.S. ski resorts. However, there is no assurance
that our resorts will receive seasonal snowfalls near the historical average in
the future. Also, the early season snow conditions and skier perceptions of
early season snow conditions influence the momentum and success of the overall
season. In addition, a severe and prolonged drought could affect our otherwise
adequate snowmaking water supplies. Unfavorable weather conditions such as
drought, hurricanes, tropical storms and tornadoes can adversely affect our
other resorts and lodging properties as vacationers tend to delay or postpone
vacations if weather conditions differ from those that typically prevail at such
resorts for a given season. There is no way for us to predict future weather
patterns or the impact that weather patterns may have on results of operations
or visitation.
We depend on a seasonal workforce.
Our Mountain and Lodging operations are largely dependent on a seasonal
workforce. We recruit worldwide to fill staffing needs each season and utilize
visas to enable the use of foreign workers. In addition, we manage seasonal
wages and the timing of the hiring process to ensure the appropriate workforce
is in place. While we do not currently foresee the need to increase seasonal
wages to attract employees, we cannot guarantee that such an increase will not
be necessary in the future. In addition, we cannot guarantee that we will be
able to obtain the visas necessary to hire foreign workers who are an important
source for the seasonal workforce. Increased seasonal wages or an inadequate
workforce could have an adverse impact on our results of operations; however, we
are unable to predict with any certainty whether such situations will arise or
the potential impact on results of operations.
We are currently the subject of an SEC investigation.
In October 2002, after voluntary consultation with the SEC staff on the
appropriate accounting for recognizing revenue on initiation fees related to the
sale of memberships in private clubs, we restated and reissued our historical
financial statements for fiscal 1999 through fiscal 2001, primarily to reflect a
revision in the accounting
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treatment for recognizing revenue on initiation fees related to the sale of
memberships in private clubs. In 2002, we engaged our new auditors to do a
re-audit of the fiscal years 1999-2001 and filed an amended Form 10-K for fiscal
2001 reflecting all adjustments made as a result of the re-audit, in addition to
the revision in accounting for the club fees. In February 2003, the SEC informed
us that it had issued a formal order of investigation with respect to us. At
that time, the inquiry related to our previous accounting treatment for the
private club initiation fees.
In October 2003, the SEC issued a subpoena to us to produce documents
related to several matters, including the sale of memberships in private clubs.
In November 2003, the SEC issued an additional subpoena to us to produce
documents related primarily to the additional restatement items that were first
reported in our Form 10-K for the year ended July 31, 2003. We are fully
cooperating with the SEC in its investigation. We are unable to predict the
outcome of the investigation or any action that the SEC might take, including
the imposition of fines and penalties, or other available remedies. Any adverse
development in connection with the investigation, including any expansion of the
scope of the investigation, could have a material adverse effect on us,
including diverting the efforts and attention of our management team from our
business operations.
We are subject to economic downturns.
Skiing, travel and tourism are discretionary recreational activities that
can be impacted by a significant economic slowdown, which, in turn, could impact
our operating results. The recent extended economic downturn has negatively
impacted our operating results although we had historically been relatively
unaffected by economic downturns. There can be no assurance that a continued or
future decrease in the amount of discretionary spending by the public would not
have an adverse effect on us.
Our cost reduction plan might fail to achieve anticipated cost savings and
operational efficiencies.
We implemented a plan for fiscal 2004 to achieve approximately $25 million
in year-over-year cost savings and improved profits. We cannot assure you that
this plan will be successful in achieving the anticipated cost savings,
operational efficiencies or profit improvements. We also cannot assure you that
the cost savings will not cause unanticipated negative impacts to guest
services, which could lead to adverse effects on us.
We face significant competition.
The ski resort and lodging industries are highly competitive. The number of
people who ski in the United States (as measured in skier visits) has generally
ranged between 52 million and 57 million annually over the last decade, with
57.6 million for the 2002/03 ski season. The factors that we believe are
important to customers include:
o proximity to population centers;
o availability and cost of transportation to ski areas;
o ease of travel to ski areas (including direct flights by major
airlines);
o pricing of products and services;
o snowmaking facilities;
o type and quality of skiing offered;
o duration of the ski season;
o weather conditions;
o number, quality and price of related services and lodging; and
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o reputation.
We have many competitors for our ski vacationers, including other major
resorts in Colorado and throughout North America. Our destination guests can
choose from any of these alternatives, as well as non-skiing vacation
destinations around the world. Our Colorado day skier customers can choose from
a number of nearby competitors, including Copper Mountain, Winter Park, Arapahoe
Basin and Loveland ski areas. In addition, other forms of leisure such as
attendance at movies, sporting events and participation in other indoor and
outdoor recreational activities are available to potential guests.
RockResorts International, LLC ("RockResorts") hotels and our other hotels
compete with numerous other hotel companies that may have greater financial
resources than we do. Many of our competitors in both the Mountain and Lodging
segments may be able to adapt more quickly to changes in customer requirements
or devote greater resources to promotion of their offerings than we can. We
believe that developing and maintaining a competitive advantage will require
continued investment by us in our resorts and in our sales and marketing
efforts. We cannot assure you that we will have sufficient resources to make the
necessary investments to do so, and we cannot assure you that we will be able to
compete successfully in this market or against such competitors.
In addition, each of our hotels competes with other hotels in its
geographic area. A number of additional hotel rooms have been or may be built in
the geographic areas in which our hotels are located, which could adversely
affect the results of operations of these hotels. An oversupply of hotel rooms
could adversely affect both occupancy and rates in the markets in which our
hotels are located. A significant increase in the supply of mid-price, upscale,
and upper-upscale hotel rooms and suites, if demand fails to increase
proportionately, could have an adverse effect on our business, financial
condition and results of operations.
We have identified a material weakness and certain significant deficiencies in
our internal controls over financial reporting.
In connection with the issuance of our audited financial statements for
fiscal 2003, we identified issues with our internal financial control structure
and restated our historical financial statements. While we have implemented a
specific action plan to address the internal control weaknesses and to enhance
the reliability and effectiveness of our control procedures, we cannot guarantee
that similar or other internal control weaknesses will not be identified in the
future.
Additionally, we are currently reviewing and testing our material internal
control systems, processes and procedures in compliance with the requirements of
Sarbanes-Oxley Regulation 404. There can be no assurances that such a review
will not result in the identification of significant control deficiencies or
that our auditors will be able to attest to the adequacy of our internal
controls.
Our recent or future acquisitions might not be successful.
In recent years, we have acquired a major ski resort and several other
destination resorts and hotel properties, including Heavenly Ski Resort,
RockResorts and its associated management contracts, The Lodge at Rancho Mirage
and The Vail Marriott Mountain Resort & Spa, as well as developable land in
proximity to such resorts. We cannot assure you that we will be able to continue
to successfully integrate and manage these acquired properties profitably or
increase our profits from these operations. We continually evaluate potential
acquisitions and intend to actively pursue acquisition opportunities, some of
which could be significant. We would face various risks from additional
acquisitions, including:
o inability to integrate acquired businesses into our operations;
o potential goodwill impairment;
o diversion of our management's attention;
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o potential increased debt leverage; and
o unanticipated problems or liabilities.
Similar problems from future acquisitions could adversely affect our
operations and financial performance. In addition, we run the risk that our new
acquisitions may fail to perform in accordance with our expectations, and that
our estimates of the costs of improvements for such properties may prove
inaccurate. We cannot assure you that we will be able to mitigate exposure to
these markets in the future.
Our future development plans might not be successful.
We have significant development plans for our operations. We could
experience significant difficulties initiating or completing these projects,
including:
o delays in completion;
o market or economic downturns impacting our ability to achieve required
revenues from sales;
o inaccurate cost estimates;
o difficulty in finding partners to assist with financing;
o difficulty in receiving the necessary regulatory approvals; and
o difficulty in obtaining qualified subcontractors.
Additionally, we may not benefit from the projects as we expected. Further,
we may not be able to fund these projects with cash flow from operations and
borrowings under our credit facility or third-party non-recourse financing if we
face these difficulties.
In addition, we may decide to alter or abandon a development plan that is
currently underway or under consideration. Consequently, you should not place
undue reliance upon any particular development plan as such plan may not be
consummated, or may not be consummated in the manner described in this
prospectus.
Terrorist acts upon the United States and acts of war (actual or threatened)
could have a material adverse effect on us.
The terrorist acts carried out against the United States on September 11,
2001 have had an adverse effect on the global travel and leisure industry. The
war with Iraq and its aftermath also had a materially adverse effect on us. We
cannot guarantee if or when normal travel and vacation patterns will resume.
Additional terrorist acts against the United States and the threat of or the
actual act of war by or upon the United States could result in further
degradation of discretionary travel, upon which our operations are highly
dependent. Such degradation could have a material adverse impact on our results
of operations.
Unforeseen global events could adversely impact us.
The SARS epidemic in the spring of 2003 adversely impacted the
international travel industry and, consequently, adversely impacted our
business. Other such events of a global nature could also adversely impact
discretionary travel, upon which our operations are highly dependent, which
could have a material adverse impact on our results of operations.
-10-
We rely on government permits.
Virtually all of our ski trails and related activities at Vail,
Breckenridge, Keystone and Heavenly and a substantial portion on Beaver Creek
are located on federal land. The United States Forest Service (the "Forest
Service") has granted us permits to use these lands, but maintains the right to
review and approve many operational matters, as well as the location, design and
construction of improvements in these areas. Currently, our permits expire
October 31, 2031 for Vail, December 31, 2029 for Breckenridge, December 31, 2032
for Keystone, May 1, 2042 for Heavenly and December 31, 2038 for Beaver Creek.
The Forest Service can terminate most of these permits if, in its opinion, such
revocation is required in the public interest. A termination of any of our
permits would adversely affect our business and operations.
We have applied for several new permits or other approvals for improvements
and new development. These efforts, if not successful, could impact our
expansion efforts as currently contemplated. Furthermore, Congress may increase
the fees we pay to the Forest Service for use of these federal lands.
GTLC operates three resort properties within Grand Teton National Park
under a concession contract with the National Park Service that expired on
December 31, 2002. This contract was extended for two years through December 31,
2004, or until such time a new contract is awarded, whichever occurs first. The
new contract for this concession is subject to a competitive bidding process
under the rules promulgated to implement the concession provisions of the
National Park Omnibus Management Act of 1998. The bidding and renewal process is
expected to occur in early to mid-2004. We cannot predict or guarantee the
prospects for success in being awarded a new contract, although we believe GTLC
is well-positioned to obtain a new concession contract on satisfactory terms. In
the event GTLC is not the successful bidder for the new concession contract,
under the existing contract, GTLC is required to sell to the new concessionaire
its "possessory interest" in improvements and its other property used in
connection with the concession operations. GTLC would then be entitled to be
compensated by the successful bidder for the value of its "possessory interest"
in the assets, although the matter may be subject to arbitration if the value is
disputed. Under an amendment to the contract, in the summer of 2003, GTLC and
the National Park Service agreed upon the value to be contained in the
prospectus soliciting bids for the contract.
We are subject to litigation in the ordinary course of business.
We are, from time to time, subject to various legal proceedings and claims,
either asserted or unasserted. Any such claims, whether with or without merit,
could be time-consuming and expensive to defend and could divert management's
attention and resources. While management believes we have adequate insurance
coverage and accrued loss contingencies for all known matters, we cannot assure
that the outcome of all current or future litigation will not have a material
adverse effect on us. For a more detailed discussion of our legal proceedings
see Note 12 to "Consolidated Condensed Financial Statements" included in our
Quarterly Report on Form 10-Q for the fiscal quarter ended January 31, 2004.
We are subject to extensive environmental laws and regulations in the ordinary
course of business.
Our operations are subject to a variety of federal, state and local
environmental laws and regulations including those relating to emissions to the
air, discharges to water, storage, treatment and disposal of wastes, land use,
remediation of contaminated sites and protection of natural resources such as
wetlands. For example, future expansions of certain of our ski facilities must
comply with applicable forest plans approved under the National Forest
Management Act or local zoning requirements. Our facilities are subject to risks
associated with mold and other indoor building contaminants. From time to time,
our operations are subject to inspections by environmental regulators or other
regulatory agencies. We are also subject to worker health and safety
requirements. We believe our operations are in substantial compliance with
applicable environmental, health and safety requirements. However, our efforts
to comply do not remove the risk that we may be held liable, incur fines or be
subject to claims for damages, and that the amount of any liability, fines,
damages or remediation costs may be material for, among other things, the
presence or release of regulated materials at, on or emanating from properties
we now or formerly owned or operated, newly discovered environmental impacts or
contamination at or from any of our properties, or changes in environmental laws
and regulations or their enforcement. For a more detailed discussion of our mold
remediation
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efforts see Note 13 to "Consolidated Condensed Financial Statements" included in
our Quarterly Report on Form 10-Q for the fiscal quarter ended January 31, 2004.
Implementation of existing and future legislation, rulings, standards and
interpretations from the FASB or other regulatory bodies could affect the
presentation of our financial statements and related disclosures.
The FASB has recently issued FIN No. 46, FIN No. 46R and SFAS No. 150,
which we are currently in the process of implementing. The implementation of
these accounting pronouncements could affect the way we account for our
involvement with variable interest entities and could also affect the
presentation of liabilities and equity on our balance sheet, including
potentially recording certain off-balance sheet liabilities on our balance
sheet. These and other future regulatory requirements could significantly change
our current accounting practices and disclosures. Such changes in the
presentation of our financial statements and related disclosures could change
your interpretation or perception of our financial position and results of
operations. For a more detailed discussion on the possible treatment of our
variable interest entities see "Off Balance Sheet Arrangements" and "New
Accounting Pronouncements" under "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and Note 8 to "Consolidated
Condensed Financial Statements" included in our Quarterly Report on Form 10-Q
for the fiscal quarter ended January 31, 2004.
We are subject to the risks of brand concentration.
We are subject to the potential risks associated with concentration of our
hotels under the RockResorts brand. A negative public image or other adverse
event which becomes associated with the RockResorts brand could adversely affect
hotels operated under that brand. Should the RockResorts brand suffer a
significant decline in popularity with the traveling public, it could adversely
affect our revenues and profitability.
Our future growth and real estate development requires additional capital whose
availability is not assured.
We intend to make significant investments in our resorts to maintain our
competitive position. We spent approximately $106.3 million, $76.2 million and
$57.8 million in the fiscal years ended July 31, 2003, 2002 and 2001,
respectively, on capital expenditures and we have made investments of
approximately $22.6 million, $68.7 million and $39.2 million in fiscal years
2003, 2002 and 2001, respectively, in our real estate developments, and we
expect to continue making substantial resort capital expenditures and
investments in real estate development. We estimate that we will make aggregate
capital expenditures and investments in real estate of approximately $50 million
to $70 million during the remainder of fiscal 2004, and approximately $130
million to $140 million for calendar 2004. We could finance future expenditures
from any of the following sources:
o cash flow from operations;
o bank borrowings;
o public offerings of debt or equity;
o private placements of debt or equity;
o non-recourse, sale leaseback or other financing; or
o some combination of the above.
We might not be able to obtain financing for future expenditures on
favorable terms or at all.
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Future changes in the real estate market could affect the value of our
investments.
We have extensive real estate holdings near our mountain resorts and in
Wyoming. We plan to make significant additional investments in developing
property at all of our resorts. The value of our real property and the revenue
from related development activities may be adversely affected by a number of
factors, including:
o national and local economic climate;
o local real estate conditions (such as an oversupply of space or a
reduction in demand for real estate in an area);
o attractiveness of the properties to prospective purchasers and
tenants;
o competition from other available property or space;
o our ability to obtain adequate insurance;
o unexpected construction costs or delays;
o government regulations and changes in real estate, zoning or tax laws;
o interest rate levels and the availability of financing; and
o potential liabilities under environmental and other laws.
If we do not retain our key personnel, our business may suffer.
The success of our business is heavily dependent on the leadership of our
key management personnel. If any of these persons were to leave our company, it
would be difficult to replace them, and our business could be harmed. We do not
have "key-man" life insurance.
Apollo Ski Partners has influence over us.
Apollo Ski Partners owns approximately 99.9% of our outstanding shares of
Class A Common Stock, giving them approximately 21.1% of the combined voting
power with respect to all matters submitted for a vote of all stockholders.
Pursuant to our bylaws, the holders of Class A Common Stock have the right to
elect a class of directors that constitutes up to two-thirds of our board of
directors. Accordingly, Apollo Ski Partners and, indirectly, Apollo Advisors,
L.P. (which indirectly controls Apollo Ski Partners) have the ability to elect
two-thirds of our board of directors and control the approval of matters
requiring approval by the board of directors, including mergers, liquidations
and asset acquisitions and dispositions. However, in order to assist us in
complying with new NYSE rules which require listed companies to have a board of
directors composed of a majority of "independent" directors, Apollo Ski Partners
has agreed that the directors that they are entitled to elect may include as
many independent directors as necessary so that we can comply with this new
rule. However, notwithstanding the above, Apollo Ski Partners will still have
several designees on the board of directors and will be able to influence the
board of directors. In addition, Apollo Ski Partners and Apollo Advisors, L.P.
may be able to significantly influence decisions on matters submitted for
stockholder consideration. The Lead Director on our board of directors is
associated with Apollo Ski Partners. Apollo Ski Partners may freely sell up to
1,500,000 shares of common stock pursuant to an effective registration statement
filed with the Securities and Exchange Commission. After giving pro forma effect
to the sale of these shares as of March 1, 2004, Apollo Ski Partners would own
99.9% of our outstanding Class A common stock, with approximately 16.8% of the
combined voting power with respect to all matters submitted for a vote of
stockholders.
Risks Related to the Exchange Notes
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Our substantial indebtedness could adversely affect our financial health and
prevent us from fulfilling our obligations under the exchange notes.
We have now and, after the offering, will continue to have a significant
amount of indebtedness. On January 31, 2004, after giving pro forma effect to
the discharge of the portion of our 8.75% senior subordinated notes not tendered
in the tender offer (see Note 5 to "Consolidated Condensed Financial Statements"
included in our Quarterly Report on Form 10-Q for the fiscal quarter ended
January 31, 2004), we would have had total indebtedness of $632.0 million (of
which $390 million would have consisted of the 6.75% senior subordinated notes
and the balance would have consisted of senior debt).
Our substantial indebtedness could have important consequences to you. For
example, it could:
o make it more difficult for us to satisfy our obligations with respect
to the exchange notes;
o increase our vulnerability to general adverse economic and industry
conditions;
o require us to dedicate a substantial portion of our cash flow from
operations to payments on our indebtedness, thereby reducing the
availability of our cash flow to fund working capital, capital
expenditures, research and development efforts and other general
corporate purposes;
o limit our flexibility in planning for, or reacting to, changes in our
business and the industry in which we operate;
o place us at a competitive disadvantage compared to our competitors
that have less debt; and
o limit our ability to borrow additional funds.
In addition, both the indenture governing the exchange notes and our Credit
Facility contain financial and other restrictive covenants that limit our
ability to engage in activities that may be in our long-term best interests. Our
failure to comply with those covenants could result in an event of default
which, if not cured or waived, could result in the acceleration of all of our
debts. Despite current indebtedness levels, we and our subsidiaries may still be
able to incur substantially more debt. This could further exacerbate the risks
associated with our substantial leverage.
We and our subsidiaries may be able to incur substantial additional
indebtedness in the future. The terms of the indenture do not fully prohibit us
or our subsidiaries from doing so. Our Credit Facility would permit additional
borrowings of up to $65.1 million (as of January 31, 2004) after completion of
the offering and all of those borrowings would rank senior to the exchange notes
and the subsidiary guarantees. If new debt is added to our and our subsidiaries'
current debt levels, the related risks that we and they now face could
intensify. See "Description of Certain Indebtedness--Credit Facility."
There are restrictions imposed by the terms of our indebtedness.
The operating and financial restrictions and covenants in our credit
facility and the indenture governing the exchange notes may adversely affect our
ability to finance future operations or capital needs or to engage in other
business activities. In addition, there can be no assurance that we will meet
the financial covenants contained in our credit facility. If we breach any of
these restrictions or covenants, or suffer a material adverse change which
restricts our borrowing ability under our credit facility, we would be unable to
borrow funds thereunder without a waiver, which inability could have an adverse
effect on our business, financial condition and results of operations. A breach
could cause a default under the exchange notes and our other debt. Our
indebtedness may then become immediately due and payable. We may not have or be
able to obtain sufficient funds to make these accelerated payments, including
payments on the exchange notes.
In addition, the indenture governing the exchange notes restricts, among
other things, our ability to:
o borrow money or sell preferred stock;
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o create liens;
o pay dividends on or redeem or repurchase stock;
o make certain types of investments;
o sell stock in our restricted subsidiaries;
o restrict dividends or other payments from subsidiaries;
o enter into transactions with affiliates;
o issue guarantees of debt; and
o sell assets or merge with other companies.
If we fail to comply with these covenants, we would be in default under the
indenture governing the exchange notes, and the principal and accrued interest
on the exchange notes would become due and payable. See "Description of Exchange
Notes--Certain Covenants."
To service our indebtedness, we will require a significant amount of cash,
generation of which depends on many factors beyond our control.
Our ability to make payments on and to refinance our indebtedness,
including the exchange notes, and to fund planned capital expenditures and
development efforts will depend on our ability to generate cash in the future.
This, to a certain extent, is subject to general economic, financial,
competitive, legislative, regulatory and other factors that are beyond our
control.
Based on our current level of operations, we believe our cash flow from
operations, available cash and available borrowings under our Credit Facility
will be adequate to meet our future liquidity needs for at least the next twelve
months.
We cannot assure you, however, that our business will generate sufficient
cash flow from operations, that currently anticipated cost savings and operating
improvements will be realized on schedule or that future borrowings will be
available to us under our Credit Facility in an amount sufficient to enable us
to pay our indebtedness, including the exchange notes, or to fund our other
liquidity needs. We may need to refinance all or a portion of our indebtedness,
including the exchange notes, on or before maturity. We cannot assure you that
we will be able to refinance any of our indebtedness, including our Credit
Facility and the exchange notes, on commercially reasonable terms or at all.
Your right to receive payments on the exchange notes is junior to our existing
indebtedness and possibly all of our future borrowings. Further, the guarantees
of the exchange notes are junior to all of our guarantors' existing indebtedness
and possibly to all their future borrowings.
The exchange notes and the subsidiary guarantees rank behind all of our and
the subsidiary guarantors' existing indebtedness (other than trade payables) and
all of our and their future borrowings (other than trade payables), except any
future indebtedness that expressly provides that it ranks equal with, or
subordinated in right of payment to, the exchange notes and the guarantees. As a
result, upon any distribution to our creditors or the creditors of the
guarantors in a bankruptcy, liquidation or reorganization or similar proceeding
relating to us or the guarantors or our or their property, the holders of our
senior debt and debt of the guarantors will be entitled to be paid in full and
in cash before any payment may be made with respect to the exchange notes or the
subsidiary guarantees.
-15-
In addition, all payments on the exchange notes and the guarantees will be
blocked in the event of a payment default on senior debt and may be blocked for
up to 179 of 360 consecutive days in the event of certain non-payment defaults
on senior debt.
In the event of a bankruptcy, liquidation or reorganization or similar
proceeding relating to us or the guarantors, holders of the exchange notes will
participate with trade creditors and all other holders of our and the
guarantors' subordinated indebtedness in the assets remaining after we and the
subsidiary guarantors have paid all of our senior debt. However, because the
indenture requires that amounts otherwise payable to holders of the exchange
notes in a bankruptcy or similar proceeding be paid to holders of senior debt
instead, holders of the exchange notes may receive less, ratably, than holders
of trade payables in any such proceeding. In any of these cases, we and the
subsidiary guarantors may not have sufficient funds to pay all of our creditors
and holders of notes may receive less, ratably, than the holders of our senior
debt.
As of January 31, 2004, the notes and the subsidiary guarantees were
subordinated to $242.0 million of senior debt and approximately $65.1 million
was available for borrowing as additional senior debt under our Credit Facility.
We are permitted to borrow substantial additional indebtedness, including senior
debt, in the future under the terms of the indenture.
We may not have access to the cash flow and other assets of our subsidiaries
that may be needed to make payment on the exchange notes.
Although much of our business is conducted through our subsidiaries, none
of our subsidiaries is obligated to make funds available to us for payment on
the exchange notes. Accordingly, our ability to make payments on the exchange
notes is dependent on the earnings and the distribution of funds from our
subsidiaries. The terms of the Credit Facility restrict our subsidiaries from
paying dividends and otherwise transferring assets to us. Furthermore, our
subsidiaries are permitted under the terms of the indenture to incur additional
indebtedness that may severely restrict or prohibit the making of distributions,
the payment of dividends or the making of loans by such subsidiaries to us. We
cannot assure you that the agreements governing the current and future
indebtedness of our subsidiaries will permit our subsidiaries to provide us with
sufficient dividends, distributions or loans to fund payments on the exchange
notes when due. See "Description of Certain Indebtedness."
Your right to receive payments on the exchange notes could be adversely affected
if any of our non-guarantor subsidiaries declare bankruptcy, liquidate or
reorganize.
Some of our subsidiaries will not guarantee the exchange notes. In the
event of a bankruptcy, liquidation or reorganization of any of our non-guarantor
subsidiaries, holders of their indebtedness and their trade creditors will
generally be entitled to payment of their claims from the assets of those
subsidiaries before any assets are made available for distribution to us.
As of January 31, 2004, the notes were junior to $111.9 million of
indebtedness and other liabilities (including trade payables) of our
non-guarantor subsidiaries. Our non-guarantor subsidiaries held 9.8% of our
consolidated assets as of January 31, 2004. For a more detailed discussion of
our non-guarantor subsidiaries see Note 16 to "Consolidated Condensed Financial
Statements" included in our Quarterly Report on Form 10-Q for the fiscal quarter
ended January 31, 2004.
We may not have the ability to raise the funds necessary to finance the change
of control offer required by the indenture.
Upon the occurrence of certain kinds of change of control events, we will
be required to offer to repurchase all outstanding notes at 101% of the
principal amount thereof plus accrued and unpaid interest and liquidated
damages, if any, to the date of repurchase. However, it is possible that we will
not have sufficient funds at the time of the change of control to make the
required repurchase of notes or that restrictions in our Credit Facility will
not allow such repurchases. In addition, certain important corporate events,
such as leveraged recapitalizations that would increase the level of our
indebtedness, would not constitute a "Change of Control" under the indenture.
See "Description of Exchange Notes--Repurchase at the Option of Holders."
-16-
Federal and state statutes allow courts, under specific circumstances, to void
guarantees and require note holders to return payments received from guarantors.
Under federal bankruptcy laws and comparable provisions of state fraudulent
transfer laws, a guarantee could be voided, or claims in respect of a guarantee
could be subordinated to all other debts of that guarantor if, among other
things, the guarantor, at the time it incurred the indebtedness evidenced by its
guarantee:
o received less than reasonably equivalent value or fair consideration
for the incurrence of such guarantee; and
o was insolvent or rendered insolvent by reason of such incurrence; or
o was engaged in a business or transaction for which the guarantor's
remaining assets constituted unreasonably small capital; or
o intended to incur, or believed that it would incur, debts beyond its
ability to pay such debts as they mature.
In addition, any payment by that guarantor pursuant to its guarantee could
be voided and required to be returned to the guarantor, or to a fund for the
benefit of the creditors of the guarantor.
The measures of insolvency for purposes of these fraudulent transfer laws
will vary depending upon the law applied in any proceeding to determine whether
a fraudulent transfer has occurred. Generally, however, a guarantor would be
considered insolvent if:
o the sum of its debts, including contingent liabilities, was greater
than the fair saleable value of all of its assets; or
o the present fair saleable value of its assets was less than the amount
that would be required to pay its probable liability on its existing
debts, including contingent liabilities, as they become absolute and
mature; or
o it could not pay its debts as they become due.
On the basis of historical financial information, recent operating history
and other factors, we believe that each guarantor, after giving effect to its
guarantee of the exchange notes, will not be insolvent, will not have
unreasonably small capital for the business in which it is engaged and will not
have incurred debts beyond its ability to pay such debts as they mature. We
cannot assure you, however, as to what standard a court would apply in making
these determinations or that a court would agree with our conclusions in this
regard.
The exchange notes will be new securities for which there is currently no public
market.
We do not intend to list the exchange notes on any national securities
exchange or quotation system. The initial purchasers in the offering of
outstanding notes have advised us that they currently intend to make a market in
the exchange notes, but they are not obligated to do so and, if commenced, may
discontinue such market making at any time. Accordingly, no market may develop
for the exchange notes, and if a market does develop, it may have limited or no
liquidity.
Failure to exchange your outstanding notes will leave them subject to transfer
restrictions.
If you do not exchange your outstanding notes for exchange notes, you will
continue to be subject to the restrictions on transfer of your outstanding notes
set forth in their legend because the outstanding notes were issued pursuant to
an exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act. In general, outstanding notes may not be
offered or sold, unless registered under the Securities Act, except pursuant
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to an exemption from, or in a transaction not subject to, the Securities Act and
applicable state securities laws. We currently do not anticipate registering the
outstanding notes under the Securities Act. As outstanding notes are tendered
and accepted in the exchange offer, the aggregate principal amount of
outstanding notes will decrease, which will decrease their liquidity.
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RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our consolidated ratio of earnings to fixed
charges for each of the periods indicated.
For purposes of calculating the ratio of earnings to fixed charges,
earnings consist of pretax income from continuing operations before adjustment
for (a) minority interest in consolidated subsidiaries and equity method
earnings or losses, (b) fixed charges, (c) amortization of interest capitalized,
(d) distributed income from equity method investees and (e) minority interest in
pre-tax income of subsidiaries that have not incurred fixed charges. From the
total of these items interest capitalized is deducted. Fixed charges include:
(i) interest expense; (ii) loss on extinguishment of debt; (iii) interest
capitalized; (iv) amortization of debt issuance cost and (v) an estimate of the
interest component of rent expense. As of the date of this prospectus, we have
no preferred stock outstanding. The ratio of earnings to fixed charges and
preferred stock dividends is the same as the ratio of earnings to fixed charges
in all periods as we have not had any preferred stock outstanding (all amounts
in thousands of dollars, except ratios). In the calculation of the pro-forma
ratio of earnings to fixed charges, we have removed the interest expense,
amortization of deferred finance charges and amortization of issuance discount
associated with the 8.75% Notes and have added back the interest expense and
amortization of deferred finance charges associated with the 6.75% Notes. In
addition, we have removed the loss on extinguishment of debt charge.
Year Ended July 31, Six Months Ended January 31,
1999 2000 2001 2002 2003 Pro-Forma 2003 2004 Pro-Forma 2004
2003
Ratio of Earnings to 1.29 1.43 1.63 1.32 -- -- -- -- 1.43
Fixed Charges
Deficiency of Earnings -- -- -- -- $9,590 $2,961 $15,448 $28,069 --
to Fixed Charges
USE OF PROCEEDS
The exchange offer is intended to satisfy certain of our obligations under
the registration rights agreement. We will not receive any cash proceeds from
the exchange offer.
The net proceeds from the original sale of the outstanding notes were
$383.2 million. We used the net proceeds from the sale of the outstanding notes
to purchase the portion of our outstanding 8.75% Senior Subordinated Notes due
2009 (the "8.75% Notes") tendered in our recent tender offer and to pay related
premiums, fees and expenses.
CAPITALIZATION
The following table sets forth our cash and cash equivalents and
capitalization as of January 31, 2004 on an actual basis, and as adjusted to
reflect the discharge of all our 8.75% Notes not tendered in the tender offer.
As of January 31, 2004
As
Actual Adjusted (1)
($ in millions)
Cash and cash equivalents $ 42.6 $ 30.8
Revolving credit facility due 2007 - -
Term loan due 2010 99.3 99.3
Other senior debt 142.7 142.7
Total senior debt $ 242.0 $ 242.0
8.75% senior subordinated notes due 2009(1) 11.2 --
Discount on 8.75% senior subordinated notes due 2009 (0.2) --
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6.75% senior subordinated notes due 2014 390.0 390.0
Total debt including current maturities $ 643.0 $ 632.0
Minority interest 30.9 30.9
Shareholders' equity 464.5 463.9(2)
Total capitalization $ 1,138.4 $ 1,126.8
(1) Assumes that all of the 8.75% Notes not tendered in the tender offer were
called at 104.375% of their principal amount. We will call the 8.75% Notes
remaining outstanding in May.
(2) The $564,000 adjustment to shareholders' equity consists of an estimated
$904,000 total charge, tax effected at 37.6%. The $904,000 estimated charge
represents a $492,000 call premium and $232,000 and $180,000 in unamortized
financing fees and unamortized original issue discount, respectively,
relating to the 8.75% Notes not tendered in the tender offer.
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THE EXCHANGE OFFER
Purpose and Effect of the Exchange Offer
Exchange Offer Registration Statement. We issued the outstanding notes on
January 29, 2004. The initial purchasers have advised us that they subsequently
resold the outstanding notes to "qualified institutional buyers" in reliance on
Rule 144A under the Securities Act and to certain persons in offshore
transactions in reliance on Regulation S under the Securities Act. As a
condition to the offering of the outstanding notes, we entered into a
registration rights agreement dated January 29, 2004, pursuant to which we
agreed, for the benefit of all holders of the outstanding notes, at our own
expense, to do the following:
(1) to file the registration statement of which this prospectus is a
part with the Commission on or prior to 60 days after the closing date of
the outstanding notes;
(2) to use our commercially reasonable best efforts to cause the
registration statement to be declared effective under the Securities Act on
or prior to 270 days after the closing date of the outstanding notes;
(3) to use our best efforts to keep the registration statement
effective until the closing of the exchange offer; and
(4) to use our commercially reasonable best efforts to issue, on or
prior to 60 days after the date on which the exchange offer registration
statement is declared effective by the Commission, exchange notes in
exchange for all outstanding notes tendered prior thereto.
Further, we agreed to keep the exchange offer open for acceptance for not
less than the minimum period required under applicable Federal and state
securities laws. For each outstanding note validly tendered pursuant to the
exchange offer and not withdrawn, the holder of the outstanding note will
receive an exchange note having a principal amount equal to that of the tendered
outstanding note. Interest on each exchange note will accrue from the last date
on which interest was paid on the tendered outstanding note in exchange therefor
or, if no interest was paid on such outstanding note, from the issue date.
The following is a summary of the registration rights agreement. It does
not purport to be complete and it does not contain all of the information you
might find useful. For further information you should read the registration
rights agreement, a copy of which has been filed as an exhibit to the
registration statement. The exchange offer is intended to satisfy certain of our
obligations under the registration rights agreement.
Transferability. We issued the outstanding notes on January 29, 2004 in a
transaction exempt from the registration requirements of the Securities Act and
applicable state securities laws. Accordingly, the outstanding notes may not be
offered or sold in the United States unless registered or pursuant to an
applicable exemption under the Securities Act and applicable state securities
laws. Based on no-action letters issued by the staff of the Commission with
respect to similar transactions, we believe that the exchange notes issued
pursuant to the exchange offer in exchange for outstanding notes may be offered
for resale, resold and otherwise transferred by holders of notes who are not our
affiliates without further compliance with the registration and prospectus
delivery requirements of the Securities Act, provided that:
(1) any exchange notes to be received by the holder were acquired in
the ordinary course of the holder's business;
(2) at the time of the commencement of the exchange offer the holder
has no arrangement or understanding with any person to participate in the
distribution (within the meaning of the Securities Act) of the exchange
notes; and
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(3) the holder is not an "affiliate" of the Company, as defined in
Rule 405 under the Securities Act, or, if it is an affiliate, that it will
comply with the registration and prospectus delivery requirements of the
Securities Act to the extent applicable.
However, we have not sought a no-action letter with respect to the exchange
offer and we cannot assure you that the staff of the Commission would make a
similar determination with respect to the exchange offer. Any holder who tenders
his outstanding notes in the exchange offer with any intention of participating
in a distribution of exchange notes (1) cannot rely on the interpretation by the
staff of the Commission, (2) will not be able to validly tender outstanding
notes in the exchange offer and (3) must comply with the registration and
prospectus delivery requirements of the Securities Act in connection with any
secondary resale transactions.
In addition, each broker-dealer that receives exchange notes for its own
account pursuant to the exchange offer must acknowledge that it will deliver a
prospectus in connection with any resale of such exchange notes. The letter of
transmittal accompanying this prospectus states that by so acknowledging and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it is
acting in the capacity of an "underwriter" within the meaning of Section 2(11)
of the Securities Act. This prospectus, as it may be amended or supplemented
from time to time, may be used by a broker-dealer in connection with resales of
exchange notes received in exchange for outstanding notes where the outstanding
notes were acquired by such broker-dealer as a result of market-making
activities or other trading activities. Pursuant to the registration rights
agreement, we agreed to make this prospectus available to any such broker-dealer
for use in connection with any such resale.
Shelf Registration Statement. We will, at our cost, (a) file with the
Commission a shelf registration statement covering resales of the outstanding
notes as soon as practicable, but, in any event, on or prior to the 60th day
after the date we become obligated to file the shelf registration statement, (b)
use our commercially reasonable best efforts to cause the shelf registration
statement to be declared effective under the Securities Act on or prior to the
270th day after the date we become obligated to file the shelf registration
statement and (c) use our commercially reasonable best efforts to keep the shelf
registration statement continually effective, supplemented and amended to the
extent necessary to ensure that it is available for resales of notes by the
holders of transfer restricted securities for a period of at least two years
following the effective date of such shelf registration statement (or shorter
period that will terminate when all the exchange notes covered by such shelf
registration statement have been sold pursuant to such shelf registration
statement or are otherwise no longer transfer restricted securities), if:
(1) we are not required to file the exchange offer registration
statement or not permitted to consummate the exchange offer because the
exchange offer is not permitted by applicable law or Commission policy or
(2) any initial purchaser that is a holder of transfer restricted
securities notifies us prior to the 20th day following consummation of the
exchange offer that (a) it is prohibited by law or Commission policy from
participating in the exchange offer or (b) it may not resell the exchange
notes acquired by it in the exchange offer to the public without delivering
a prospectus and the prospectus contained in the exchange offer
registration statement is not appropriate or available for such resales.
We will, in the event of the filing of the shelf registration statement,
provide to each holder of the outstanding notes copies of the prospectus which
is a part of the shelf registration statement, notify each such holder when the
shelf registration statement for the outstanding notes has become effective and
take certain other action as is required to permit unrestricted resales of the
outstanding notes. A holder of outstanding notes who sells such outstanding
notes pursuant to the shelf registration statement generally will (1) be
required to be named as a selling security holder in the related prospectus, (2)
be required to deliver the prospectus to purchasers, (3) be subject to certain
of the civil liability provisions under the Securities Act in connection with
such sales and (4) be bound by the provisions of the registration rights
agreement which are applicable to the holder (including certain indemnification
obligations). In addition, each holder of the outstanding notes will be required
to deliver information to be used in connection with the shelf registration
statement and to provide comments on the shelf registration statement within the
time periods set forth in the registration rights agreement in order to have
their outstanding notes included in the shelf registration statement and to
benefit from the provisions regarding the increase in interest rate.
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Terms of the Exchange Offer
Upon satisfaction or waiver of all the conditions of the exchange offer, we
will accept any and all outstanding notes properly tendered and not withdrawn
prior to the expiration date and will issue the exchange notes promptly after
acceptance of the outstanding notes. See "--Conditions to the Exchange Offer"
and "--Procedures for Tendering Outstanding Notes." We will issue $1,000
principal amount of exchange notes in exchange for each $1,000 principal amount
of outstanding notes accepted in the exchange offer. As of the date of this
prospectus, $390,000,000 aggregate principal amount of the notes are
outstanding. Holders may tender some or all of their outstanding notes pursuant
to the exchange offer. However, outstanding notes may be tendered only in
integral multiples of $1,000.
The exchange notes are identical to the outstanding notes except for the
elimination of certain transfer restrictions, registration rights, restrictions
on holding notes in certificated form and liquidated damages provisions. The
exchange notes will evidence the same debt as the outstanding notes and will be
issued pursuant to, and entitled to the benefits of, the indenture pursuant to
which the outstanding notes were issued and will be deemed one issue of notes,
together with the outstanding notes.
This prospectus, together with the letter of transmittal, is being sent to
all registered holders and to others believed to have beneficial interests in
the outstanding notes. Holders of outstanding notes do not have any appraisal or
dissenters' rights under the indenture in connection with the exchange offer. We
intend to conduct the exchange offer in accordance with the applicable
requirements of the Securities Act, the Exchange Act and the rules and
regulations of the Commission promulgated thereunder.
For purposes of the exchange offer, we will be deemed to have accepted
validly tendered outstanding notes when, and as if, we have given oral or
written notice thereof to the exchange agent. The exchange agent will act as our
agent for the purpose of distributing the exchange notes from us to the
tendering holders. If we do not accept any tendered outstanding notes because of
an invalid tender, the occurrence of certain other events set forth in this
prospectus or otherwise, we will return the unaccepted outstanding notes,
without expense, to the tendering holder thereof as promptly as practicable
after the expiration date.
Holders who tender outstanding notes in the exchange offer will not be
required to pay brokerage commissions or fees or, except as set forth below
under "--Transfer Taxes," transfer taxes with respect to the exchange of
outstanding notes pursuant to the exchange offer. We will pay all charges and
expenses, other than certain applicable taxes, in connection with the exchange
offer. See "--Fees and Expenses."
Expiration Date; Extensions; Amendments
The term "expiration date" shall mean 5:00 p.m., New York City time, on [
], 2004, unless we, in our sole discretion, extend the exchange offer, in which
case the term "expiration date" shall mean the latest date and time to which the
exchange offer is extended. In order to extend the exchange offer, we will
notify the exchange agent by oral or written notice and each registered holder
by means of press release or other public announcement of any extension, in each
case, prior to 9:00 a.m., New York City time, on the next business day after the
previously scheduled expiration date. We reserve the right, in our sole
discretion, (1) to delay accepting any outstanding notes, (2) to extend the
exchange offer, (3) to terminate the exchange offer if the conditions set forth
below under "--Conditions to the Exchange Offer" shall not have been satisfied,
or (4) to amend the terms of the exchange offer in any manner. We will notify
the exchange agent of any delay, extension, termination or amendment by oral or
written notice. We will additionally notify each registered holder of any
amendment. We will give to the exchange agent written confirmation of any oral
notice.
Exchange Date
As soon as practicable after the close of the exchange offer we will accept
for exchange all outstanding notes properly tendered and not validly withdrawn
prior to 5:00 p.m., New York City time, on the expiration date in accordance
with the terms of this prospectus and the letter of transmittal.
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Conditions to the Exchange Offer
Notwithstanding any other provisions of the exchange offer, and subject to
our obligations under the registration rights agreement, we (1) shall not be
required to accept any outstanding notes for exchange, (2) shall not be required
to issue exchange notes in exchange for any outstanding notes and (3) may
terminate or amend the exchange offer if, at any time before the acceptance of
such notes for exchange, any of the following events shall occur:
(1) any injunction, order or decree shall have been issued by any
court or any governmental agency that would prohibit, prevent or otherwise
materially impair our ability to proceed with the exchange offer;
(2) any change, or any development involving a prospective change, in
our business or financial affairs or any of our subsidiaries has occurred
which, in our sole judgment, might materially impair our ability to proceed
with the exchange offer or materially impair the contemplated benefits of
the exchange offer to us;
(3) any law, statute, rule or regulation is proposed, adopted or
enacted which, in our sole judgment, might materially impair our ability to
proceed with the exchange offer or materially impair the contemplated
benefits of the exchange offer to us;
(4) any governmental approval has not been obtained, which approval we
shall, in our sole discretion, deem necessary for the consummation of the
exchange offer as contemplated hereby; or
(5) the exchange offer will violate any applicable law or any
applicable interpretation of the staff of the Commission.
The foregoing conditions are for our sole benefit and may be asserted by us
regardless of the circumstances giving rise to any such condition or may be
waived by us in whole or in part at any time and from time to time in our sole
discretion. Our failure at any time to exercise any of the foregoing rights
shall not be deemed a waiver of any such right and such right shall be deemed an
ongoing right which may be asserted at any time and from time to time.
In addition, we will not accept for exchange any outstanding notes
tendered, and no exchange notes will be issued in exchange for any such
outstanding notes if at such time any stop order shall be threatened by the
Commission or be in effect with respect to the registration statement of which
this prospectus is a part or the qualification of the indenture under the Trust
Indenture Act of 1939, as amended.
The exchange offer is not conditioned on any minimum aggregate principal
amount of outstanding notes being tendered for exchange.
Consequences of Failure to Exchange
Any outstanding notes not tendered pursuant to the exchange offer will
remain outstanding and continue to accrue interest. The outstanding notes will
remain "restricted securities" within the meaning of the Securities Act.
Accordingly, prior to the date that is one year after the later of the issue
date and the last date on which we or any of our affiliates was the owner of the
outstanding notes, the outstanding notes may be resold only (1) to us, (2) to a
person who the seller reasonably believes is a "qualified institutional buyer"
purchasing for its own account or for the account of another "qualified
institutional buyer" in compliance with the resale limitations of Rule 144A, (3)
pursuant to the limitations on resale provided by Rule 144 under the Securities
Act, (4) pursuant to the resale provisions of Rule 904 of Regulation S under the
Securities Act, (5) pursuant to an effective registration statement under the
Securities Act or (6) pursuant to any other available exemption from the
registration requirements of the Securities Act, subject in each of the
foregoing cases to compliance with applicable
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state securities laws. As a result, the liquidity of the market for non-tendered
outstanding notes could be adversely affected upon completion of the exchange
offer. The foregoing restrictions on resale will no longer apply after the first
anniversary of the issue date of the outstanding note or the purchase of the
outstanding notes from us or an affiliate.
Fees and Expenses
We will not make any payments to brokers, dealers or others soliciting
acceptances of the exchange offer. The principal solicitation is being made by
mail; however, additional solicitations may be made in person or by telephone by
our officers and employees.
Expenses incurred in connection with the exchange offer will be paid by us.
Such expenses include, among others, the fees and expenses of the trustee and
the exchange agent, accounting and legal fees, printing costs and other
miscellaneous fees and expenses.
Accounting Treatment
We will not recognize any gain or loss for accounting purposes upon the
consummation of the exchange offer. We will amortize the expenses of the
exchange offer as additional interest expense over the term of the exchange
notes.
Procedures for Tendering Outstanding Notes
The tender of outstanding notes pursuant to any of the procedures set forth
in this prospectus and in the letter of transmittal will constitute a binding
agreement between the tendering holder and us in accordance with the terms and
subject to the conditions set forth in this prospectus and in the letter of
transmittal. The tender of outstanding notes will constitute an agreement to
deliver good and marketable title to all tendered outstanding notes prior to the
expiration date free and clear of all liens, charges, claims, encumbrances,
interests and restrictions of any kind.
Except as provided in "--Guaranteed Delivery Procedures," unless the
outstanding notes being tendered are deposited by you with the exchange agent
prior to the expiration date and are accompanied by a properly completed and
duly executed letter of transmittal, we may, at our option, reject the tender.
Issuance of exchange notes will be made only against deposit of tendered
outstanding notes and delivery of all other required documents. Notwithstanding
the foregoing, DTC participants tendering through its Automated Tender Offer
Program ("ATOP") will be deemed to have made valid delivery where the exchange
agent receives an agent's message prior to the expiration date.
Accordingly, to properly tender outstanding notes, the following procedures
must be followed:
Notes held through a Custodian. Each beneficial owner holding outstanding
notes through a DTC participant must instruct the DTC participant to cause its
outstanding notes to be tendered in accordance with the procedures set forth in
this prospectus.
Notes held through DTC. Pursuant to an authorization given by DTC to the
DTC participants, each DTC participant holding outstanding notes through DTC
must (1) electronically transmit its acceptance through ATOP, and DTC will then
edit and verify the acceptance, execute a book-entry delivery to the exchange
agent's account at DTC and send an agent's message to the exchange agent for its
acceptance, or (2) comply with the guaranteed delivery procedures set forth
below and in a notice of guaranteed delivery. See "--Guaranteed Delivery
Procedures--Notes held through DTC."
The exchange agent will (promptly after the date of this prospectus)
establish accounts at DTC for purposes of the exchange offer with respect to
outstanding notes held through DTC. Any financial institution that is a DTC
participant may make book-entry delivery of interests in outstanding notes into
the exchange agent's account
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through ATOP. However, although delivery of interests in the outstanding notes
may be effected through book-entry transfer into the exchange agent's account
through ATOP, an agent's message in connection with such book-entry transfer,
and any other required documents, must be, in any case, transmitted to and
received by the exchange agent at its address set forth under "--Exchange
Agent," or the guaranteed delivery procedures set forth below must be complied
with, in each case, prior to the expiration date. Delivery of documents to DTC
does not constitute delivery to the exchange agent. The confirmation of a
book-entry transfer into the exchange agent's account at DTC as described above
is referred to herein as a "Book-Entry Confirmation."
The term "agent's message" means a message transmitted by DTC to, and
received by, the exchange agent and forming a part of the book-entry
confirmation, which states that DTC has received an express acknowledgment from
each DTC participant tendering through ATOP that such DTC participants have
received a letter of transmittal and agree to be bound by the terms of the
letter of transmittal and that we may enforce such agreement against such DTC
participants.
Cede & Co., as the holder of the global note, will tender a portion of the
global note equal to the aggregate principal amount due at the stated maturity
for which instructions to tender are given by DTC participants.
By tendering, each holder and each DTC participant will represent to us
that, among other things, (1) it is not our affiliate, (2) it is not a
broker-dealer tendering outstanding notes acquired directly from us for its own
account, (3) it is acquiring the exchange notes in its ordinary course of
business and (4) it is not engaged in, and does not intend to engage in, and has
no arrangement or understanding with any person to participate in, a
distribution of the exchange notes.
We will not accept any alternative, conditional, irregular or contingent
tenders (unless waived by us). By executing a letter of transmittal or
transmitting an acceptance through ATOP, as the case may be, each tendering
holder waives any right to receive any notice of the acceptance for purchase of
its outstanding notes.
We will resolve all questions as to the validity, form, eligibility
(including time of receipt) and acceptance of tendered outstanding notes, and
such determination will be final and binding. We reserve the absolute right to
reject any or all tenders that are not in proper form or the acceptance of which
may, in the opinion of our counsel, be unlawful. We also reserve the absolute
right to waive any condition to the exchange offer and any irregularities or
conditions of tender as to particular outstanding notes. Our interpretation of
the terms and conditions of the exchange offer (including the instructions in
the letter of transmittal) will be final and binding. Unless waived, any
irregularities in connection with tenders must be cured within such time as we
shall determine. We, along with the exchange agent, shall be under no duty to
give notification of defects in such tenders and shall not incur liabilities for
failure to give such notification. Tenders of outstanding notes will not be
deemed to have been made until such irregularities have been cured or waived.
Any outstanding notes received by the exchange agent that are not properly
tendered and as to which the irregularities have not been cured or waived will
be returned by the exchange agent to the tendering holder, unless otherwise
provided in the letter of transmittal, as soon as practicable following the
expiration date.
LETTERS OF TRANSMITTAL AND OUTSTANDING NOTES MUST BE SENT ONLY TO THE
EXCHANGE AGENT. DO NOT SEND LETTERS OF TRANSMITTAL OR OUTSTANDING NOTES TO US OR
DTC.
The method of delivery of outstanding notes, letters of transmittal, any
required signature guaranties and all other required documents, including
delivery through DTC and any acceptance through ATOP, is at the election and
risk of the persons tendering and delivering acceptances or letters of
transmittal and, except as otherwise provided in the applicable letter of
transmittal, delivery will be deemed made only when actually received by the
exchange agent. If delivery is by mail, it is suggested that the holder use
properly insured, registered mail with return receipt requested, and that the
mailing be made sufficiently in advance of the expiration date to permit
delivery to the exchange agent prior to the expiration date.
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Guaranteed Delivery Procedures
Notes held through DTC. DTC participants holding outstanding notes through
DTC who wish to cause their outstanding notes to be tendered, but who cannot
transmit their acceptances through ATOP prior to the expiration date, may cause
a tender to be effected if:
(1) guaranteed delivery is made by or through a firm or other entity
identified in Rule 17Ad-15 under the Exchange Act, including:
o a bank;
o a broker, dealer, municipal securities dealer, municipal
securities broker, government securities dealer or government
securities broker;
o a credit union;
o a national securities exchange, registered securities association
or clearing agency; or
o a savings institution that is a participant in a Securities
Transfer Association recognized program;
(2) prior to the expiration date, the exchange agent receives from any
of the above institutions a properly completed and duly executed notice of
guaranteed delivery (by mail, hand delivery, facsimile transmission or
overnight courier) substantially in the form provided with this prospectus;
and
(3) book-entry confirmation and an agent's message in connection
therewith are received by the exchange agent within three NYSE trading days
after the date of the execution of the notice of guaranteed delivery.
Notes held by Holders. Holders who wish to tender their outstanding notes
but (1) whose outstanding notes are not immediately available and will not be
available for tendering prior to the expiration date or (2) who cannot deliver
their outstanding notes, the letter of transmittal, or any other required
documents to the exchange agent prior to the expiration date, may effect a
tender if:
o the tender is made by or through any of the above-listed institutions;
o prior to the expiration date, the exchange agent receives from any
above-listed institution a properly completed and duly executed notice
of guaranteed delivery, whether by mail, hand delivery, facsimile
transmission or overnight courier, substantially in the form provided
with this prospectus; and
o a properly completed and executed letter of transmittal, as well as
the certificate(s) representing all tendered outstanding notes in
proper form for transfer, and all other documents required by the
letter of transmittal, are received by the exchange agent within three
NYSE trading days after the date of the execution of the notice of
guaranteed delivery.
Withdrawal Rights
You may withdraw tenders of outstanding notes, or any portion of your
outstanding notes, in integral multiples of $1,000 principal amount due at the
stated maturity, at any time prior to 5:00 p.m., New York City time, on the
expiration date. Any outstanding notes properly withdrawn will be deemed to be
not validly tendered for purposes of the exchange offer.
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Notes held through DTC. DTC participants holding outstanding notes who have
transmitted their acceptances through ATOP may, prior to 5:00 p.m., New York
City time, on the expiration date, withdraw the instruction given thereby by
delivering to the exchange agent, at its address set forth under "--Exchange
Agent," a written, telegraphic or facsimile notice of withdrawal of such
instruction. Such notice of withdrawal must contain the name and number of the
DTC participant, the principal amount due at the stated maturity of outstanding
notes to which such withdrawal relates and the signature of the DTC participant.
Receipt of such written notice of withdrawal by the exchange agent effectuates a
withdrawal.
Notes held by Holders. Holders may withdraw their tender of outstanding
notes, prior to 5:00 p.m., New York City time, on the expiration date, by
delivering to the exchange agent, at its address set forth under "--Exchange
Agent," a written, telegraphic or facsimile notice of withdrawal. Any such
notice of withdrawal must (1) specify the name of the person who tendered the
outstanding notes to be withdrawn, (2) contain a description of the outstanding
notes to be withdrawn and identify the certificate number or numbers shown on
the particular certificates evidencing such outstanding notes and the aggregate
principal amount due at the stated maturity represented by such outstanding
notes and (3) be signed by the holder of such outstanding notes in the same
manner as the original signature on the letter of transmittal by which such
outstanding notes were tendered (including any required signature guaranties),
or be accompanied by (x) documents of transfer in a form acceptable to us, in
our sole discretion, and (y) a properly completed irrevocable proxy that
authorized such person to effect such revocation on behalf of such holder. If
the outstanding notes to be withdrawn have been delivered or otherwise
identified to the exchange agent, a signed notice of withdrawal is effective
immediately upon written, telegraphic or facsimile notice of withdrawal even if
physical release is not yet effected.
All signatures on a notice of withdrawal must be guaranteed by a recognized
participant in the Securities Transfer Agents Medallion Program, the New York
Stock Exchange Medallion Signature Program or the Stock Exchange Medallion
Program; provided, however, that signatures on the notice of withdrawal need not
be guaranteed if the outstanding notes being withdrawn are held for the account
of any of the institutions listed above under "--Guaranteed Delivery
Procedures."
A withdrawal of an instruction or a withdrawal of a tender must be executed
by a DTC participant or a holder of outstanding notes, as the case may be, in
the same manner as the person's name appears on its transmission through ATOP or
letter of transmittal, as the case may be, to which such withdrawal relates. If
a notice of withdrawal is signed by a trustee, partner, executor, administrator,
guardian, attorney-in-fact, agent, officer of a corporation or other person
acting in a fiduciary or representative capacity, such person must so indicate
when signing and must submit with the revocation appropriate evidence of
authority to execute the notice of withdrawal. A DTC participant or a holder may
withdraw an instruction or a tender, as the case may be, only if such withdrawal
complies with the provisions of this prospectus.
A withdrawal of a tender of outstanding notes by a DTC participant or a
holder, as the case may be, may be rescinded only by a new transmission of an
acceptance through ATOP or execution and delivery of a new letter of
transmittal, as the case may be, in accordance with the procedures described
herein.
Exchange Agent
The Bank of New York has been appointed as exchange agent for the exchange
offer. Questions, requests for assistance and requests for additional copies of
this prospectus or of the letter of transmittal should be directed to the
exchange agent addressed as follows:
The Bank of New York
Corporate Trust Operations
Reorganization Unit
101 Barclay Street - 7 East
New York, NY 10286
Telephone: (212) 815-6331
Facsimile: (212) 298-1915
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Attention: Giselle Guadalupe
The exchange agent also acts as trustee under the Indenture.
Transfer Taxes
Holders of outstanding notes who tender their outstanding notes for
exchange notes will not be obligated to pay any transfer taxes in connection
therewith, except that holders who instruct us to register exchange notes in the
name of, or request that outstanding notes not tendered or not accepted in the
exchange offer be returned to, a person other than the registered tendering
holder will be responsible for the payment of any applicable transfer tax
thereon.
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DESCRIPTION OF EXCHANGE NOTES
General
The outstanding notes were and the exchange notes will be issued pursuant
to an Indenture (the "Indenture"), dated as of January 29, 2004, among the
Company, as Issuer, The Vail Corporation, Vail Holdings, Inc. and each of the
other Guarantors, as guarantors, and The Bank of New York, as trustee (the
"Trustee"). The terms of the exchange notes are identical in all material
respects to the outstanding notes, except that the exchange notes have been
registered under the Securities Act and, therefore, will not bear legends
restricting their transfer and will not contain certain provisions providing for
liquidated damages under certain circumstances described in the Registration
Rights Agreement, the provisions of which will terminate upon the consummation
of the exchange offer. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (the "Trust Indenture Act"). The notes are subject to all
such terms, and Holders of notes are referred to the Indenture and the Trust
Indenture Act for a statement thereof. The following summary of the material
provisions of the Indenture does not purport to be complete and is qualified in
its entirety by reference to the Indenture, including the definitions therein of
certain terms used below. Copies of the proposed form of Indenture and
Registration Rights Agreement can be requested by prospective investors from the
Company at the address and telephone number set forth under "Where You Can Find
More Information." The definitions of certain terms used in the following
summary are set forth below under "Certain Definitions." For purposes of this
"Description of Exchange Notes," the term "Company" refers only to Vail Resorts,
Inc. and not to any of its Subsidiaries, and the term "Notes" refers to both the
outstanding notes and the exchange notes.
The Notes are general unsecured obligations of the Company and are
subordinated in right of payment to all existing and future Senior Debt of the
Company. As of January 31, 2004, after giving pro forma effect to the discharge
of all 2009 Notes (as defined below) not tendered in the tender offer, the
Company would have had consolidated Senior Debt of approximately $242.0 million
outstanding. The Indenture, subject to certain limitations, permits the
incurrence of additional Senior Debt in the future. As of the date of the
Indenture, all of the Company's consolidated Subsidiaries will be Restricted
Subsidiaries, other than Boulder/Beaver, LLC, Colter Bay Corporation, Eagle Park
Reservoir Company, Forest Ridge Holdings, Inc., Gros Ventre Utility Company,
Jackson Lake Lodge Corporation, Jenny Lake Lodge, Inc., Larkspur Restaurant and
Bar, LLC, Mountain Thunder, Inc., RTP, LLC, RT Partners, Inc., SSI Venture, LLC,
Timber Trail, Inc., Vail Associates Investments, Inc. and VR Holdings, Inc.
However, under certain circumstances, the Company is able to designate current
or future Subsidiaries as Unrestricted Subsidiaries. Unrestricted Subsidiaries
will not be subject to many of the restrictive covenants set forth in the
Indenture.
The obligations of the Company under the Notes are guaranteed, jointly and
severally on a senior subordinated basis, by the Guarantors. The Subsidiary
Guarantee of each Guarantor is subordinated in right of payment to all existing
and future Senior Debt of such Guarantor. See "--Subsidiary Guarantees."
Principal, Maturity and Interest
The Company issued $390 million in aggregate principal amount of notes in
the offering. The Company may issue additional notes under the Indenture from
time to time after the offering. Any issuance of additional notes is subject to
all of the covenants in the Indenture, including the covenant described below
under the caption "--Certain Covenants--Incurrence of Indebtedness and Issuance
of Preferred Stock." The notes and any additional notes subsequently issued
under the Indenture will be treated as a single class for all purposes under the
Indenture, including without limitation, waivers, amendments, redemptions and
offers to purchase.
Interest on the Notes will accrue at the rate of 6.75% per annum and will
be payable semi-annually in arrears on February 15 and August 15 of each year,
commencing on August 15, 2004, to Holders of record on the immediately preceding
February 1 and August 1, respectively. Interest on the Notes will accrue from
the most recent date to which interest has been paid or, if no interest has been
paid, from the date of original issuance. Interest will be computed on the basis
of a 360-day year comprised of twelve 30-day months. Principal of and premium,
if any, interest and liquidated damages, if any, on the Notes will be payable at
the office or agency of the Company maintained for such purpose or, at the
option of the Company, payment of interest and liquidated damages may be made
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by check mailed to the Holders of the Notes at their respective addresses set
forth in the register of Holders of Notes; provided that all payments of
principal, premium, if any, interest and liquidated damages, if any, with
respect to Notes the Holders of which have given wire transfer instructions to
the Company will be required to be made by wire transfer of immediately
available funds to the accounts specified by the Holders thereof. Until
otherwise designated by the Company, the Company's office or agency will be the
office of the Trustee maintained for such purpose. The Notes will be issued in
denominations of $1,000 and integral multiples thereof.
Subordination
The payment (by set-off, redemption, repurchase or otherwise) of principal
of and premium, if any, interest and liquidated damages, if any, on the Notes
(including with respect to any repurchases of the Notes) is subordinated in
right of payment, as set forth in the Indenture, to the prior payment in full in
cash or, at the option of the holders of Senior Debt of the Company, in Cash
Equivalents, of all Obligations in respect of Senior Debt of the Company,
whether outstanding on the date of the Indenture or thereafter incurred.
Upon any distribution to creditors of the Company upon any liquidation,
dissolution or winding up of the Company or in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to the Company or its
property, whether voluntary or involuntary, an assignment for the benefit of
creditors or any marshalling of the Company's assets and liabilities, the
holders of Senior Debt of the Company are entitled to receive payment in full in
cash or, at the option of the holders of Senior Debt of the Company, in Cash
Equivalents, of all Obligations due or to become due in respect of such Senior
Debt (including interest after the commencement of any such proceeding, at the
rate specified in the applicable Senior Debt) before the Holders of Notes are
entitled to receive any payment of principal of, or premium, if any, interest or
liquidated damages, if any, on the Notes, and until all Obligations with respect
to Senior Debt of the Company are paid in full in cash or, at the option of the
holders of Senior Debt of the Company, in Cash Equivalents, any distribution of
any kind or character to which the Holders of Notes would be entitled shall be
made to the holders of Senior Debt of the Company (except that Holders of Notes
may receive Permitted Junior Securities and payments made from the trust
described under "--Legal Defeasance and Covenant Defeasance" or "--Satisfaction
and Discharge of the Indenture").
The Company also shall not, directly or indirectly, (x) make any payment of
principal of, or premium, if any, interest or liquidated damages, if any, on the
Notes (except in Permitted Junior Securities or from the trust described under
"--Legal Defeasance and Covenant Defeasance" or "--Satisfaction and Discharge of
the Indenture," if no default of the kind referred to in clause (i) below had
occurred and was continuing, and no Payment Blockage Notice (as defined below)
was in effect, at the time amounts were deposited with the Trustee as described
therein) or (y) acquire any of the Notes for cash or property or otherwise or
make any other distribution with respect to the Notes if (i) any default occurs
and is continuing in the payment when due, whether at maturity, upon any
redemption, by declaration or otherwise, of any principal of, or premium, if
any, or interest on, any Designated Senior Debt of the Company or (ii) any other
default occurs and is continuing with respect to Designated Senior Debt of the
Company that permits holders of the Designated Senior Debt of the Company as to
which such default relates to accelerate its maturity and the Trustee receives a
notice of such default (a "Payment Blockage Notice") from the holders of such
Designated Senior Debt of the Company. Payments on the Notes may and shall be
resumed (a) in the case of a payment default, upon the date on which such
default is cured or waived or otherwise has ceased to exist and (b) in the case
of a nonpayment default, upon the earlier of the date on which such nonpayment
default is cured or waived or otherwise has ceased to exist or 179 days after
the date on which the applicable Payment Blockage Notice is received, unless the
maturity of any Designated Senior Debt of the Company has been accelerated and
such acceleration remains in full force and effect. No new period of payment
blockage may be commenced unless and until 360 days have elapsed since the
effectiveness of the immediately prior Payment Blockage Notice. No nonpayment
default that existed or was continuing on the date of delivery of any Payment
Blockage Notice to the Trustee shall be, or be made, the basis for a subsequent
Payment Blockage Notice unless such nonpayment default shall have been waived
for a period of not less than 90 days. Each Holder by such Holder's acceptance
of a Note irrevocably agrees that if any payment or payments shall be made
pursuant to the Indenture and the amount or total amount of such payment or
payments exceeds the amount, if any, that such Holder would be entitled to
receive upon the proper application of the subordination provisions of the
Indenture, then such Holder will be obliged to pay over the amount of such
excess payment to the holders of Senior Debt of the Person that made such
payment or payments
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or their representative or representatives, as instructed in a written notice of
such excess payment, within ten days of receiving such notice.
The Indenture further requires that the Company promptly notify holders of
Senior Debt of the Company and the Guarantors if payment of the Notes is
accelerated because of an Event of Default.
As a result of the subordination provisions described above, in the event
of a liquidation or insolvency, Holders of Notes may recover less ratably than
creditors of the Company who are holders of Senior Debt. On a pro forma basis,
after giving effect to the discharge of all 2009 Notes not tendered in the
tender offer, the principal amount of consolidated Senior Debt of the Company
outstanding at January 31, 2004 would have been approximately $242.0 million.
The Indenture will limit, through certain financial tests, the amount of
additional Indebtedness, including Senior Debt, that the Company and its
Restricted Subsidiaries can incur. See "--Certain Covenants--Incurrence of
Indebtedness and Issuance of Preferred Stock."
"Designated Senior Debt" of any Person means (i) any Indebtedness of such
Person outstanding under the Credit Agreement and (ii) any other Senior Debt of
such Person, the principal amount of which is $25 million or more and that has
been designated by the Company as "Designated Senior Debt" of such Person.
"Permitted Junior Securities" means Equity Interests (other than
Disqualified Stock) in the Company or debt securities that are subordinated to
all Senior Debt of the issuer of such debt securities (and any debt securities
issued in exchange for Senior Debt of the issuer of such debt securities) to
substantially the same extent as, or to a greater extent than, the Notes are
subordinated to Senior Debt.
"Senior Debt" of any Person means (i) the Obligations of such Person under
the Credit Agreement, including, without limitation, Hedging Obligations and
reimbursement obligations in respect of letters of credit and bankers
acceptances, and (ii) any other Indebtedness of such Person, unless the
instrument under which such Indebtedness is incurred expressly provides that it
is on a parity with or subordinated in right of payment to the Notes.
Notwithstanding anything to the contrary in the foregoing, Senior Debt of a
Person will not include (v) any obligation to, in respect of or imposed by any
environmental, landfill, waste management or other regulatory governmental
agency, statute, law or court order, (w) any liability for federal, state, local
or other taxes, (x) any Indebtedness of such Person to any of its Subsidiaries
or other Affiliates, (y) any trade payables or (z) any Indebtedness that is
incurred by such Person in violation of the Indenture (except to the extent that
the original holder thereof relied in good faith after being provided with a
copy of the Indenture upon an Officer's Certificate of such Person to the effect
that the incurrence of such Indebtedness did not violate the Indenture).
Subsidiary Guarantees
The Company's payment obligations under the Notes are jointly and severally
guaranteed (the "Subsidiary Guarantees") by all of the Company's consolidated
Subsidiaries existing on the Closing Date, other than Boulder/Beaver, LLC,
Colter Bay Corporation, Eagle Park Reservoir Company, Forest Ridge Holdings,
Inc., Gros Ventre Utility Company, Jackson Lake Lodge Corporation, Jenny Lake
Lodge, Inc., Larkspur Restaurant and Bar ("Larkspur"), LLC, Mountain Thunder,
Inc., RTP, LLC, RT Partners, Inc., SSI Venture, LLC, Timber Trail, Inc., Vail
Associates Investments, Inc. and VR Holdings, Inc. Financial information related
to the Guarantors is presented in Note 16 to "Consolidated Condensed Financial
Statements" included in our Quarterly Report on Form 10-Q for the quarter ended
January 31, 2004 and in Note 20 to "Consolidated Financial Statements" included
in our Annual Report on Form 10-K for the year ended July 31, 2003. The
financial information presented in the Company's fiscal 2003 Form 10-K was
presented based on the Subsidiary Guarantees under the 2009 Notes, and therefore
presents financial information for Larkspur separately as a less than 100%-owned
Guarantor. Since Larkspur is not a Guarantor under the Notes, for purposes of
reviewing the Guarantor financial information contained in the Company's fiscal
2003 Form 10-K with respect to the Notes, the financial information presented
for Larkspur should be combined with the financial information contained in the
column titled "Other Subsidiaries".
The Subsidiary Guarantee of each Guarantor are subordinated in right of
payment to the same extent as the obligations of the Company in respect of the
Notes, as set forth in the Indenture, to the prior payment in full in cash or,
at the option of the holders of Senior Debt of such Guarantor, in Cash
Equivalents, of all Senior Debt of such Guarantor, which would include any
Guarantee issued by such Guarantor that constitutes Senior Debt of such
Guarantor, including Guarantees of Indebtedness under the Credit Agreement. The
Indenture provides that if the Company or any of its Restricted Subsidiaries
shall acquire or create another Restricted Subsidiary after the Closing Date, or
any Unrestricted Subsidiary shall cease to be an Unrestricted Subsidiary and
shall become a Restricted Subsidiary, then, unless such Subsidiary is not
required to guarantee and has not guaranteed the Company's Obligations under the
Credit Agreement and has not guaranteed any other Indebtedness of the Company or
any Restricted Subsidiary, such Subsidiary shall become a Guarantor in
accordance with the terms of the Indenture. A Subsidiary
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shall, without limitation, be deemed to have guaranteed Indebtedness of another
Person if such Subsidiary has Indebtedness of the kind described in clause (ii)
or clause (iii) of the definition of the term "Indebtedness." The obligations of
each Guarantor under its Subsidiary Guarantee will be limited to the maximum
amount that would not result in the obligations of such Guarantor under its
Subsidiary Guarantee constituting a fraudulent conveyance under applicable law.
The Indenture provides that no Guarantor may consolidate with or merge with
or into (whether or not such Guarantor is the surviving Person) another Person,
whether or not affiliated with such Guarantor, or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions to another Person, unless (i) the
Person formed by or surviving such consolidation or merger (if other than such
Guarantor) or to which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made is a Person organized and existing under
the laws of the United States of America, any state thereof or the District of
Columbia and expressly assumes all the obligations of such Guarantor, pursuant
to a supplemental indenture in form and substance reasonably satisfactory to the
Trustee, under the notes and the Indenture and (ii) immediately after giving
effect to such transaction, no Default or Event of Default exists. The
provisions of clause (i) of the preceding sentence shall not apply if the Person
formed by or surviving the relevant consolidation or merger or to which the
relevant sale, assignment, transfer, lease, conveyance or other disposition
shall have been made is the Company, a Guarantor or a Person that is not, after
giving effect to such transaction, a Restricted Subsidiary of the Company.
The Indenture provides that in the event of (i) a merger or consolidation
to which a Guarantor is a party, then the Person formed by or surviving such
merger or consolidation (if, after giving effect to such transaction, other than
the Company or a Restricted Subsidiary of the Company) shall be released and
discharged from the obligations of such Guarantor under its Subsidiary
Guarantee, (ii) a sale or other disposition (whether by merger, consolidation or
otherwise) of all of the Equity Interests of a Guarantor at the time owned by
the Company and its Restricted Subsidiaries to any Person that, after giving
effect to such transaction, is neither the Company nor a Restricted Subsidiary
of the Company or (iii) the release and discharge of a Guarantor from all
obligations under Guarantees of (x) Obligations under the Credit Agreement and
(y) any other Indebtedness of the Company or any of its Restricted Subsidiaries,
then in each such case such Guarantor shall be released and discharged from its
obligations under its Subsidiary Guarantee; provided that, in the case of each
of clauses (i) and (ii), (a) the relevant transaction is in compliance with the
Indenture and (b) the Person being released and discharged shall have been
released and discharged from all obligations it might otherwise have under
Guarantees of Indebtedness of the Company or any of its Restricted Subsidiaries
and, in the case of each of clauses (i), (ii) and (iii), immediately after
giving effect to such transaction, no Default or Event of Default shall exist.
Optional Redemption
Except as described below, the Notes will not be redeemable at the
Company's option prior to February 15, 2009. Thereafter, the Notes will be
subject to redemption at any time at the option of the Company, in whole or in
part, upon not less than 30 nor more than 60 days' notice, at the redemption
prices (expressed as percentages of principal amount) set forth below, plus
accrued and unpaid interest and liquidated damages, if any, thereon to the
applicable redemption date, if redeemed during the twelve-month period beginning
on February 15 of the years indicated below:
Year Percentage
---- ----------
2009 103.375%
2010 102.250%
2011 101.125%
2012 and thereafter 100.000%
Notwithstanding the foregoing, at any time on or prior to February 15, 2007
the Company may on any one or more occasions redeem up to 35% of the aggregate
principal amount of Notes theretofore issued under the Indenture at a redemption
price equal to 106.750% of the principal amount thereof, plus accrued and unpaid
interest and liquidated damages, if any, thereon to the redemption date, with
the net cash proceeds of one or more Equity Offerings; provided that (i) at
least 65% of the aggregate principal amount of Notes theretofore issued remain
outstanding
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immediately following each such redemption and (ii) such redemption shall occur
within 60 days of the closing of any such Equity Offering.
In addition, upon the occurrence of a Change of Control (as defined below)
at any time prior to February 15, 2009, the Notes will be subject to redemption
at any time at the option of the Company, in whole or in part, upon not less
than 30 nor more than 60 days' notice given within 30 days following such Change
of Control, at the Make-Whole Price, plus accrued and unpaid interest and
liquidated damages, if any, thereon to the applicable redemption date.
Selection and Notice
If less than all of the Notes are to be redeemed at any time, selection of
Notes for redemption will be made by the Trustee in compliance with the
requirements of the principal national securities exchange, if any, on which the
Notes are listed, or, if the Notes are not so listed, on a pro rata basis, by
lot or by such method as the Trustee shall deem fair and appropriate; provided
that no Notes of $1,000 or less shall be redeemed in part. Notices of redemption
shall be mailed by first class mail at least 30 but not more than 60 days before
the redemption date to each Holder of Notes to be redeemed at its registered
address. If any note is to be redeemed in part only, the notice of redemption
that relates to such note shall state the portion of the principal amount
thereof to be redeemed. A new note in principal amount equal to the unredeemed
portion thereof will be issued in the name of the Holder thereof upon
cancellation of the original note. Notes called for redemption become due on the
date fixed for redemption. On and after the redemption date, interest shall
cease to accrue on Notes or portions of Notes called for redemption.
Mandatory Redemption
Except as set forth below under "--Repurchase at the Option of Holders,"
the Company is not required to make mandatory redemption or sinking fund
payments with respect to the Notes.
Repurchase at the Option of Holders
Change of Control
Upon the occurrence of a Change of Control, unless notice of redemption of
the notes in whole has been given pursuant to the provisions of the Indenture
described above under "Optional Redemption," the Company will be obligated to
make an offer (a "Change of Control Offer") to each Holder of Notes to
repurchase all or any part (equal to $1,000 or an integral multiple thereof) of
such Holder's Notes at an offer price in cash equal to 101% of the aggregate
principal amount thereof, plus accrued and unpaid interest and liquidated
damages, if any, thereon to the date of purchase (the "Change of Control
Payment").
Within 30 days following a Change of Control, the Company will mail a
notice to each Holder with a copy to the Trustee describing the transaction or
transactions that constitute the Change of Control and offering to repurchase
Notes on the date specified in such notice, which date shall be no earlier than
30 days and no later than 60 days from the date such notice is mailed (the
"Change of Control Payment Date"), pursuant to the procedures required by the
Indenture and described in such notice. In addition, the Company will comply
with the requirements of Rule 14e-1 under the Exchange Act and any other
securities laws and regulations thereunder to the extent such laws and
regulations are applicable in connection with the repurchase of the Notes as a
result of a Change of Control.
On the Change of Control Payment Date, the Company will, to the extent
lawful, (i) accept for payment all Notes or portions thereof properly tendered
pursuant to the Change of Control Offer, (ii) deposit with the Paying Agent an
amount equal to the Change of Control Payment in respect of all Notes or
portions thereof so tendered and (iii) deliver or cause to be delivered to the
Trustee the Notes so accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions thereof being purchased by the
Company. The Paying Agent will promptly mail or deliver to each Holder of Notes
so tendered the Change of Control Payment for such Notes, and the Trustee will
promptly authenticate and mail (or cause to be transferred by book entry) to
each Holder a new Note equal in principal amount to any unpurchased portion of
the Notes surrendered, if any; provided that
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each such new Note will be in a principal amount of $1,000 or an integral
multiple thereof. The Company will publicly announce the results of the Change
of Control Offer on or as soon as practicable after the Change of Control
Payment Date.
The Company is not required to make a Change of Control Offer following a
Change of Control if a third party makes such a Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set forth
in the Indenture applicable to a Change of Control Offer made by the Company and
purchases all notes validly tendered and not withdrawn pursuant to such Change
of Control Offer.
The Change of Control provisions described above will be applicable whether
or not any other provisions of the Indenture are applicable. Except as described
above with respect to a Change of Control, the Indenture does not contain
provisions that permit the Holders of the Notes to require that the Company
repurchase or redeem the Notes in the event of a takeover, recapitalization or
similar transaction. However, restrictions in the Indenture described herein on
the ability of the Company and its Restricted Subsidiaries to incur additional
Indebtedness, to grant Liens on their respective properties, to make Restricted
Payments and to make Asset Sales may also make more difficult or discourage a
takeover of the Company, whether favored or opposed by the management of the
Company. Consummation of any such transaction in certain circumstances may
require repurchase of the Notes, and there can be no assurance that the Company
or the acquiring party will have sufficient financial resources to effect such
repurchase. Such restrictions and the restrictions on transactions with
Affiliates may, in certain circumstances, make more difficult or discourage any
leveraged buyout of the Company or any of its Subsidiaries by their management.
While such restrictions cover a wide variety of arrangements which have
traditionally been used to effect highly leveraged transactions, the Indenture
may not afford the Holders of Notes protection in all circumstances from the
adverse aspects of a highly leveraged transaction, reorganization,
restructuring, merger or similar transaction.
The Credit Agreement prohibits the Company from repurchasing any Notes
without the prior written consent of lenders holding a majority of the
commitments under the Credit Agreement. Any other credit agreements or other
agreements governing indebtedness to which the Company becomes a party may
contain similar restrictions and provisions and may, like the Credit Agreement,
provide that certain change of control events with respect to the Company would
constitute events of default thereunder. In the event a Change of Control occurs
at a time when the Company is prohibited from repurchasing Notes, the Company
could seek the consent of its lenders to the repurchase of Notes or could
attempt to refinance or repay the borrowings that contain such prohibition. If
the Company does not obtain such a consent or repay such borrowings, the Company
will remain prohibited from repurchasing Notes. In such case, the Company's
failure to repurchase tendered Notes would constitute an Event of Default under
the Indenture which would, in turn, constitute a default under the Credit
Agreement. In such circumstances, the subordination provisions in the Indenture
would likely restrict payments to the Holders of the Notes.
The definition of Change of Control includes a phrase relating to the sale,
lease, transfer, conveyance or other disposition of "all or substantially all"
of the assets of the Company and its Restricted Subsidiaries taken as a whole.
Although there is case law interpreting the phrase "substantially all," there is
no precise established definition of the phrase under applicable law.
Accordingly, the ability of a Holder of Notes to require the Company to
repurchase such Notes as a result of a sale, lease, transfer, conveyance or
other disposition of less than all of the assets of the Company and its
Restricted Subsidiaries taken as a whole to another Person or group may be
uncertain.
Asset Sales
The Indenture provides that the Company will not, and will not permit any
of its Restricted Subsidiaries to, directly or indirectly, consummate an Asset
Sale unless (i) the Company (or such Restricted Subsidiary, as the case may be)
receives consideration at the time of such Asset Sale at least equal to the fair
market value (evidenced by a Board Resolution) of the assets or Equity Interests
issued or sold or otherwise disposed of and (ii) at least 75% of the
consideration therefor received by the Company or such Restricted Subsidiary is
in the form of (x) cash or Cash Equivalents or (y) a controlling interest in
another business or fixed or other long-term assets, in each case, in a Similar
Business; provided that the amount of (a) any liabilities (as shown on the
Company's or such Restricted Subsidiary's most recent balance sheet) of the
Company or such Restricted Subsidiary (other than contingent liabilities and
liabilities that are by their terms subordinated to the Notes or any Guarantee
thereof) that are assumed by the
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transferee of any such assets or Equity Interests such that the Company or such
Restricted Subsidiary are released from further liability and (b) any
securities, Notes or other obligations received by the Company or such
Restricted Subsidiary from such transferee that are converted by the Company or
such Restricted Subsidiary into cash within 90 days or are guaranteed (by means
of a letter of credit or otherwise) by an institution specified in the
definition of "Cash Equivalents" (to the extent of the cash received or the
obligations so guaranteed) shall be deemed to be cash or Cash Equivalents for
purposes of this provision, subject to application as provided in the following
paragraph.
Within 365 days after the receipt of any Net Proceeds from an Asset Sale,
the Company, at its option, may (i) apply such Net Proceeds to permanently
prepay, repay or reduce any Senior Debt of the Company (and to correspondingly
reduce commitments with respect thereto in the case of revolving borrowings) or
(ii) apply such Net Proceeds to the acquisition of a controlling interest in
another business, the making of a capital expenditure in or the acquisition of
other long-term assets that are used or useful in each case, in a Similar
Business (or enter into a binding agreement to purchase such business or assets
or make such capital expenditure; provided that if such binding agreement ceases
to be in full force and effect during such 365-day period, the Company may enter
into another such binding agreement; provided further that if such binding
agreement ceases to be in full force and effect after such 365-day period, any
portion of the Net Proceeds of such Asset Sale not applied or invested pursuant
to such binding agreement shall constitute Excess Proceeds).
Pending the final application of any such Net Proceeds, the Company may
invest such Net Proceeds in any manner that is not prohibited by the Indenture.
Any Net Proceeds from Asset Sales that are not applied or invested as provided
in the first sentence of this paragraph will be deemed to constitute "Excess
Proceeds." When the aggregate amount of Excess Proceeds exceeds $25 million, the
Company will be required to make an offer to all Holders of Notes (and holders
of other Indebtedness of the Company to the extent required by the terms of such
other Indebtedness) (an "Asset Sale Offer") to purchase the maximum principal
amount of Notes (and such other Indebtedness) that does not exceed the Excess
Proceeds at an offer price in cash in an amount equal to 100% of the principal
amount thereof, plus accrued and unpaid interest and liquidated damages, if any,
thereon to the date of purchase, in accordance with the procedures set forth in
the Indenture. To the extent that the aggregate principal amount of Notes (and
such other Indebtedness) tendered pursuant to an Asset Sale Offer is less than
the Excess Proceeds, the Company may use any remaining Excess Proceeds for
general corporate purposes. If the aggregate principal amount of Notes (and such
other Indebtedness) tendered exceeds the amount of Excess Proceeds, the Notes
(and such other Indebtedness) to be purchased will be selected on a pro rata
basis. Upon completion of an Asset Sale Offer, the amount of Excess Proceeds
shall be reset at zero. The Asset Sale Offer must be commenced within 60 days
following the date on which the aggregate amount of Excess Proceeds exceeds $25
million and remain open for at least 30 and not more than 40 days (unless
otherwise required by applicable law). The Company will comply with the
requirements of Rule 14e-1 under the Exchange Act and any other securities laws
and regulations thereunder to the extent such laws and regulations are
applicable in connection with the repurchase of Notes pursuant to an Asset Sale
Offer.
The Credit Agreement prohibits the Company from repurchasing any Notes
without the prior written consent of lenders holding a majority of the
commitments under the Credit Agreement. Any other credit agreements or other
agreements governing indebtedness to which the Company becomes a party may
contain similar restrictions and provisions. In the event the Company is
required to make an Asset Sale Offer at a time when the Company is prohibited
from repurchasing Notes, the Company could seek the consent of its lenders to
the repurchase of Notes or could attempt to refinance or repay the borrowings
that contain such prohibition. If the Company does not obtain such a consent or
repay such borrowings, the Company will remain prohibited from repurchasing
Notes. In such case, the Company's failure to repurchase tendered Notes would
constitute an Event of Default under the Indenture which would, in turn,
constitute a default under the Credit Agreement. In such circumstances, the
subordination provisions in the Indenture would likely restrict payments to the
Holders of the Notes.
Any other credit agreements or other agreements governing indebtedness to
which the Company becomes a party may require that the Company and its
Subsidiaries apply all proceeds from certain asset sales to repay in full
outstanding obligations thereunder prior to the application of such proceeds to
repurchase outstanding Notes.
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Certain Covenants
Restricted Payments
The Indenture provides that neither the Company nor any of its Restricted
Subsidiaries will, directly or indirectly, (i) declare or pay any dividend or
make any other payment or distribution on account of the Company's Equity
Interests (including, without limitation, any payment in connection with any
merger or consolidation involving the Company) or to any direct or indirect
holders of the Company's Equity Interests in their capacity as such (other than
dividends or distributions (a) payable in Equity Interests (other than
Disqualified Stock) of the Company, (b) payable in Capital Stock or assets of an
Unrestricted Subsidiary of the Company or (c) payable to the Company or any
Restricted Subsidiary of the Company); (ii) purchase, redeem or otherwise
acquire or retire for value (including, without limitation, in connection with
any merger or consolidation involving the Company) any Equity Interests of the
Company, or any Equity Interests of any of its Restricted Subsidiaries held by
any Affiliate of the Company (other than any such Equity Interests owned by the
Company or any Restricted Subsidiary of the Company, any Equity Interests then
being issued by the Company or a Restricted Subsidiary of the Company or any
Investment in a Person that, after giving effect to such Investment, is a
Restricted Subsidiary of the Company); (iii) make any payment on or with respect
to, or purchase, redeem, repay, defease or otherwise acquire or retire for
value, any Indebtedness of the Company or any Guarantor that is subordinated in
right of payment to the Notes or any Guarantee thereof, except a regularly
scheduled payment of interest or principal or sinking fund payment (other than
the purchase or other acquisition of such subordinated Indebtedness made in
anticipation of satisfying any sinking fund payment due within one year from the
date of acquisition) or (iv) make any Restricted Investment (all such payments
and other actions set forth in clauses (i) through (iv) above being collectively
referred to as "Restricted Payments"), unless, at the time of and after giving
effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing
or would occur as a consequence thereof;
(b) the Company would, at the time of such Restricted Payment and after
giving pro forma effect thereto as if such Restricted Payment had been
made at the beginning of the applicable four-quarter period, have been
permitted to incur at least $1.00 of additional Indebtedness pursuant
to the Consolidated Interest Coverage Ratio test set forth in the
first paragraph of the covenant described below under the caption
"Incurrence of Indebtedness and Issuance of Preferred Stock"; and
(c) such Restricted Payment, together with the aggregate amount of all
other Restricted Payments declared or made by the Company and its
Restricted Subsidiaries after May 11, 1999 (without duplication and
excluding Restricted Payments permitted by clauses (ii) and (iii) of
the following paragraph), is less than the sum of (1) 50% of the
Consolidated Net Income of the Company for the period (taken as one
accounting period) from the beginning of the first fiscal quarter
commencing after May 11, 1999 to the end of the Company's most
recently ended fiscal quarter for which internal financial statements
are available at the time of such Restricted Payment (or, if such
Consolidated Net Income for such period is a deficit, less 100% of
such deficit); plus (2) 100% of the aggregate net cash proceeds and
the fair market value of any assets or property (as determined in good
faith by the Board of Directors of the Company) received by the
Company from the issue or sale since May 11, 1999 of Equity Interests
of the Company (other than Disqualified Stock), or of Disqualified
Stock or debt securities of the Company that have been converted into
such Equity Interests (other than Equity Interests or Disqualified
Stock or convertible debt securities sold to a Subsidiary of the
Company and other than Disqualified Stock or convertible debt
securities that have been converted into Disqualified Stock); plus (3)
with respect to Restricted Investments made after May 11, 1999, the
net reduction of such Restricted Investments as a result of (x) any
disposition of any such Restricted Investments sold or otherwise
liquidated or repaid, to the extent of the net cash proceeds and the
fair market value of any assets or property (as determined in good
faith by the Board of Directors of the Company) received, (y)
dividends, repayment of loans or advances or other transfers of assets
to the Company or any Restricted Subsidiary of the Company or (z) the
portion (proportionate to the Company's interest in the equity of a
Person) of the fair market value of the net assets of an Unrestricted
Subsidiary or other Person immediately prior to the time such
Unrestricted Subsidiary or other Person is designated or becomes a
Restricted Subsidiary of the Company (but only to the extent not
included in subclause
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(1) of this clause (c)); provided that the sum of items (x), (y) and
(z) of this subclause (3) shall not exceed, in the aggregate, the
aggregate amount of such Restricted Investments made after May 11,
1999.
The foregoing provisions will not prohibit (i) the payment of any dividend
within 60 days after the date of declaration thereof, if at said date of
declaration such payment would have complied with the provisions of the
Indenture; (ii) the redemption, repurchase, retirement, defeasance or other
acquisition of any subordinated Indebtedness or Equity Interests of the Company
in exchange for, or out of the net cash proceeds of the substantially concurrent
sale (other than to a Subsidiary of the Company) of, Equity Interests of the
Company (other than any Disqualified Stock, except to the extent that such
Disqualified Stock is issued in exchange for other Disqualified Stock or the net
cash proceeds of such Disqualified Stock are used to redeem, repurchase, retire
or otherwise acquire other Disqualified Stock); provided that the amount of any
such net cash proceeds that are utilized for any such redemption, repurchase,
retirement, defeasance or other acquisition shall be excluded from clause (c)(2)
of the preceding paragraph; (iii) the defeasance, redemption, repurchase or
other acquisition of subordinated Indebtedness in exchange for, or out of the
net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv)
the repurchase, redemption or other acquisition or retirement for value of any
Equity Interests of the Company or any Restricted Subsidiary of the Company held
by any employees, officers or directors of the Company or any of its Restricted
Subsidiaries or, upon the death, disability or termination of employment of such
officers, directors and employees, their authorized representatives in an
aggregate amount not to exceed in any twelve-month period, $2 million plus the
aggregate net cash proceeds from any issuance during such period of Equity
Interests by the Company to such employees, officers, directors or
representatives plus the aggregate net cash proceeds from any payments on life
insurance policies of which the Company or any of its Restricted Subsidiaries is
the beneficiary with respect to such employees, officers or directors the
proceeds of which are used to repurchase, redeem or acquire Equity Interests of
the Company held by such employees, officers, directors or representative; (v)
the repurchase of Equity Interests of the Company deemed to occur upon the
exercise of stock options or similar arrangement if such Equity Interests
represent a portion of the exercise price thereof; or (vi) additional Restricted
Payments in an amount not to exceed $25 million; provided, however, that at the
time of, and after giving effect to, any Restricted Payment permitted under
clause (iv) or (vi) no Default or Event of Default shall have occurred and be
continuing.
In the case of any Restricted Payments made other than in cash, the amount
thereof shall be the fair market value on the date of such Restricted Payment of
the asset(s) or securities proposed to be transferred or issued by the Company
or such Restricted Subsidiary, as the case may be, pursuant to the Restricted
Payment. The fair market value of any such asset(s) or securities shall be
determined in good faith by the Board of Directors of the Company. Where the
amount of any Investment made other than in cash is otherwise required to be
determined for purposes of the Indenture, then unless otherwise specified such
amount shall be the fair market value thereof on the date of such Investment,
and fair market value shall be determined in good faith by the Board of
Directors of the Company.
Designation of Unrestricted Subsidiaries
The Board of Directors of the Company may designate any Restricted
Subsidiary to be an Unrestricted Subsidiary if such designation would not cause
a Default. For purposes of making such determination, all outstanding
Investments (including without limitation any direct or indirect obligation to
subscribe for additional Equity Interests or maintain or preserve such
subsidiary's financial condition or to cause such person to achieve any
specified level of operating results) by the Company and its Restricted
Subsidiaries (except to the extent repaid) in the Subsidiary so designated will
be deemed to be Investments at the time of such designation and, except to the
extent, if any, that such Investments are Permitted Investments at such time,
will reduce the amount otherwise available for Restricted Payments. All such
outstanding Investments will be deemed to constitute Investments in an amount
equal to the fair market value of such Investments at the time of such
designation. Such designation will only be permitted if such Investment would be
permitted at such time and if such Restricted Subsidiary otherwise meets (or
would meet concurrently with the effectiveness of such designation) the
definition of an Unrestricted Subsidiary.
Any such designation by the Board of Directors of the Company shall be
evidenced to the Trustee by filing with the Trustee a Board Resolution giving
effect to such designation. The Board of Directors of the Company may at any
time designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided that such designation shall be deemed to be an incurrence of
Indebtedness by a Restricted Subsidiary of the Company of any outstanding
In-
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debtedness of such Unrestricted Subsidiary and such designation shall only be
permitted if (i) such Indebtedness is permitted under the covenant described
under the caption "Incurrence of Indebtedness and Issuance of Preferred Stock,"
and (ii) no Default or Event of Default would be in existence following such
designation.
Incurrence of Indebtedness and Issuance of Preferred Stock
The Indenture provides that neither the Company nor any of its Restricted
Subsidiaries will, directly or indirectly, create, incur, issue, assume,
guarantee or otherwise become directly or indirectly liable, contingently or
otherwise, with respect to (collectively, "incur") any Indebtedness (including
Acquired Debt) and that the Company's Restricted Subsidiaries will not issue any
shares of Preferred Stock (other than to the Company or a Restricted Subsidiary
of the Company); provided, however, that the Company and the Restricted
Subsidiaries may incur Indebtedness (including Acquired Debt) if the
Consolidated Interest Coverage Ratio for the Company's most recently ended four
full fiscal quarters for which internal financial statements are available
immediately preceding the date on which such additional Indebtedness is incurred
would have been equal to or greater than 2 to 1, determined on a pro forma
basis, as if the additional Indebtedness had been incurred at the beginning of
such four-quarter period and no Event of Default shall have occurred and be
continuing after giving effect on a pro forma basis to such incurrence.
The provisions of the first paragraph of this covenant will not apply to
the incurrence of any of the following items of Indebtedness (collectively,
"Permitted Debt"):
(i) the incurrence by the Company and its Restricted Subsidiaries of
Indebtedness under the Credit Agreement in an aggregate amount
outstanding (with letters of credit being deemed for all purposes of
the Indenture to have a principal amount equal to the maximum
potential liability of the Company and its Restricted Subsidiaries in
respect thereof) at any time not to exceed the greater of (x) $500
million and (y) 4.0 times Consolidated Resort EBITDA for the Company's
most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the date on
which such Indebtedness is being incurred less, in each case, the
aggregate amount of such Indebtedness permanently repaid with the Net
Proceeds of any Asset Sale;
(ii) the incurrence by the Company and its Restricted Subsidiaries of
Indebtedness represented by the Notes (including the exchange notes),
the Guarantees thereof and the Indenture in the principal amount of
Notes originally issued on the Closing Date;
(iii) the incurrence by the Company and its Restricted Subsidiaries of the
Existing Indebtedness;
(iv) the incurrence by the Company and its Restricted Subsidiaries of
additional Indebtedness (other than Hedging Obligations) in an
aggregate principal amount not to exceed $50 million at any time
outstanding;
(v) the incurrence by the Company and its Restricted Subsidiaries of
Indebtedness in connection with the acquisition of assets or a new
Restricted Subsidiary (including Indebtedness that was incurred by the
prior owner of such assets or by such Restricted Subsidiary prior to
such acquisition by the Company and its Restricted Subsidiaries);
provided that the aggregate principal amount of Indebtedness pursuant
to this clause (v) does not exceed $20 million at any time
outstanding;
(vi) the incurrence by the Company and its Restricted Subsidiaries of
Permitted Refinancing Indebtedness;
(vii) the incurrence by the Company or any of its Restricted Subsidiaries
of intercompany Indebtedness between or among the Company and its
Restricted Subsidiaries; provided, however, that any subsequent
issuance or transfer of Equity Interests that results in any such
Indebtedness being held by a Person other than the Company or a
Restricted Subsidiary of the Company, and any sale or other transfer
of any such Indebtedness to a Person that is not the Company or a
Restricted Subsidiary of the Company, shall
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be deemed, in each case, to constitute an incurrence of such
Indebtedness by the Company or such Restricted Subsidiary, as the case
may be;
(viii) the incurrence by the Company or any of its Restricted Subsidiaries
of Hedging Obligations incurred for the purpose of hedging against
fluctuations in currency values or for the purpose of fixing or
hedging interest rate risk with respect to any floating rate
Indebtedness of the Company or any of its Restricted Subsidiaries
permitted by the Indenture; provided that the notional principal
amount of any Hedging Obligations does not significantly exceed the
principal amount of Indebtedness to which such agreement relates;
(ix) the Guarantee by the Company or any of its Restricted Subsidiaries of
Indebtedness of the Company or a Restricted Subsidiary of the Company
permitted by the Indenture;
(x) the incurrence of Indebtedness arising from agreements providing for
indemnification, adjustment of purchase price, earn-out or other
similar obligations, in each case incurred in connection with the
acquisition or disposition of any business or assets or subsidiaries
of the Company permitted by the Indenture; and
(xi) the Indebtedness incurred from time to time under a revolving Credit
Facility of SSI Venture in an aggregate amount outstanding at any time
not to exceed $10 million, so long as SSI Venture remains a Restricted
Subsidiary of the Company (as of the Closing Date, SSI Venture is an
Unrestricted Subsidiary).
For purposes of determining the amount of any Indebtedness of any Person
under this covenant, (a) the principal amount of any Indebtedness of such Person
arising by reason of such Person having granted or assumed a Lien on its
property to secure Indebtedness of another Person shall be the lower of the fair
market value of such property and the principal amount of such Indebtedness
outstanding (or committed to be advanced) at the time of determination; (b) the
amount of any Indebtedness of such Person arising by reason of such Person
having Guaranteed Indebtedness of another Person where the amount of such
Guarantee is limited to an amount less than the principal amount of the
Indebtedness so Guaranteed shall be such amount as so limited and (c)
Indebtedness shall not include a non-recourse pledge by the Company or any of
its Restricted Subsidiaries of Investments in any Person that is not a
Restricted Subsidiary of the Company to secure the Indebtedness of such Person.
For purposes of determining compliance with this covenant, in the event
that an item of Indebtedness meets the criteria of more than one of the
categories of Permitted Debt described in clauses (i) through (xii) above or is
entitled to be incurred pursuant to the first paragraph of this covenant, the
Company, in its sole discretion, either (a) shall classify (and may later
reclassify) such item of Indebtedness in one of such categories in any manner
that complies with this covenant or (b) shall divide and classify (and may later
redivide and reclassify) such item of Indebtedness into more than one of such
categories pursuant to such first paragraph.
Liens
The Indenture provides that neither the Company nor any of its Restricted
Subsidiaries will, directly or indirectly, create, incur, assume or suffer to
exist any Lien securing Indebtedness on any asset now owned or here after
acquired, or any income or profits therefrom or assign or convey any right to
receive income therefrom, except Permitted Liens.
Dividend and Other Payment Restrictions Affecting Subsidiaries
The Indenture provides that neither the Company nor any of its Restricted
Subsidiaries will, directly or indirectly, create or otherwise cause or suffer
to exist or become effective any consensual encumbrance or restriction on the
ability of any Restricted Subsidiary to (i)(a) pay dividends or make any other
distributions to the Company or any of its Restricted Subsidiaries (1) on its
Capital Stock or (2) with respect to any other interest or participation in, or
measured by, its profits, or (b) pay any indebtedness or other obligations owed
to the Company or any of its Restricted Subsidiaries, (ii) make loans or
advances to the Company or any of its Restricted Subsidiaries, (iii) transfer
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any of its properties or assets to the Company or any of its Restricted
Subsidiaries or (iv) guarantee the notes or any renewals or refinancings
thereof, in each case except for such encumbrances or restrictions (other than
encumbrances and restrictions in respect of clause (iv) of this sentence)
existing under or by reason of (a) Existing Indebtedness, (b) the Credit
Agreement (and any amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings thereof; provided that
such amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacement or refinancings are no more restrictive with respect to
such dividend and other payment restrictions than those contained in the Credit
Agreement), (c) the Notes, any Guarantee thereof and the Indenture, (d)
applicable law, (e) any instrument governing Indebtedness or Equity Interests of
a Person acquired by the Company or any of its Restricted Subsidiaries as in
effect at the time of such acquisition (except to the extent such Indebtedness
or Equity Interests were incurred in connection with or in contemplation of such
acquisition), which encumbrance or restriction is not applicable to any Person,
or the Equity Interests, properties or assets of any Person, other than the
Person, or the Equity Interests, property or assets of the Person, so acquired;
provided that, in the case of Indebtedness, such Indebtedness was permitted by
the Indenture, (f) by reason of customary nonassignment provisions in leases
entered into in the ordinary course of business and consistent with past
practices, (g) purchase money obligations for property acquired in the ordinary
course of business that impose restrictions of the nature described in clause
(iii) above on the property so acquired or proceeds therefrom, (h) customary
restrictions in asset or stock sale agreements limiting transfer of such assets
or stock pending the closing of such sale, (i) customary non-assignment
provisions in contracts entered into in the ordinary course of business or (j)
Permitted Refinancing Indebtedness; provided that the restrictions contained in
the agreements governing such Permitted Refinancing Indebtedness are no more
restrictive than those contained in the agreements governing the Indebtedness
being refinanced.
Merger, Consolidation or Sale of Assets
The Indenture provides that the Company may not consolidate or merge with
or into (whether or not the Company is the surviving Person), or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
properties or assets in one or more related transactions to, another Person
unless (i) the Company is the surviving Person or the Person formed by or
surviving any such consolidation or merger (if other than the Company) or to
which such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made is a Person organized or existing under the laws of the
United States, any state thereof or the District of Columbia; (ii) the Person
formed by or surviving any such consolidation or merger (if other than the
Company) or the Person to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made assumes all the obligations
of the Company under the Notes and the Indenture pursuant to a supplemental
indenture in a form reasonably satisfactory to the Trustee; (iii) immediately
after giving effect to such transaction no Default or Event of Default exists
and (iv) except in the case of a merger of the Company with or into a Restricted
Subsidiary of the Company, the Company or the Person formed by or surviving any
such consolidation or merger (if other than the Company), or to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made, will, at the time of such transaction and after giving pro forma effect
thereto as if such transaction had occurred at the beginning of the applicable
four-quarter period, be permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth
in the first paragraph of the covenant described above under the caption
"Incurrence of Indebtedness and Issuance of Preferred Stock."
Nothing contained in the foregoing paragraph shall prohibit (i) any
Restricted Subsidiary from consolidating with, merging with or into or
transferring all or part of its properties and assets to the Company or (ii) the
Company from merging with an Affiliate for the purpose of reincorporating the
Company in another jurisdiction to realize tax or other benefits; provided,
however, that in connection with any such merger, consolidation or asset
transfer no consideration other than common stock (that is not Disqualified
Stock) in the surviving Person or the Company shall be issued or distributed.
Transactions with Affiliates
The Indenture provides that neither the Company nor any of its Restricted
Subsidiaries will make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit
of, any Affiliate (each of the foregoing, an "Affiliate Transaction"), unless
(i) such
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Affiliate Transaction is on terms that are no less favorable to Company or the
relevant Restricted Subsidiary than those that would have been obtained in a
comparable transaction by the Company or such Restricted Subsidiary with an
unrelated Person and (ii) the Company delivers to the Trustee (a) with respect
to any Affiliate Transaction or series of related Affiliate Transactions
involving aggregate payments or consideration in excess of $5 million, a Board
Resolution authorizing and determining the fairness of such Affiliate
Transaction approved by a majority of the independent members of the Board of
Directors of the Company and (b) with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate payments or
consideration in excess of $25 million, an opinion as to the fairness to the
Company or such Restricted Subsidiary of such Affiliate Transaction from a
financial point of view issued by an accounting, appraisal or investment banking
firm of national standing.
The foregoing provisions will not prohibit (i) reasonable fees and
compensation paid to and indemnity provided on behalf of officers, directors,
employees, agents or consultants of the Company or any Restricted Subsidiary of
the Company as determined in good faith by the Company's Board of Directors or
senior management including, without limitation, any issuance of Equity
Interests of the Company pursuant to stock option, stock ownership or similar
plans; (ii) transactions between or among the Company and/or its Restricted
Subsidiaries; (iii) any agreement or arrangement as in effect on the date of the
Indenture and publicly disclosed in a document filed under the Exchange Act or
any amendment thereto or any transaction contemplated thereby (including
pursuant to any amendment thereto) in any replacement agreement or arrangement
thereto so long as any such amendment or replacement agreement or arrangement is
not more disadvantageous to the Company or its Restricted Subsidiaries, as the
case may be, in any material respect than the original agreement as in effect on
the date of the Indenture; (iv) loans or advances to employees and officers of
the Company and its Restricted Subsidiaries not in excess of $5 million at any
time outstanding and (v) any Permitted Investment or any Restricted Payment that
is permitted by the provisions of the Indenture described above under the
caption "Restricted Payments."
Limitation on Layering Debt
The Indenture provides that (a) the Company will not, directly or
indirectly, incur, create, issue, assume, guarantee or otherwise become liable
for any Indebtedness that is by its terms subordinate or junior in right of
payment to any Senior Debt of the Company and senior in any respect in right of
payment to the Notes and (b) no Guarantor will, directly or indirectly, incur,
create, issue, assume, guarantee or otherwise become liable for any Indebtedness
that is by its terms subordinate or junior in right of payment to any Senior
Debt of such Guarantor and senior in any respect in right of payment to the
Subsidiary Guarantee of such Guarantor.
Additional Subsidiary Guarantees
The Indenture provides that if any Restricted Subsidiary of the Company
after the date of the Indenture shall become or be required to become a
guarantor under the Credit Agreement or shall become a guarantor of any other
Indebtedness of the Company or any Restricted Subsidiary, then such Restricted
Subsidiary shall become a Guarantor, in accordance with the terms of the
Indenture; provided that if such Restricted Subsidiary is released and
discharged from all obligations under such guarantees, it shall be released and
discharged from its obligations under its Subsidiary Guarantee as described
under "--Subsidiary Guarantees" above.
Payments for Consent
The Indenture provides that neither the Company nor any of its Restricted
Subsidiaries will, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to any Holder of
any Notes for or as an inducement to any consent, waiver or amendment of any of
the terms or provisions of the Indenture or the Notes unless such consideration
is offered to be paid or is paid to all Holders of the Notes that consent, waive
or agree to amend in the time frame set forth in the solicitation documents
relating to such consent, waiver or agreement.
Reports
The Indenture provides that, whether or not required by the rules and
regulations of the Commission, so long as any Notes are outstanding, the Company
will furnish to the Holders of Notes (i) all quarterly and annual
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financial information that would be required to be contained in a filing with
the Commission on Forms 10-Q and 10-K if the Company were required to file such
forms and, with respect to the annual information only, a report thereon by the
Company's certified independent accountants and (ii) all current reports that
would be required to be filed with the Commission on Form 8-K if the Company
were required to file such reports. In addition, whether or not required by the
rules and regulations of the Commission, the Company will file a copy of all
such information and reports with the Commission for public availability (unless
the Commission will not accept such a filing) and make such information
available to securities analysts and prospective investors upon request. In
addition, the Company and its Restricted Subsidiaries will agree that, for so
long as any Notes remain outstanding, they will furnish to the Holders and to
securities analysts and prospective investors, upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
Events of Default and Remedies
The Indenture provides that each of the following constitutes an Event of
Default: (i) default for 30 days in the payment when due of interest on, or
liquidated damages, if any, with respect to, the Notes (whether or not
prohibited by the subordination provisions of the Indenture); (ii) default in
payment when due (whether payable at maturity, upon redemption or repurchase or
otherwise) of the principal of or premium, if any, on the Notes (whether or not
prohibited by the subordination provisions of the Indenture); (iii) failure by
the Company or any of its Restricted Subsidiaries to comply with the provisions
described under the caption "Merger, Consolidation or Sale of Assets"; (iv)
failure by the Company to comply with the provisions described under the caption
"Change of Control" or "Asset Sales" (whether or not prohibited by the
subordination provisions of the Indenture) (other than a failure to purchase
Notes pursuant to an offer commenced under such provisions, which shall be
subject to clause (ii) above) for 30 days after written notice by the Trustee or
the Holders of at least 25% in principal amount of the then outstanding Notes;
(v) failure by the Company or any of its Restricted Subsidiaries for 60 days
after written notice by the Trustee or the Holders of at least 25% in principal
amount of the then outstanding Notes to comply with any of its other agreements
in the Indenture or the Notes other than those referred to in clause (i), (ii),
(iii) or (iv) above; (vi) default under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by the Company or any of its Significant
Subsidiaries (or the payment of which is guaranteed by the Company or any of its
Significant Subsidiaries), whether such Indebtedness or guarantee now exists or
is created after the Closing Date, which default (a) is caused by a failure to
pay principal after final maturity of such Indebtedness prior to the expiration
of the grace period provided in such Indebtedness on the date of such default (a
"Payment Default") or (b) results in the acceleration of such Indebtedness prior
to its express maturity and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of any other such Indebtedness
under which there has been a Payment Default or the maturity of which has been
so accelerated, aggregates $10 million or more without such Indebtedness being
discharged or such acceleration having been cured, waived or rescinded within 30
days of acceleration; (vii) failure by the Company or any of its Significant
Subsidiaries to pay final judgments aggregating in excess of $10 million and
either (a) any creditor commences enforcement proceedings upon any such judgment
or (b) such judgments are not paid, discharged or stayed for a period of 60
days; (viii) except as permitted by the Indenture, any Guarantee of the Notes by
a Significant Subsidiary shall be held in any judicial proceeding to be
unenforceable or invalid or shall cease for any reason to be in full force and
effect, or any Guarantor which is a Significant Subsidiary or any Person acting
on behalf of any such Guarantor shall deny or disaffirm its obligations under
its Guarantee of the Notes; and (ix) certain events of bankruptcy or insolvency
with respect to the Company or any of its Significant Subsidiaries.
If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Notes may
declare all the Notes and all other Obligations thereunder to be due and payable
immediately. Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy or insolvency, with respect to the
Company, all outstanding Notes will become due and payable without further
action or notice. Holders of the Notes may not enforce the Indenture or the
Notes except as provided in the Indenture. Subject to certain limitations,
Holders of a majority in principal amount of the then outstanding Notes may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of the Notes notice of any continuing Default or Event of
Default (except a Default or Event of Default relating to the payment of
principal, premium, if any, interest or liquidated damages, if any) if it
determines that withholding notice is in their interest.
-43-
In the case of any Event of Default occurring by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the Company or any
Guarantor with the intention of avoiding payment of the premium that the Company
would have had to pay if the Company then had elected to redeem the Notes
pursuant to the optional redemption provisions of the Indenture, an equivalent
premium shall also become and be immediately due and payable to the extent
permitted by law upon the acceleration of the Notes.
The Holders of a majority in aggregate principal amount of the Notes then
outstanding by notice to the Trustee may on behalf of the Holders of all of the
notes waive any existing Default or Event of Default and its consequences under
the Indenture except a continuing Default or Event of Default in the payment of
principal, premium, if any, interest or liquidated damages, if any, on the
Notes.
The Company is required to deliver to the Trustee annually a statement
regarding compliance with the Indenture, and the Company is required, upon
becoming aware of any Default or Event of Default, to deliver to the Trustee a
statement specifying such Default or Event of Default.
No Personal Liability of Directors, Officers, Employees, Incorporators and
Stockholders
No director, officer, employee, incorporator or stockholder of the Company
or any Guarantor, as such, shall have any liability for any obligations of the
Company or such Guarantor under the Notes, the Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each
Holder of Notes by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for issuance of the Notes. Such
waiver may not be effective to waive liabilities under the federal securities
laws and it is the view of the Commission that such a waiver is against public
policy.
Legal Defeasance and Covenant Defeasance
The Company may, at its option and at any time, elect to have all of its
obligations discharged with respect to the outstanding Notes ("Legal
Defeasance") except for (i) the rights of Holders of outstanding Notes to
receive payments in respect of the principal of and premium, if any, interest
and liquidated damages, if any, on the Notes when such payments are due from the
trust referred to below, (ii) the Company's obligations with respect to the
Notes concerning issuing temporary Notes, registration of Notes, mutilated,
destroyed, lost or stolen Notes and the maintenance of an office or agency for
payment and money for security payments held in trust, (iii) the rights, powers,
trusts, duties and immunities of the Trustee, and the Company's obligations in
connection therewith and (iv) the Legal Defeasance provisions of the Indenture.
In addition, the Company may, at its option and at any time, elect to have the
obligations of the Company released with respect to certain covenants that are
described in the Indenture ("Covenant Defeasance") and thereafter any omission
to comply with such obligations shall not constitute a Default or Event of
Default with respect to the Notes. In the event Covenant Defeasance occurs,
certain events (not including nonpayment, bankruptcy, receivership,
rehabilitation and insolvency events) described under "Events of Default" will
no longer constitute an Event of Default with respect to the Notes.
In order to exercise either Legal Defeasance or Covenant Defeasance, (i)
the Company must irrevocably deposit with the Trustee, in trust, for the benefit
of the Holders of the Notes, cash in U.S. dollars, non-callable Government
Securities, or a combination thereof, in such amounts as will be sufficient, in
the opinion of a nationally recognized firm of independent public accountants,
to pay the principal of and premium, if any, interest and liquidated damages, if
any, on the outstanding Notes on the Stated Maturity or on the applicable
redemption date, as the case may be, and the Company must specify whether the
notes are being defeased to maturity or to a particular redemption date; (ii) in
the case of Legal Defeasance, the Company shall have delivered to the Trustee an
opinion of counsel in the United States reasonably acceptable to the Trustee
confirming that (a) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling or (b) since the Closing Date, there
has been a change in the applicable federal income tax law, in either case to
the effect that, and based thereon such opinion of counsel shall confirm that,
the Holders of the outstanding
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Notes will not recognize income, gain or loss for federal income tax purposes,
as a result of such Legal Defeasance and will be subject to federal income tax
on the same amounts, in the same manner and at the same times as would have been
the case if such Legal Defeasance had not occurred; (iii) in the case of
Covenant Defeasance, the Company shall have delivered to the Trustee an opinion
of counsel in the United States reasonably acceptable to the Trustee confirming
that the Holders of the outstanding Notes will not recognize income, gain or
loss for federal income tax purposes as a result of such Covenant Defeasance and
will be subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such Covenant Defeasance
had not occurred; (iv) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of Default
resulting from the borrowing of funds to be applied to such deposit); (v) such
Legal Defeasance or Covenant Defeasance will not result in a breach or violation
of, or constitute a default under, any material agreement or instrument (other
than the Indenture) to which the Company or any of its Subsidiaries is a party
or by which the Company or any of its Subsidiaries is bound; (vi) the Company
shall have delivered to the Trustee an opinion of counsel to the effect that
after the 91st day following the deposit, the trust fund will not be subject to
the effect of any applicable bankruptcy, insolvency, reorganization or similar
laws affecting creditors' rights generally; (vii) the Company must deliver to
the Trustee an Officers' Certificate stating that the deposit was not made by
the Company with the intent of preferring the Holders of Notes over the other
creditors of the Company with the intent of defeating, hindering, delaying or
defrauding creditors of the Company or others; and (viii) the Company must
deliver to the Trustee an Officers' Certificate and an opinion of counsel, each
stating that all conditions precedent provided for relating to the Legal
Defeasance or the Covenant Defeasance have been complied with.
Satisfaction and Discharge of the Indenture
The obligations of the Company and the other Guarantors under the Indenture
will terminate when (i) either (a) all outstanding Notes have been delivered to
the Trustee for cancellation, or (b) all such Notes not theretofore delivered to
the Trustee for cancellation have become due and payable, will become due and
payable within one year or are to be called for redemption within one year under
irrevocable arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name and at the expense of the Company and the
Company has irrevocably deposited or caused to be deposited with the Trustee, in
trust, funds in an amount sufficient to pay and discharge the entire
indebtedness on the Notes not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest and liquidated
damages, if any, to the date of maturity or date of redemption, (ii) the Company
has paid or caused to be paid all sums payable by the Company under the
Indenture, and (iii) the Company has delivered an Officers' Certificate and an
Opinion of Counsel relating to compliance with the conditions set forth in the
Indenture.
Transfer and Exchange
A Holder may transfer or exchange Notes in accordance with the Indenture.
The Registrar and the Trustee may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and the Company may
require a Holder to pay any taxes and fees required by law or permitted by the
Indenture. The Company is not required to transfer or exchange any Note selected
for redemption. Also, the Company is not required to transfer or exchange any
Note for a period of 15 days before a selection of Notes to be redeemed.
The registered Holder of a Note will be treated as the owner of it for all
purposes.
Amendment, Supplement and Waiver
Except as provided in the next two succeeding paragraphs, the Indenture or
the Notes may be amended or supplemented with the consent of the Holders of at
least a majority in principal amount of the Notes then outstanding (including,
without limitation, consents obtained in connection with a purchase of, or
tender offer or exchange offer for, Notes), and any existing default or
compliance with any provision of the Indenture or the Notes may be waived with
the consent of the Holders of a majority in principal amount of the then
outstanding Notes (including consents obtained in connection with a tender offer
or exchange offer for Notes).
Without the consent of each Holder affected, an amendment or waiver may not
(with respect to any Notes held by a non-consenting Holder): (i) reduce the
principal amount of Notes whose Holders must consent to an amendment, supplement
or waiver; (ii) reduce the principal of or change the fixed maturity of any note
or alter the provisions with respect to the price to be paid, or the timing of
redemption or payment, upon redemption of the notes or, after the Company has
become obligated to make a Change of Control Offer or an Asset Sale Offer,
amend, change or modify the obligation of the Company to make or consummate such
Change of Control Offer or Asset
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Sale Offer; (iii) reduce the rate of or change the time for payment of interest
or liquidated damages, if any, on any Note; (iv) waive a Default or Event of
Default in the payment of principal of or premium, interest or liquidated
damages, if any, on the Notes (except a rescission of acceleration of the notes
by the Holders of at least a majority in aggregate principal amount of the Notes
and a waiver of the payment default that resulted from such acceleration); (v)
make any Note payable in money other than that stated in the Notes; (vi) except
pursuant to the terms of the Indenture, release any Guarantor from its Guarantee
of the Notes; (vii) make any change in the subordination provisions in the
Indenture that adversely affects the rights of any Holder of any Notes in any
material respect or any change to any other provision thereof that adversely
affects the rights of any Holder of Notes under the subordination provisions of
the Indenture in any material respect (it being understood that amendments to
the provisions of the Indenture described above under the caption "Certain
Covenants--Incurrence of Indebtedness and Issuance of Preferred Stock" which may
have the effect of increasing the amount of Senior Debt that the Company and its
Restricted Subsidiaries may incur shall not, for purposes of this clause (vii),
be deemed to be a change that adversely affects in a material respect the rights
of any Holder of Notes under the subordination provisions of the Indenture); or
(viii) make any change in the foregoing amendment and waiver provisions.
Notwithstanding the foregoing, without the consent of any Holder of Notes,
the Company, the Guarantors and the Trustee may amend or supplement the
Indenture and the Notes to cure any ambiguity, defect or inconsistency, to
provide for uncertificated Notes in addition to or in place of certificated
Notes, to provide for the assumption of the Company's or any Guarantor's
obligations to Holders of notes in the case of a merger, consolidation or sale
of assets, to provide security for the Notes, to add a Guarantor, to make any
change that would provide any additional rights or benefits to the Holders of
Notes or that does not adversely affect the legal rights under the Indenture of
any such Holder in any material respect, or to comply with requirements of the
Commission in order to effect or maintain the qualification of the Indenture
under the Trust Indenture Act.
The consent of the Holders of the Notes is not necessary under the
Indenture to approve the particular form of any proposed amendment. It is
sufficient if such consent approves the substance of the proposed amendment.
Concerning the Trustee
The Trustee has been appointed by the Company as Registrar and Paying Agent
with respect to the Notes.
The Indenture contains certain limitations on the rights of the Trustee,
should it become a creditor of the Company, to obtain payment of claims in
certain cases, or to realize on certain property received in respect of any such
claim as security or otherwise. The Trustee will be permitted to engage in other
transactions; however, if it acquires any conflicting interest it must eliminate
such conflict within 90 days and apply to the Commission for permission to
continue or resign.
The Holders of a majority in principal amount of the then outstanding Notes
will have the right to direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee, subject to
certain exceptions. The Indenture provides that in case an Event of Default
shall occur (which shall not be cured), the Trustee will be required, in the
exercise of its power, to use the degree of care of a prudent man in the conduct
of his own affairs. Subject to such provisions, the Trustee will be under no
obligation to exercise any of its rights or powers under the Indenture at the
request of any Holder of Notes, unless such Holder shall have offered to the
Trustee security and indemnity satisfactory to the Trustee against any loss,
liability or expense.
Global Notes and Book-Entry System
The Global Securities
The exchange notes will be issued in the form of one or more registered
notes in global form, without interest coupons. Such global notes will be
deposited on the issue date with the Trustee as custodian for DTC. Beneficial
interests in the global notes may not be exchanged for certificated notes except
in the circumstances described below. All interests in global notes may be
subject to the procedures and requirements of DTC.
-46-
Exchanges of beneficial interest in one global security for interest in
another global security will be subject to the applicable rules and procedures
of DTC and its direct and indirect participants. Any beneficial interest in one
of the global notes that is transferred to a person who takes delivery in the
form of an interest in another global security will, upon transfer, cease to be
an interest in that global security and become an interest in the global
security to which the beneficial interest is transferred and accordingly, will
thereafter be subject to all transfer restrictions, if any, and other procedures
applicable to beneficial interests in the global security to which the
beneficial interest is transferred for as long as it remains an interest in that
global security.
Certain Book-Entry Procedures for the Global Notes
The descriptions of the operations and procedures of DTC, as set forth
below, are provided solely as a matter of convenience. These operations and
procedures are solely within the control of DTC and are subject to change from
time to time. The Company takes no responsibility for these operations and
procedures and urges investors to contact DTC or their participants directly to
discuss these matters.
DTC has advised the Company that DTC is a limited-purpose trust company
created to hold securities for its participating organizations (collectively,
the "Participants") and to facilitate the clearance and settlement of
transactions in those securities between the Participants through electronic
book-entry changes in accounts of its Participants. The Participants include
securities brokers and dealers, banks, trust companies, clearing corporations
and certain other organizations. Access to DTC's system is also available to
other entities such as banks, brokers, dealers and trust companies that clear
through or maintain a custodial relationship with a Participant, either directly
or indirectly (collectively, the "Indirect Participants"). Persons who are not
Participants may beneficially own securities held by or on behalf of DTC only
through the Participants or the Indirect Participants. The ownership interests
in, and transfers of ownership interests in, each security held by or on behalf
of DTC are recorded on the records of the Participants and Indirect
Participants. The rules applicable to DTC and its Participants are on file with
the Commission. Upon the issuance of the global note representing the exchange
notes, DTC or its custodian will credit, on its internal system, the respective
principal amount of the individual beneficial interests represented by the
global note to the accounts of persons who have accounts with DTC. Ownership of
beneficial interest in the global notes will be shown on, and the transfer of
that ownership will be effected only through, records maintained by DTC or its
nominee (with respect to interests of Participants) and the records of
Participants and Indirect Participants (with respect to interests of persons
other than Participants).
So long as DTC or its nominee is the registered owner or holder of the
global note, DTC or such nominee, as the case may be, will be considered the
sole record owner or holder of the exchange notes represented by the global note
for all purposes under the Indenture and the exchange notes. Except as set forth
herein, owners of beneficial interest in the global note will not be entitled to
have exchange notes represented by the global note registered in their names,
will not receive or be entitled to receive physical delivery of exchange notes
in definitive certificated form, and will not be considered holders of the
exchange notes for any purposes under the Indenture. Accordingly, each person
owning a beneficial interest in the global note must rely on the procedures of
DTC and, if such person is not a Participant, on the procedures of the
Participant through which such person directly or indirectly owns its interest,
to exercise any rights of a holder under the Indenture. We understand that under
existing industry practices, if we request any action of holders or any owner of
a beneficial interest in the global note desires to give any notice or take
action that a holder is entitled to give or take under the indenture, DTC would
authorize the Participants holding the relevant beneficial interests to give
such notice to take such action, and such Participants would authorize
beneficial owners owning through such Participants to give such notice or take
action or would otherwise act upon the instructions of beneficial owners owning
through them.
Payments in respect of the principal of, premium, if any, and interest on
the global note will be made to DTC or its nominee, as the case may be, as the
registered owner. Neither we, the trustee nor any paying agent will have any
responsibility or liability for:
(1) any aspect of DTC's records or any Participant's or Indirect
Participant's records relating to or payments made on account of
beneficial ownership interest in the exchange global note or for
maintaining, supervising or reviewing any of DTC's records or any
Participant's or Indirect Participant's records relating to the
beneficial ownership interests in the exchange global notes; or
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(2) any other matter relating to the actions and practices of DTC or any
of its Participants or Indirect Participants.
We expect that DTC or its nominee, upon receipt of any payment of principal
of, premium, if any, or interest in respect of the global note will credit
Participants' accounts in the global note, as shown in the records of DTC, in
the principal amount of the relevant security as shown on the records of DTC or
its nominee. We also expect that payments by Participants to owners of
beneficial interests in the global note held through such Participants will be
governed by standing instructions and customary practices, as is now the case
with securities held for the accounts of customers registered in the names of
nominees for such customers. The Participants will be responsible for such
payments.
A global note is exchangeable for definitive notes in registered
certificated form ("Certificated Notes") if:
(1) DTC (a) notifies the Company that it is unwilling or unable to
continue as depositary for the global notes or (b) has ceased to be a
clearing agency registered under the Exchange Act and, in either case,
the Company fails to appoint a successor depositary;
(2) the Company, at its option, notifies the trustee in writing that it
elects to cause the issuance of the certificated notes; or
(3) there has occurred and is continuing a Default or Event of Default
with respect to the notes.
In addition, beneficial interests in a global note may be exchanged for
Certificated Notes upon prior written notice given to the trustee by or on
behalf of DTC in accordance with the Indenture. In all cases, Certificated Notes
delivered in exchange for any global note or beneficial interests in global
notes will be registered in the names, and issued in any approved denominations,
requested by or on behalf of the depositary (in accordance with its customary
procedures).
Although DTC has agreed to the procedures described above in order to
facilitate transfers of interests in the global note among Participants of DTC,
it is under no obligation to perform such procedures and such procedures may be
discontinued at any time. Neither we nor the trustee have any responsibility for
the performance by DTC or its Participants or Indirect Participants of their
respective obligations under the rules and procedures governing their
operations.
According to DTC, the foregoing information with respect to DTC has been
provided by it for informational purposes only and is not intended to serve as a
representation, warranty or contract modification of any kind. The information
contained herein concerning DTC and its book-entry-system has been obtained from
sources that we believe are reliable, although DTC has declined to pass upon the
accuracy of the statements contained herein.
Same Day Funds
We will make the payments of principal, premium, if any, and interest on
the global notes in immediately available funds to DTC.
Certain Definitions
Set forth below are certain defined terms used in the Indenture. Reference
is made to the Indenture for a full disclosure of all such terms, as well as any
other capitalized terms used herein for which no definition is provided.
"Acquired Debt" means, with respect to any specified Person, (i)
Indebtedness or preferred stock of any other Person existing at the time such
other Person is merged with or into or becomes a Subsidiary of such specified
Person, including, without limitation, Indebtedness or preferred stock incurred
in connection with, or in contempla-
-48-
tion of, such other Person merging with or into or becoming a Subsidiary of such
specified Person, and (ii) Indebtedness secured by a Lien encumbering any asset
acquired by such specified Person.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise.
"Apollo" means Apollo Ski Partners, L.P., subsidiary of Apollo Advisors,
L.P., a Delaware limited partnership.
"Asset Sale" means (i) the sale, lease, conveyance or other disposition
(collectively, "dispositions") of any assets or rights (including, without
limitation, by way of a Sale and Leaseback Transaction), other than dispositions
of inventory or sales or leases of real estate constituting Real Estate Held for
Sale in the ordinary course of business, and (ii) the issuance of Equity
Interests by any Restricted Subsidiary or the disposition by the Company or a
Restricted Subsidiary of Equity Interests in any of the Company's Restricted
Subsidiaries (other than directors' qualifying shares or shares required by
applicable law to be held by a Person other than the Company or a Restricted
Subsidiary of the Company), in the case of either clause (i) or (ii), whether in
a single transaction or a series of related transactions (a) that has a fair
market value in excess of $5 million or (b) for net proceeds in excess of $5
million. Notwithstanding the foregoing, the following will be deemed not to be
Asset Sales: (i) a transfer of assets by the Company to a Restricted Subsidiary
or by a Restricted Subsidiary to the Company or to another Restricted
Subsidiary; (ii) an issuance of Equity Interests by a Restricted Subsidiary to
the Company or to another Restricted Subsidiary; (iii) a Permitted Investment or
Restricted Payment that is permitted by the covenant described above under the
caption "Restricted Payments"; (iv) a disposition of Cash Equivalents solely for
cash or other Cash Equivalents; (v) a disposition in the ordinary course of
business of used, worn-out, obsolete, damaged or replaced equipment; (vi) the
grant of licenses to third parties in respect of intellectual property in the
ordinary course of business of the Company or any of its Restricted
Subsidiaries, as applicable; (vii) any disposition of properties or assets that
is governed by the provisions described under "Change of Control" or "Merger,
Consolidation or Sale of Assets"; and (viii) the granting or incurrence of any
Permitted Lien.
"Board Resolution" means a duly adopted resolution of the Board of
Directors of the Company in full force and effect at the time of determination
and certified as such by the Secretary or an Assistant Secretary of the Company
and delivered to the Trustee.
"Capital Lease Obligation" means, at the time any determination thereof is
to be made, the amount of the liability in respect of a capital lease that would
at such time be required to be capitalized on a balance sheet in accordance with
GAAP.
"Capital Stock" means (i) in the case of a corporation, corporate stock,
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, (iii) in the case of a partnership or limited liability
company, partnership or membership interests (whether general or limited) and
(iv) any other interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of assets of, the
issuing Person.
"Cash Equivalents" means (a) marketable obligations issued or
unconditionally guaranteed by the U.S. or issued by any of its agencies and
backed by the full faith and credit of the U.S., in each case maturing within
one year from the date of acquisition; (b) short-term investment grade domestic
and eurodollar certificates of deposit or time deposits that are fully insured
by the Federal Deposit Insurance Corporation or are issued by commercial banks
organized under the laws of the U.S. or any of its states having combined
capital, surplus and undivided profits of not less than $100,000,000 (as shown
on its most recently published statement of condition); (c) commercial paper and
similar obligations rated "P-1" by Moody's Investors Service, Inc. ("Moody's")
or "A-1" by Standard & Poor's Rating Services, a division of The McGraw-Hill
Companies, Inc. ("S&P") (d) readily marketable tax-free municipal bonds of
domestic issuers rated "A-2" or better by Moody's or "A" or better by S&P, and
maturing within one year
-49-
from the date of issuance; and (e) mutual funds or money market accounts
investing primarily in items described in clauses (a) through (d) above.
"Change of Control" means, with respect to the Company or any successor
Person permitted under the covenant "Merger, Consolidation or Sale of Assets,"
the occurrence of any of the following: (a) any "person" or "group" (as such
terms are used in Sections 13(d) and 14(d) of the Exchange Act), other than
Apollo and its Affiliates, acquires "beneficial ownership" (as determined in
accordance with Rule 13d-3 under the Exchange Act), directly or indirectly, of
more than 50% of the total outstanding shares of Voting Stock (as defined)
except to the extent that, and so long as, Apollo and its affiliates hold the
right, by voting power, contract or otherwise, to elect or designate, and do so
elect or designate, a majority of the Company's Board of Directors; (b) the
Company consolidates with or merges into any other corporation, or conveys,
transfers or leases all or substantially all of its assets to any person, or any
other corporation merges into the Company and, in the case of any such
transaction, the outstanding common stock of the Company is changed or exchanged
as a result, unless the shareholders of the Company immediately before such
transaction own, directly or indirectly, at least 51% of the outstanding shares
of Voting Stock of the corporation resulting from such transaction in
substantially the same proportion as their ownership of the Voting Stock
immediately before such transaction (except to the extent that, and so long as,
Apollo and its affiliates hold the right, by voting power or otherwise, to elect
or designate, and do so elect or designate, a majority of the Board of Directors
of the corporation resulting from such transaction); or (c) the first day on
which more than a majority of the members of the Board of Directors of the
Company are not Continuing Directors.
"Closing Date" means the date of the closing of the sale of the Notes
initially issued pursuant to the Indenture.
"Consolidated EBITDA" means, with respect to any Person for any period, the
Consolidated Net Income of such Person for such period plus, to the extent
deducted in computing such Consolidated Net Income, (i) an amount equal to any
extraordinary loss plus any net loss realized in connection with an Asset Sale,
(ii) provision for taxes based on income or profits of such Person and its
Restricted Subsidiaries for such period, (iii) Consolidated Interest Expense,
and (iv) depreciation and amortization (including amortization of goodwill and
other intangibles but excluding amortization of prepaid cash expenses that were
paid in a prior period) and other non-cash expenses (excluding any such non-cash
expense to the extent that it represents an accrual of or reserve for cash
expenses in any future period or amortization of a prepaid cash expense that was
paid in a prior period) of such Person and its Restricted Subsidiaries for such
period to the extent that such depreciation, amortization and other non-cash
expenses were deducted in computing such Consolidated Net Income, minus (v)
non-cash items increasing such Consolidated Net Income, in each case, for such
period without duplication on a consolidated basis and determined in accordance
with GAAP.
"Consolidated Interest Coverage Ratio" means with respect to any Person for
any period, the ratio of the Consolidated Resort EBITDA of such Person for such
period to the Consolidated Interest Expense of such Person and its Restricted
Subsidiaries for such period. In the event that the Company or any of its
Restricted Subsidiaries incurs, assumes, Guarantees, redeems, repays or
otherwise retires any Indebtedness (other than revolving credit borrowings)
subsequent to the commencement of the period for which the Consolidated Interest
Coverage Ratio is being calculated but prior to the date on which the event for
which the calculation of the Consolidated Interest Coverage Ratio is made (the
"Calculation Date"), then the Consolidated Interest Coverage Ratio shall be
calculated giving pro forma effect to such incurrence, assumption, Guarantee,
redemption, repayment or retirement of Indebtedness as if the same had occurred
at the beginning of the applicable four-quarter reference period. In addition,
for purposes of making the computation referred to above, (i) (a) acquisitions
that have been made by the Company or any of its Restricted Subsidiaries,
including through mergers or consolidations and including any related financing
transactions and (b) other transactions consummated by the Company or any of its
Restricted Subsidiaries with respect to which pro forma effect may be given
pursuant to Article 11 of Regulation S-X under the Securities Act, in each case
during the four-quarter reference period or subsequent to such reference period
and on or prior to the Calculation Date shall be deemed to have occurred on the
first day of the four-quarter reference period and Consolidated Resort EBITDA
for such reference period shall be calculated without giving effect to clause
(iii) of the proviso set forth in the definition of "Consolidated Net Income",
(ii) the Consolidated Resort EBITDA attributable to discontinued operations, as
deter-
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mined in accordance with GAAP, and operations or businesses disposed of prior to
the Calculation Date, shall be excluded and (iii) the Consolidated Interest
Expense attributable to discontinued operations, as determined in accordance
with GAAP, and operations or businesses disposed of prior to the Calculation
Date, shall be excluded, but only to the extent (x) that the obligations giving
rise to such Consolidated Interest Expense will not be obligations of the
referent Person or any of its Restricted Subsidiaries following the Calculation
Date, or (without duplication) (y) such Consolidated Interest Expense is less
than the Consolidated Resort EBITDA attributable to such discontinued operations
for the same period.
"Consolidated Interest Expense" means with respect to any Person for any
period the sum, without duplication, of (i) the consolidated interest expense of
such Person and its Restricted Subsidiaries for such period, whether paid or
accrued (including, without limitation, amortization of original issue discount,
non-cash interest payments, the interest component of any deferred payment
obligations, the interest component of all payments associated with Capital
Lease Obligations, commissions, discounts and other fees and charges incurred in
respect of letter of credit or bankers' acceptance financings, and net payments
(if any) pursuant to Hedging Obligations but excluding amortization of debt
issuance costs), (ii) the consolidated interest expense of such Person and its
Restricted Subsidiaries that was capitalized during such period, (iii) any
interest expense for such period on Indebtedness of another Person that is
guaranteed by such Person or one of its Restricted Subsidiaries or secured by a
Lien on assets of such Person or one of its Restricted Subsidiaries (whether or
not such Guarantee or Lien is called upon), in each case, on a consolidated
basis and in accordance with GAAP, and (iv) any Preferred Stock dividends paid
in cash by the Company or any of its Restricted Subsidiaries to a Person other
than the Company or any of its Restricted Subsidiaries, determined, in each
case, on a consolidated basis and in accordance with GAAP.
"Consolidated Net Income" means, with respect to any Person for any period,
the aggregate of the Net Income of such Person and its Restricted Subsidiaries
for such period, on a consolidated basis, determined in accordance with GAAP;
provided that (i) the net income (but not loss) of any Person that is not a
Restricted Subsidiary of such Person or that is accounted for by the equity
method of accounting shall be included only to the extent of the amount of
dividends or distributions paid in cash by such Person during such period to the
referent Person or a Restricted Subsidiary thereof, (ii) premiums paid and the
write-off of any unamortized balance of original issue discount in connection
with a redemption of, or tender offer for, the Notes or the 2009 Notes by the
Company and amortization of debt issuance costs shall be excluded and (iii) the
cumulative effect of a change in accounting principles shall be excluded.
"Consolidated Resort EBITDA" means, with respect to any Person for any
period, the Consolidated EBITDA of such Person for such period minus
consolidated real estate revenue of such Person and its Restricted Subsidiaries
for such period plus consolidated real estate operating expenses of such Person
and its Restricted Subsidiaries for such period minus any portion of such
Consolidated EBITDA attributable to Unrestricted Subsidiaries of such Person for
such period, in each case as reported on such Person's consolidated statement of
operations and determined on a consolidated basis and in accordance with GAAP.
"Continuing Directors" means, as of any date of determination, any member
of the Board of Directors of the Company who (i) was a member of such Board of
Directors on the date of the Indenture or (ii) was nominated for election or
elected to such Board of Directors with the approval of a majority of the
Continuing Directors who were members of such Board at the time of such
nomination or election.
"Credit Agreement" means that certain Third Amended and Restated Revolving
Credit and Term Loan Agreement, dated as of June 10, 2003 by and among The Vail
Corporation, the Lenders named therein, Bank of America, N.A., as Administrative
Agent, and Banc of America Securities LLC, including any related Notes,
guarantees, collateral documents, instruments and agreements executed in
connection therewith, and in each case, as amended, restated, modified, renewed,
refunded, replaced or refinanced in whole or in part from time to time.
"Default" means any event that is or with the passage of time or the giving
of notice or both would be an Event of Default.
"Disqualified Stock" means any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable at the option of the holder), or upon the happening of any event,
matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or redeemable at the option of the holder thereof, in whole or in
part, on or prior to the date that is 91 days after the date on which the Notes
ma-
-51-
ture; provided, however, that any Capital Stock that would not constitute
Disqualified Stock but for provisions thereof giving holders thereof the right
to require such Person to purchase or redeem such Capital Stock upon the
occurrence of an "asset sale" or "change of control" occurring on or prior to 91
days after the date on which the Notes mature shall not constitute Disqualified
Stock if (1) the "asset sale" or "change of control" provisions applicable to
such Capital Stock are not more favorable in any respect to the holders of such
Capital Stock than the terms applicable to the Notes and described under the
captions "Repurchase at the Option of Holders--Asset Sales" and "Repurchase at
the Option of Holders--Change of Control"; and (2) any such requirement only
becomes operative after compliance with such terms applicable to the Notes,
including the purchase of any Notes tendered pursuant thereto.
"Equity Interests" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Equity Offering" means (i) a public or private sale of Capital Stock of
the Company and (ii) the sale of other securities convertible or exchangeable
into Capital Stock (other than Disqualified Stock) of the Company; provided that
an Equity Offering shall be deemed to occur with respect to all or a portion of
such securities only upon the conversion or exchange of such securities into
Capital Stock.
"Existing Indebtedness" means Indebtedness of the Company and the Company's
Subsidiaries (other than Indebtedness under the Credit Agreement) in existence
on the date of the Indenture and Indebtedness of Affiliates of the Company in
existence on the date of the Indenture that is or will be required to be
consolidated on the Company's balance sheet in accordance with GAAP.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect in the United States from time to time.
"Guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.
"Guarantor" means (i) each of the Company's Restricted Subsidiaries that
are party to the Indenture on the date of execution and delivery of the
Indenture and (ii) each other Person that becomes a guarantor of the obligations
of the Company under the Notes and the Indenture from time to time in accordance
with the provisions of the Indenture described under the caption "Certain
Covenants--Additional Subsidiary Guarantees,", and their respective successors
and assigns; provided, however, that "Guarantor" shall not include any Person
that is released from its Guarantee of the obligations of the Company under the
Notes and the Indenture as described under "--Subsidiary Guarantees."
"Hedging Obligations" means, with respect to any Person, the obligations of
such Person under (i) currency exchange or interest rate swap, cap or collar
agreements and (ii) other agreements or arrangements designed to protect such
Person against fluctuations in currency exchange or interest rates.
"Indebtedness" means, with respect to any Person, without duplication, (i)
any indebtedness of such Person, whether or not contingent, in respect of
borrowed money or evidenced by bonds, Notes, debentures or similar instruments
or letters of credit (or reimbursement agreements in respect thereof) or
bankers' acceptances or representing Capital Lease Obligations or the balance
deferred and unpaid of the purchase price of any property (which purchase price
is due more than one year after taking title to such property) or services or
representing any Hedging Obligations, except any such balance that constitutes
an accrued expense or trade payable, if and to the extent any of the foregoing
indebtedness (other than letters of credit and Hedging Obligations) would appear
as a liability upon a balance sheet of such Person prepared in accordance with
GAAP; (ii) all indebtedness of others secured by a Lien on any asset of such
Person (whether or not such indebtedness is assumed by such Person, the amount
of such obligation, to the extent it is without recourse to such Person, being
deemed to be the lesser of the value of such property
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or assets or the amount of the obligation so secured); (iii) to the extent not
otherwise included, the Guarantee by such Person of any Indebtedness of any
other Person; provided, however, that (1) the amount outstanding at any time of
any Indebtedness issued with original issue discount is the face amount of such
Indebtedness less the remaining unamortized portion of the original issue
discount of such Indebtedness at such time as determined in conformity with
GAAP; and (2) Indebtedness shall not include any liability for federal, state,
local or other taxes; and (iv) with respect to any Restricted Subsidiary of the
Company, Preferred Stock of such Person (in an amount equal to the greater of
(x) the sum of all obligations of such Person with respect to redemption,
repayment or repurchase thereof and (y) the book value of such Preferred Stock
as reflected on the most recent financial statements of such Person).
"Investments" means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including guarantees of Indebtedness or other obligations),
advances or capital contributions (excluding commission, travel and similar
advances to officers and employees made in the ordinary course of business),
purchases or other acquisitions for consideration of Indebtedness, Equity
Interests or other securities, together with all items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP,
excluding, however, trade accounts receivable and bank deposits made in the
ordinary course of business consistent with past practice. If the Company or any
Restricted Subsidiary of the Company sells or otherwise disposes of any Equity
Interests of any direct or indirect Restricted Subsidiary of the Company such
that, after giving effect to any such sale or disposition, such Person is no
longer a Restricted Subsidiary of the Company, the Company or such Restricted
Subsidiary shall be deemed to have made an Investment on the date of any such
sale or disposition equal to the fair market value of the Equity Interests of
such Restricted Subsidiary not sold or disposed of in an amount determined as
provided in the penultimate paragraph of the covenant described above under the
caption "Restricted Payments."
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional, sale or other title retention agreement, any lease
in the nature thereof, and any option or other agreement to sell or give a
Lien).
"Make-Whole Amount" means, with respect to any note, an amount equal to the
excess, if any, of (a) the present value of the remaining principal, premium, if
any, and interest (other than accrued interest otherwise payable upon
redemption) payments that would be payable with respect to such note if such
note were redeemed on February 15, 2009, computed using a discount rate equal to
the Treasury Rate plus 50 basis points, over (b) the principal amount of such
note.
"Make-Whole Average Life" means, with respect to any date of redemption of
Notes, the number of years (calculated to the nearest one-twelfth) from such
redemption date to February 15, 2009.
"Make-Whole Price" means, with respect to any Note, the greater of (a) the
sum of the principal amount of and Make-Whole Amount with respect to such Note,
and (b) the redemption price of such note on February 15, 2009.
"Net Income" means, with respect to any Person, the net income (or loss) of
such Person, determined in accordance with GAAP and before any reduction in
respect of Preferred Stock dividends, excluding, however, (i) any gain (or
loss), together with any related provision for taxes on such gain (or loss),
realized in connection with (a) any Asset Sale (including, without limitation,
dispositions pursuant to Sale and Leaseback Transactions) or (b) the disposition
of any securities by such Person or any of its Subsidiaries or the
extinguishment of any Indebtedness of such Person or any of its Subsidiaries and
(ii) any extraordinary or nonrecurring gain (or loss), together with any related
provision for taxes on such extraordinary or nonrecurring gain (or loss).
"Net Proceeds" means the aggregate cash proceeds or Cash Equivalents
proceeds received by the Company or any of its Restricted Subsidiaries in
respect of any Asset Sale (including, without limitation, any cash received upon
the sale or other disposition of any non-cash consideration received in any
Asset Sale, but only as and when received, and any proceeds deemed to be cash or
Cash Equivalents pursuant to clause (b) of the first paragraph under the caption
"Asset Sales"), net of (i) the direct costs relating to such Asset Sale
(including, without limitation,
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legal, accounting and investment banking fees, and sales commissions) and any
relocation expenses incurred as a result thereof, (ii) taxes paid or payable as
a result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements), (iii) amounts required to be
applied to the repayment of Indebtedness secured by a Lien on the asset or
assets that were the subject of such Asset Sale, (iv) all distributions and
other payments required to be made to minority interest holders of a Restricted
Subsidiary or joint venture as a result of such Asset Sale, and (v) any reserve
for adjustment in respect of the sale price of such asset or assets established
in accordance with GAAP.
"Obligations" means any principal, interest (including post-petition
interest), penalties, fees, indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing any Indebtedness.
"Permitted Investments" means (i) any Investment in the Company or a
Restricted Subsidiary of the Company; (ii) any Investment in Cash Equivalents;
(iii) any Investment by the Company or any Restricted Subsidiary of the Company
in a Person, if as a result of such Investment (a) such Person becomes a
Restricted Subsidiary of the Company and, to the extent required under the
Indenture, a Guarantor or (b) such Person is merged, consolidated or amalgamated
with or into, or transfers or conveys substantially all of its assets to, or is
liquidated into, the Company or a Restricted Subsidiary of the Company; (iv) any
Investment made as a result of the receipt of non-cash consideration from an
Asset Sale that was made pursuant to and in compliance with the covenant
described above under the caption "Repurchase at the Option of Holders--Asset
Sales"; (v) any acquisition of assets received solely in exchange for the
issuance of Equity Interests (other than Disqualified Stock) of the Company;
(vi) any Investment in a Similar Business (including any Investment made in any
Unrestricted Subsidiaries in a Similar Business) if, after giving effect to such
Investment, the aggregate amount of all Investments made pursuant to this clause
(vi) then constituting Unrestricted Investments Outstanding does not exceed the
sum of $75 million and 10% of Total Consolidated Assets of the Company at the
time of such Investment; (vii) contributions of Real Estate Held for Sale to
Real Estate Joint Ventures; provided, in the case of any Investment made
pursuant to this clause (vii) or the preceding clause (vi), that after giving
effect to such Investment no Default or Event of Default shall have occurred and
be continuing or would occur as a consequence thereof; and (viii) Investments
received in connection with the settlement of any ordinary course obligations
owed to the Company or any of its Restricted Subsidiaries.
"Permitted Liens" means (i) Liens in favor of the Company or any of its
Restricted Subsidiaries; (ii) Liens securing Senior Debt of the Company or any
Restricted Subsidiary of the Company; (iii) Liens on property or Equity
Interests of a Person existing at the time such Person is merged into or
consolidated with the Company or any Restricted Subsidiary of the Company;
provided that such Liens were in existence prior to the contemplation of such
merger or consolidation and do not extend to any assets or Equity Interests
other than those of the Person merged into or consolidated with the Company;
(iv) Liens on property existing at the time of acquisition thereof by the
Company or any Restricted Subsidiary of the Company; provided that such Liens
were in existence prior to the contemplation of such acquisition; (v) Liens
incurred or pledges and deposits made in connection with worker's compensation,
unemployment insurance and other social security benefits, statutory
obligations, bid, surety or appeal bonds, performance bonds or other obligations
of a like nature incurred in the ordinary course of business (other than
contracts in respect of borrowed money and other Indebtedness); (vi) Liens
existing on the date of the Indenture; (vii) Liens for taxes, assessments or
governmental charges or claims that are not yet delinquent or that are being
contested in good faith by appropriate proceedings promptly instituted and
diligently concluded; provided that any reserve or other appropriate provision
as shall be required in conformity with GAAP shall have been made therefor;
(viii) Liens securing the Notes or any Guarantee thereof; (ix) Liens securing
Permitted Refinancing Indebtedness to the extent that the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded was permitted to
be secured by a Lien; provided that such Liens do not extend to any assets other
than those that secured the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; (x) Liens incurred in the ordinary course of
business of the Company or any Restricted Subsidiary of the Company with respect
to obligations that do not exceed $5 million at any one time outstanding and
that (a) are not incurred in connection with the borrowing of money or the
obtaining of advances or credit (other than trade credit in the ordinary course
of business) and (b) do not in the aggregate materially detract from the value
of the property or materially impair the use thereof in the operation of
business by the Company or such Restricted Subsidiary; (xi) Liens securing
Capital Lease Obligations; provided that such Liens do not extend to any
property or assets which are not leased property subject to such Capitalized
Lease Obligation; (xii) judgment liens not giving rise to an Event of Default so
long as such Lien is adequately bonded and any appropriate legal proceedings
that may have been duly initiated for the review of such
-54-
judgment, degree or order shall not have been finally terminated or the period
within such proceedings may be initiated shall not have expired; (xiii) Liens
securing obligations of the Company under Hedging Obligations; (xiv) purchase
money Liens securing Purchase Money Obligations; provided that the related
Indebtedness shall not be secured by any property or assets of the Company or
any Restricted Subsidiary other than the property or assets so acquired pursuant
to such Purchase Money Obligation; (xv) Liens upon specific items of inventory
or other goods and proceeds of any Person securing such Person's obligations in
respect of bankers' acceptances issued or created for the account of such Person
to facilitate the purchase, shipment or storage of such inventory or other
goods; (xvi) Liens encumbering deposits made to secure obligations arising from
statutory, regulatory, contractual, or warranty requirements of the Company or
any of its Restricted Subsidiaries, including rights of offset and set-off;
(xvii) Liens arising from filing Uniform Commercial Code financing statements
regarding leases; provided that such Liens do not extend to any property or
assets which are not leased property subject to such leases or subleases; and
(xviii) Liens created for the benefit of all of the Notes and/or any Guarantees
thereof.
"Permitted Refinancing Indebtedness" means any Indebtedness of the Company
or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness (other than Hedging Obligations and other than
Indebtedness permitted to be incurred pursuant to clause (i), clause (iv) or
clause (vii) of the second paragraph under "--Incurrence of Indebtedness and
Issuance of Preferred Stock") of the Company or any of its Restricted
Subsidiaries; provided that: (i) the principal amount (or accreted value, if
applicable) of such Permitted Refinancing Indebtedness does not exceed the
principal amount of (or accreted value, if applicable), plus premium and accrued
interest on, the Indebtedness so extended, refinanced, renewed, replaced,
defeased or refunded (plus the amount of reasonable expenses incurred in
connection therewith); (ii) such Permitted Refinancing Indebtedness has a final
maturity date equal to or later than the final maturity date of, and has a
Weighted Average Life to Maturity equal to or greater than the Weighted Average
Life to Maturity of, the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; (iii) if the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded is subordinated in right of
payment to the Notes or any Guarantee thereof, such Permitted Refinancing
Indebtedness is subordinated in right of payment to the Notes or such Guarantee
on terms at least as favorable to the Holders of Notes as those contained in the
documentation governing the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; and (iv) such Indebtedness is incurred either by
the Company or by the Restricted Subsidiary that is an obligor on the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded.
"Person" means an individual, limited or general partnership, corporation,
limited liability company, association, unincorporated organization, trust,
joint stock company, joint venture or other entity, or a government or any
agency or political subdivision thereof.
"Preferred Stock" of any Person means Capital Stock of such Person of any
class or classes (however designated) that ranks prior, as to the payment of
dividends or as to the distribution of assets upon any voluntary or involuntary
liquidation, dissolution or winding up of such Person, to shares of Capital
Stock of any other class of such Person.
"Purchase Money Obligations" of any Person means any obligations of such
Person or any of its Subsidiaries to any seller or any other person incurred or
assumed in connection with the purchase of real or personal property to be used
in the business of such person or any of its subsidiaries within 180 days of
such purchase.
"Real Estate Held for Sale" means, with respect to any Person, the real
estate of such Person and its Restricted Subsidiaries classified for financial
reporting purposes as Real Estate Held for Sale on the date of the Indenture or
thereafter acquired as Real Estate Held for Sale.
"Real Estate Joint Venture" means any Person engaged exclusively in the
acquisition, development and operation or resale of any real estate asset or
group of related real estate assets (and directly related activities).
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Subsidiary" of a Person means any Subsidiary of the referent
Person that is not an Unrestricted Subsidiary.
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"Sale and Leaseback Transaction" means an arrangement relating to property
now owned or hereafter acquired whereby the Company or a Restricted Subsidiary
transfers such property to a Person and the Company or a Restricted Subsidiary
leases it from such Person.
"Significant Subsidiary" means any Restricted Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation was in effect on
the date of the Indenture.
"Similar Business" means any business conducted by the Company or any of
its Subsidiaries on the date of the Indenture or any other recreation, leisure
and/or hospitality business including without limitation ski mountain resort
operations, or any business or activity that is reasonably similar thereto or a
reasonable extension, development or expansion thereof or is reasonably
ancillary thereto.
"Stated Maturity" means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"Subsidiary" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of at least a majority of the
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by such Person or one or more of the other Subsidiaries
of such Person (or a combination thereof) and (ii) any partnership (a) the sole
general partner or the managing general partner of which is such Person or a
Subsidiary of such Person or (b) the only general partners of which are such
Person or one or more Subsidiaries of such Person (or any combination thereof).
"Total Consolidated Assets" means, with respect to any Person as of any
date, the book value of the assets of such Person and its Restricted
Subsidiaries as shown on the most recent consolidated balance sheet of such
Person.
"Treasury Rate" means, at any time of computation, the yield to maturity at
such time (as compiled by and published in the most recent statistical release
(or any successor release) of the Federal Reserve Bank of New York which has
become publicly available at least two business days prior to the date of the
redemption notice or, if such statistical release (or successor release) is no
longer published, any generally recognized publicly available source of similar
market data) of United States Treasury securities with a constant maturity most
nearly equal to the Make-Whole Average Life; provided, however, that if the
Make-Whole Average Life is not equal to the constant maturity of the United
States Treasury security for which a weekly average yield is given, the Treasury
Rate shall be obtained by linear interpolation (calculated to the nearest
one-twelfth of a year) from the weekly average yields of United States Treasury
securities for which such yields are given, except that if the Make-Whole
Average Life is less than one year, the weekly average yield on actually traded
United States Treasury securities adjusted to a constant maturity of one year
shall be used.
"2009 Notes" means the Company's 8.75% Senior Subordinated Notes due 2009
issued under (i) the indenture dated as of May 11, 1999 between the Company and
The Bank of New York, as trustee or (ii) the indenture dated as of November 21,
2001 between the Company and the Bank of New York, as trustee.
"Unrestricted Investments Outstanding" means, at any time of determination,
in respect of all Permitted Investments made pursuant to clause (vi) of the
definition of the term "Permitted Investments," the excess, if any, of (i) the
sum of all Permitted Investments theretofore made by the Company or any
Restricted Subsidiary pursuant to clause (vi) of the definition of "Permitted
Investments" over (ii) the amount of all cash, and the fair market value of any
assets or property, distributed as dividends and distributions to the Company or
a Restricted Subsidiary of the Company (to the extent that the Company does not
elect to include the amount of such dividends and distributions in the
computation of Consolidated Net Income pursuant to the parenthetical of clause
(i) of the definition thereof at the time of determination), and all repayments
of the principal amount of loans or advances, the net cash proceeds, and the
fair market value of assets or property, received from sales or transfers, in
respect of such Investments to the
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Company or any of its Restricted Subsidiaries and any other reduction made in
cash of such Investments in such Person.
"Unrestricted Subsidiary" means Boulder/Beaver, LLC, Colter Bay
Corporation, Eagle Park Reservoir Company, Forest Ridge Holdings, Inc., Gros
Ventre Utility Company, Jackson Lake Lodge Corporation, Jenny Lake Lodge, Inc.,
Larkspur Restaurant and Bar, LLC, Mountain Thunder, Inc., RTP, LLC, RT Partners,
Inc., SSI Venture, LLC, Timber Trail, Inc., Vail Associates Investments, Inc.
and VR Holdings, Inc. and any other Subsidiary that is designated by the Board
of Directors as an Unrestricted Subsidiary pursuant to a Board Resolution, but
only to the extent that such Subsidiary is not party to any agreement, contract,
arrangement or understanding with the Company or any Restricted Subsidiary of
the Company unless the terms of any such agreement, contract, arrangement or
understanding comply with the covenant set forth under "Transactions with
Affiliates."
"Voting Stock" of any Person as of any date means classes of the Capital
Stock of such Person that is at the time entitled to vote in the election of at
least a majority of the directors, managers, trustees or other governing body of
such Person.
"Weighted Average Life to Maturity" means, when applied to any Indebtedness
at any date, the number of years obtained by dividing (i) the sum of the
products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
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Description of Certain Indebtedness
Credit Facility
In June 2003, we amended and restated our Credit Facility to provide debt
financing up to an aggregate principal amount of $425 million. The Credit
Facility, as amended, consists of (i) a $325 million revolving credit facility
and (ii) a $100 million term loan. Our subsidiary, The Vail Corporation, is the
borrower under the Credit Facility, with Bank of America, N.A. as agent and
certain other financial institutions as lenders. The proceeds of loans made
under the Credit Facility may be used to fund our working capital needs, capital
expenditures, acquisitions and other general corporate purposes, including the
issuance of letters of credit. In connection with the offering of the Notes, the
Credit Facility was amended in January 2004 to extend the maturity date of the
term loan under the Credit Facility from December 2008 to December 2010, and to
reduce the applicable interest rate margin on the term loan. In addition, the
amendment provides that the term loan may be increased on a one-time basis by up
to $60 million.
The revolving Credit Facility matures June 2007. Borrowings under the
revolving Credit Facility bear interest annually at our option at the rate of
(i) LIBOR (the London interbank offered rate for a given interest period) plus a
margin (3.60% total rate at January 31, 2004) or (ii) the agent's prime lending
rate plus a margin (5.00% total rate at January 31, 2004). The revolving Credit
Facility also includes a quarterly unused commitment fee. The unused commitment
fee is equal to a percentage determined by the Funded Debt to Adjusted EBITDA
ratio (as defined), times the daily amount by which the revolving Credit
Facility commitment exceeds the total of outstanding loans and outstanding
letters of credit. The unused amounts are accessible to the extent that the
Funded Debt to Adjusted EBITDA ratio does not exceed the maximum ratio allowed
at quarter-ends. Interest rates on the revolving Credit Facility fluctuate based
upon the ratio of our Funded Debt to Adjusted EBITDA on a trailing twelve-month
basis. The term loan matures December 2010 and bears interest at a rate of LIBOR
plus a margin (3.91% total rate at January 31, 2004). The term loan is subject
to annual amortization based upon 1% per annum of the original principal amount
of the term loan facility. We have the option to prepay the term loan at any
time without any pre-payment penalty; however, such repayments cannot
subsequently be re-borrowed under the term loan facility.
The Vail Corporation's obligations under the Credit Facility are guaranteed
by us and certain of our subsidiaries and are collateralized by a pledge of all
of the capital stock of The Vail Corporation, substantially all of its
subsidiaries and our interest in SSV.
The Credit Facility provides for affirmative and negative covenants that
restrict, among other things, our ability to incur indebtedness, dispose of
assets, make capital expenditures and make investments. In addition, the
agreement includes certain restrictive financial covenants, the most restrictive
of which are the Funded Debt to Adjusted EBITDA ratio, Senior Debt to Adjusted
EBITDA ratio, Minimum Fixed Charge Coverage ratio, Minimum Net Worth and the
Interest Coverage ratio (as defined).
Industrial Revenue Bonds
Pursuant to an indenture (the "IRB Indenture") dated as of April 1, 1998,
between Eagle County, Colorado, as issuer (the "IRB Issuer"), and U.S. Bank
National Association, as trustee (the "IRB Trustee"), $41.2 million aggregate
principal amount of industrial revenue bonds (the "IRBs") were issued for the
purpose of providing funds to The Vail Corporation d/b/a Vail Associates, Inc.
("VAI") to refinance certain existing industrial revenue bonds. Pursuant to a
financing agreement (the "IRB Agreement") dated as of April 1, 1998, among the
IRB Issuer and VAI, the IRB Issuer loaned to VAI the proceeds of the issuance of
the IRBs and VAI agreed to make payments in the aggregate amount, bearing
interest at rates and payable at times, corresponding to the principal amount
of, interest rates on and due dates under the IRBs. The obligations of VAI under
the IRB Indenture, the IRB Agreement and the IRBs are secured by certain
multi-party agreements between VAI, the IRB Trustee and the U.S. Forest Service
(the "Permit Agreements") relating to the Vail Mountain and Beaver Creek
Mountain Forest Service Permits (the "Permits"). The Permit Agreements provide
that the U.S. Forest Service will cooperate with the IRB Trustee in obtaining a
new holder of the Permits (acceptable to the U.S. Forest Service in its sole
discretion) in the event of a default by VAI with respect to its obligations
under the IRBs. However, the Permit Agreements expressly provide that no
security interest is created in or collateral assignment made with respect to
the Permits.
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The IRBs mature, subject to prior redemption, on August 1, 2019. The IRBs
bear interest at the rate of 6.95% per annum, with interest payable
semi-annually on February 1 and August 1. The IRBs are subject to redemption at
the option of VAI, at any time and from time to time on or after August 1, 2008,
and are subject to mandatory redemption if interest payments on the IRBs lose
their tax exempt status. Furthermore, in the event that VAI or one of its
affiliates incurs additional indebtedness with (1) senior or superior rights to
the Permits or (2) equivalent rights with respect to the Permits above an
aggregate principal amount of $250,000,000 (including the unpaid principal
amount of the IRBs) the IRBs will bear an interest rate of 7.45% per annum or,
under certain limited circumstances, may be subject to mandatory redemption.
We also have indebtedness in connection with $19.0 million of outstanding
IRBs which we assumed in connection with our acquisition of Keystone and
Breckenridge. These IRBs consist of two series of refunding bonds which were
originally issued to finance the cost of sports and recreational facilities at
Keystone. The Series 1990 Sports Facilities Refunding Revenue Bonds have an
aggregate outstanding principal amount of $19.0 million. The principal matures
in installments in 2006 and 2008. These bonds bear interest at a rate of 7.75%
for bonds maturing in 2006 and 7.875% for bonds maturing in 2008. The Series
1991 Sports Facilities Refunding Revenue Bonds have an aggregate outstanding
principal amount of $1.5 million maturing in 2010 and bear interest at 7.375%.
SSI Venture Credit Facility
SSI Venture LLC ("SSV"), a retail/rental joint venture in which we have a
51.9% ownership interest, has a credit facility ("SSV Facility") which was
amended and restated in May 2003. The SSV Facility is a three-year credit
facility which provides for debt financing up to an aggregate principal amount
of $32.0 million. The SSV Facility, as amended, consists of (i) a $20.0 million
revolving credit facility, (ii) an $8.0 million term loan A and (iii) a $4.0
million term loan B. Keybank N.A. is agent with certain other financial
institutions as lenders. SSV's obligations under the SSV Facility are
collateralized by substantially all of SSV's assets. The proceeds of the loans
made under the SSV Facility may be used to fund SSV's working capital needs,
capital expenditures, acquisitions and other general corporate purposes,
including the issuance of letters of credit.
Borrowings bear interest annually at SSV's option at the rate of (i) LIBOR
plus a margin or (ii) the agent's prime lending rate plus a margin. Interest
rates on the borrowings fluctuate based upon the Consolidated Leverage ratio (as
defined). The revolving Credit Facility matures May 2006. The revolving Credit
Facility also includes a quarterly unused commitment fee. The term loan A
matures May 2006. SSV must make quarterly principal payments on the term loan A
in the amount of $285,715. SSV has the option to prepay the term loan A at any
time; however, such repayments cannot subsequently be re-borrowed under the term
loan A facility. The term loan B matures May 2006. SSV has the option to prepay
the term loan B at any time; however, such repayments cannot subsequently be
re-borrowed under the term loan B facility. The term loan B is backed by a $4.2
million letter of credit issued against our Credit Facility. The SSV Facility
provides for negative covenants that restrict, among other things, SSV's ability
to incur indebtedness, dispose of assets, make capital expenditures and make
investments. In addition, the SSV Facility includes certain restrictive
financial covenants, including the Consolidated Leverage ratio, Minimum Fixed
Charge Coverage ratio and Minimum Net Worth (as defined).
PLAN OF DISTRIBUTION
Each broker-dealer that receives exchange notes for its own account
pursuant to the exchange offer must acknowledge that it will deliver a
prospectus in connection with any resale of such exchange notes. This
prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of exchange notes received in
exchange for outstanding notes where such outstanding notes were acquired by
such broker-dealer as a result of market-making activities or other trading
activities. We have agreed that for a period of 30 days after effectiveness of
the exchange offer registration statement, we will make this prospectus, as
amended or supplemented, available to any broker-dealer for use in connection
with any such resale.
We will not receive any proceeds from any sale of exchange notes by
broker-dealers. Exchange notes received by broker-dealers for their own account
pursuant to the exchange offer may be sold from time to time in one or more
transactions in the over-the-counter market, in negotiated transactions, through
the writing of options on the exchange notes or a combination of such methods of
resale, at
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market prices prevailing at the time of resale, at prices related to such
prevailing market prices or at negotiated prices. Any such resale may be made
directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
broker-dealer and/or the purchasers of any such exchange notes. Any
broker-dealer that resells exchange notes that were received by it for its own
account pursuant to the exchange offer and any broker or dealer that
participates in a distribution of such exchange notes may be deemed to be an
"underwriter" within the meaning of the Securities Act and any profit of any
such resale of exchange notes and any commissions or concessions received by any
such persons may be deemed to be underwriting compensation under the Securities
Act. The letter of transmittal states that, by acknowledging that it will
deliver and by delivering a prospectus, a broker-dealer will not be deemed to
admit that it is an "underwriter" within the meaning of the Securities Act. By
acceptance of the exchange offer, each broker-dealer that receives exchange
notes pursuant to the exchange offer hereby agrees to notify us prior to using
this prospectus in connection with the sale or transfer of exchange notes, and
acknowledges and agrees that, upon receipt of notice from us of the happening of
any event which makes any statement in this prospectus untrue in any material
respect or which requires the making of any changes in this prospectus in order
to make the statements herein not misleading (which notice we agree to deliver
promptly to such broker-dealer), such broker-dealer will suspend use of this
prospectus until we have amended or supplemented the prospectus to correct such
misstatement or omission and have furnished copies of the amended or
supplemented prospectus to such broker-dealer.
For a period of 30 days after effectiveness of the exchange offer
registration statement, we will promptly upon request send additional copies of
this prospectus and any amendment or supplement thereto to any broker-dealer
that requests such documents in the letter of transmittal. We have agreed to pay
all expenses incident to the exchange offer (including the expenses of any one
special counsel for the Holders of the notes) other than commissions or
concessions of any brokers or dealers and will indemnify the Holders of the
notes participating in the exchange offer (including any broker-dealers) against
certain liabilities, including liabilities under the Securities Act.
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CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
General
The following is a discussion of certain U.S. federal income tax
consequences associated with the exchange of outstanding notes for exchange
notes and the beneficial ownership and disposition of the exchange notes. For
purposes of this discussion, a "U.S. Holder" is a beneficial owner of a note
that is for U.S. federal income tax purposes an individual who is a citizen or
resident of the United States, a corporation that is organized in or under the
laws of the United States or any state thereof, an estate the income of which is
includable in gross income for U.S. tax purposes regardless of its source or a
trust (1) the administration of which is subject to the primary supervision of a
United States court and as to which one or more United States persons have the
authority to control all substantial decisions of the trust or (2) which has
made a valid election to be treated as a U.S. person. A "Non-U.S. Holder" is a
beneficial owner of a note that for U.S. federal income tax purposes is a
non-resident alien or a corporation, estate or trust that is not a U.S. Holder.
This summary applies only to holders who hold the notes and the exchange notes
received therefor as capital assets within the meaning of Section 1221 of the
Internal Revenue Code of 1986, as amended (the "Code"). It does not discuss all
of the tax consequences that may be relevant to a holder in light of its
particular circumstances or to holders subject to special rules, such as
tax-exempt organizations, dealers in securities or foreign currencies, financial
institutions, partnerships or other pass-through entities, life insurance
companies, or regulated investment companies, expatriates, holders subject to
the alternative minimum tax, holders deemed to sell the notes under the
constructive sale provisions of the Code, or to holders whose functional
currency is not the United States dollar or who hold the exchange notes as part
of a synthetic security, conversion transaction, or certain "straddle" or
hedging transactions.
The U.S. federal income tax considerations set forth below are based upon
the Code and regulations, rulings and judicial decisions thereunder as of the
date hereof, and such authorities may be repealed, revoked or modified, possibly
with retroactive effect, so as to result in U.S. federal income tax consequences
different from those presented below.
THE U.S. FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE IS INTENDED FOR GENERAL
INFORMATION ONLY AND MAY NOT BE APPLICABLE TO A PARTICULAR HOLDER'S SITUATION.
PERSONS CONSIDERING EXCHANGING OUTSTANDING NOTES FOR EXCHANGE NOTES SHOULD
CONSULT THEIR OWN TAX ADVISORS REGARDING THE PARTICULAR TAX CONSEQUENCES OF THE
EXCHANGE AND OF OWNERSHIP AND DISPOSITION OF THE EXCHANGE NOTES, INCLUDING THE
TAX CONSEQUENCES UNDER STATE, LOCAL OR FOREIGN LAWS AND OTHER FEDERAL TAX LAWS
(INCLUDING ESTATE AND GIFT TAX LAWS) AND THE POSSIBLE EFFECTS OF CHANGES
(POSSIBLY INCLUDING RETROACTIVE CHANGES) IN U.S. FEDERAL INCOME AND OTHER
FEDERAL TAX LAWS.
Exchange of Notes
The exchange of outstanding notes for exchange notes will not be a taxable
event for U.S. federal income tax purposes. A holder will not recognize any
taxable gain or loss as a result of exchanging outstanding notes for exchange
notes, and the holder will have the same tax basis and holding period in the
exchange notes as he had in the outstanding notes immediately before exchange.
Ownership and Disposition of Exchange Notes
U.S. Holders
Stated Interest. Stated interest on an exchange note will be taxable to a
U.S. Holder as ordinary interest income in accordance with the U.S. Holder's
method of accounting for U.S. federal income tax purposes.
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Market Discount. Under the market discount rules of the Code, a U.S. Holder
who purchases an exchange note at a market discount will generally be required
to treat any gain recognized on the sale, exchange, retirement or other taxable
disposition of the exchange note as ordinary income to the extent of the accrued
market discount during the U.S. Holder's holding period that has not been
previously included in income. Market discount is generally defined as the
amount by which a U.S. Holder's purchase price for an exchange note is less than
the exchange note's stated redemption price at maturity (generally, the exchange
note's principal amount) of the exchange note on the date of purchase, subject
to a statutory de minimis exception. In general, market discount accrues on a
ratable basis over the remaining term of the exchange note unless a U.S. Holder
makes an irrevocable election to accrue market discount on a constant yield to
maturity basis.
A U.S. Holder who acquires an exchange note at a market discount may be
required to defer a portion of any interest expense that otherwise may be
deductible on any indebtedness incurred or continued to purchase or carry such
exchange note until the U.S. Holder disposes of the exchange note in a taxable
transaction. A U.S. Holder who has elected under applicable Code provisions to
include market discount in income annually as such discount accrues will not,
however, be required to treat any gain recognized as ordinary income or to defer
any deductions for interest expense under these rules. This election to include
market discount in income currently, once made, applies to all market discount
obligations acquired on or after the first day of the taxable year to which the
election applies and may not be revoked without the consent of the Internal
Revenue Service (the "IRS").
Holders should consult their tax advisors as to the portion of any gain
that would be taxable as ordinary income under the market discount rules and any
other consequences of the market discount rules that may apply to them in
particular.
Amortizable Bond Premium. A U.S. Holder who purchases an exchange note for
an amount in excess of its principal amount will be considered to have purchased
the exchange note at a premium. A U.S. Holder may elect to amortize the premium
over the remaining term of the exchange note on a constant yield method. The
amount amortized in any year will be treated as a reduction of the U.S. Holder's
interest income from the exchange note. A U.S. Holder who elects to amortize the
premium on an exchange note must reduce its tax basis in the exchange note by
the amount of the premium amortized in any year. An election to amortize bond
premium applies to all taxable debt obligations then owned and thereafter
acquired by the U.S. Holder and may be revoked only with the consent of the IRS.
Bond premium on an exchange note held by a U.S. Holder who does not make such an
election will decrease the capital gain or increase the capital loss otherwise
recognized on the disposition of the exchange note.
Sale, Exchange or Redemption of an Exchange Note. A U.S. Holder will
recognize gain or loss, if any, on the sale, redemption or other taxable
disposition of an exchange note in an amount equal to the difference, if any,
between the U.S. Holder's adjusted tax basis in the exchange note and the amount
received therefor (other than amounts attributable to accrued and unpaid
interest on the exchange notes, which will be taxable as ordinary income unless
previously included in income). A U.S. Holder's adjusted tax basis in an
exchange note generally will equal the cost of the exchange note to the U.S.
Holder. Subject to the market discount rules summarized above, such gain or loss
generally will be long-term capital gain or loss if the exchange note was held
for more than one year as of the date of disposition. Long-term capital gains
recognized by an individual or non-corporate U.S. Holder are generally subject
to a reduced U.S. federal income tax rate. Capital losses are subject to limits
on deductibility.
Backup Withholding and Information Reporting. A U.S. Holder of an exchange
note may be subject to information reporting and possible backup withholding. If
applicable, backup withholding would apply at a rate of 28% (31% after December
31, 2010) with respect to interest on, or the proceeds of a sale, exchange,
redemption, retirement, or other disposition of, such exchange note, unless such
U.S. Holder (i) is a corporation or comes within certain other exempt categories
and, when required, demonstrates this fact, or (ii) provides a taxpayer
identification number, certifies as to no loss of exemption from backup
withholding, and otherwise complies with applicable backup withholding rules.
Any amount withheld under the backup withholding rules from a payment to a
U.S. Holder generally will be allowed as a refund or a credit against such U.S.
Holder's U.S. federal income tax liability, provided that the required
procedures are followed.
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Non-U.S. Holders
Payment of Interest. The payment of interest on an exchange note will
generally not be subject to U.S. federal income tax (or to withholding of tax),
if (1) the interest is not effectively connected with the conduct of a trade or
business within the United States, (2) the Non-U.S. Holder does not actually or
constructively own 10% or more of the total combined voting power of all classes
of our stock entitled to vote, (3) the Non-U.S. Holder is not a controlled
foreign corporation that is related to us actually or constructively through
stock ownership and (4) either (i) the beneficial owner of the exchange note
certifies to us or our agent, under penalties of perjury, that it is not a U.S.
Holder and provides its name and address on IRS Form W-8 BEN (or on a suitable
substitute form), (ii) a securities clearing organization, bank or other
financial institution that holds customers' securities in the ordinary course of
its trade or business (a "financial institution") and holds the exchange note
certifies under penalties of perjury that such a Form W-8 BEN (or suitable
substitute form) has been received from the beneficial owner by it and furnishes
the payer with a copy thereof or (iii) the beneficial owner holds its exchange
notes directly through a "qualified intermediary" and certain conditions are
satisfied.
If the payments of interest are effectively connected with the conduct by a
Non-U.S. Holder of a trade or business within the U.S., such Non-U.S. Holder
will not be subject to U.S. federal withholding tax on such interest payments
provided that the Non-U.S. Holder satisfies certain documentation requirements.
However, such Non-U.S. Holder will generally be subject to the rules described
above for a U.S. Holder (subject to any modification provided under an
applicable income tax treaty). Such Non-U.S. Holder may also be subject to the
"branch profits tax" if such holder is a corporation.
If the payments of interest are not effectively connected with the conduct
by a Non-U.S. Holder of a trade or business within the U.S., but the
requirements described above under clauses (2), (3) or (4) are not satisfied
with respect to such Non-U.S. Holder, a 30% withholding tax (or a reduced rate
under an applicable income tax treaty) will apply to interest paid on the
exchange notes to such Non-U.S. Holder.
Sale, Exchange or Redemption of an Exchange Note. A Non-U.S. Holder will
generally not be subject to U.S. federal income or withholding tax on any gain
realized in connection with the sale, exchange, retirement, or other disposition
of an exchange note, unless (i) the gain is effectively connected with a trade
or business of the Non-U.S. Holder in the United States (and, if a tax treaty
applies, the gain is attributable to a permanent establishment or a fixed base
in the United States); or (ii) in the case of a Non-U.S. Holder who is an
individual and holds the exchange note as a capital asset, such holder is
present in the United States for 183 or more days in the taxable year of the
disposition and certain other conditions are met.
If the gain is effectively connected with the conduct by a Non-U.S. Holder
of a trade or business within the U.S., such Non-U.S. Holder generally will be
subject to U.S. federal income tax with respect to such gain in the same manner
as U.S. Holders, as described above, unless an applicable income tax treaty
provides otherwise. In addition, Non-U.S. Holders that are corporations could be
subject to a branch profits tax with respect to such gain at a rate of 30% (or
at a reduced rate under an applicable income tax treaty). If the foregoing 183
days rule applies, a Non-U.S. Holder generally will be subject to U.S. federal
income tax at a rate of 30% (or at a reduced rate under an applicable income tax
treaty) on the net gain derived from the sale.
Backup Withholding and Information Reporting. We must report annually to
the IRS and to each Non-U.S. Holder the amount of interest paid on an exchange
note, regardless of whether withholding was required, and any tax withheld with
respect to the interest. Under the provisions of an income tax treaty and other
applicable agreements, copies of these information returns may be made available
to the tax authorities of the country in which the Non-U.S. Holder resides.
Interest payments on the exchange notes made by us or any paying agent of
ours to Non-U.S. Holders generally will not be subject to "backup withholding"
if the certification described under "--Ownership and Disposition of Exchange
Notes--Non-U.S. Holders--Payment of Interest" above is received or an exemption
is otherwise established.
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Payment of proceeds from a sale or redemption of an exchange note effected
at a U.S. office of a broker is subject to information reporting and backup
withholding unless the Non-U.S. Holder certifies as to its non-U.S. status or
otherwise establishes an exemption from information reporting and backup
withholding. Payment of the proceeds of the sale or redemption of an exchange
note effected at a foreign office of a broker generally should not be subject to
information reporting or backup withholding, except that, if the broker is a
U.S. person or a foreign person related to a U.S. person, information reporting
should apply to such payment unless the broker has documentary evidence in its
records that the beneficial owner is not a U.S. Holder and certain other
conditions are met or the beneficial owner otherwise establishes an exemption.
Any amounts withheld under the backup withholding rules from a payment to a
Non-U.S. Holder generally will be allowed as a refund or a credit against such
Non-U.S. Holder's U.S. federal income tax liability, provided that the required
procedures are followed.
LEGAL MATTERS
Certain legal matters with respect to the exchange notes and the guarantees
will be passed upon for us by Cahill Gordon & Reindel LLP, New York, New York
and by Martha D. Rehm, Esq., General Counsel to the Company.
EXPERTS
The consolidated financial statements and the related financial statement
schedule incorporated in this prospectus by reference to the Annual Report on
Form 10-K for the year ended July 31, 2003 have been so incorporated in reliance
on the report of PricewaterhouseCoopers LLP, independent accountants, given on
the authority of said firm as experts in auditing and accounting.
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================================================================================
$390,000,000
VAIL RESORTS, INC.
Exchange Offer for $390,000,000 Aggregate Principal Amount of 6 3/4%
Senior Subordinated Notes due 2014
______________
PROSPECTUS
______________
, 2004
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We have not authorized any dealer, salesperson or other person to give any
information or represent anything not contained in this prospectus. You must not
rely on unauthorized information. This prospectus is not an offer to sell or buy
any securities in any jurisdiction where it is unlawful. The information in this
prospectus is current as of [ ], 2004.
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================================================================================
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the "DGCL") makes
provision for the indemnification of officers and directors of corporations in
terms sufficiently broad to indemnify the officers and directors of the
registrant under certain circumstances for liabilities (including reimbursement
of expenses incurred) arising under the Securities Act.
The Company's Amended and Restated Certificate of Incorporation (the
"Certificate") provides that to the fullest extent permitted by Delaware Law or
another applicable law, a director of the Company shall not be liable to the
Company or its stockholders for monetary damages for breach of fiduciary duty as
a director. Under current Delaware Law, liability of a director may not be
limited (i) for any breach of the director's duty of loyalty to the Company or
its stockholders, (ii) for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law, (iii) in respect of
certain unlawful dividend payments or stock redemptions or purchases and (iv)
for any transaction from which the director derives an improper personal
benefit. The effect of the provision of the Certificate is to eliminate the
rights of the Company and its stockholders (through stockholders' derivative
suits on behalf of the Company) to recover monetary damages against a director
for breach of the fiduciary duty of care as a director (including breaches
resulting from negligent or grossly negligent behavior) except in the situations
described in clauses (i) through (iv) above. This provision does not limit or
eliminate the rights of the Company or any stockholder to seek non-monetary
relief such as an injunction or rescission in the event of a breach of a
director's duty of care. In addition, the Company's Restated Bylaws (the
"Bylaws") provide that the Company shall indemnify its directors, officers and
employees to the fullest extent permitted by applicable law.
The Bylaws provide that the Company may indemnify any person who is or was
involved in any manner or is threatened to be made so involved in any
threatened, pending or completed investigation, claim, action, suit or
proceeding, whether civil, criminal, administrative or investigative (including
any action, suit or proceeding by or in the right of the registrant to procure a
judgment in its favor), by reason of the fact that he is or was or had agreed to
become a director, officer or employee of the registrant or is or was or had
agreed to become at the request of the board or an officer of the registrant a
director, officer or employee of another corporation, partnership, joint
venture, trust or other entity against all expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such proceeding.
Item 21. Exhibits
Exhibit No. Description
4.1(a) Purchase Agreement, dated as of January 15, 2004 among Vail Resorts,
Inc., the guarantors named on Schedule I thereto, Banc of America
Securities LLC, Deutsche Banc Securities, Inc., Bear, Stearns & Co. Inc.,
Lehman Brothers Inc., Piper Jaffray & Co. and Wells Fargo Securities LLC
(Incorporated by reference to Exhibit 4.2(c) on Form 10-Q of Vail Resorts,
Inc. for the quarter ended January 31, 2004).
4.1(b) Supplemental Purchase Agreement, dated as of January 22, 2004 among Vail
Resorts, Inc., the guarantors named thereto, Banc of America Securities
LLC, Deutsche Banc Securities, Inc., Bear, Stearns & Co. Inc., Lehman
Brothers Inc., Piper Jaffray & Co. and Wells Fargo Securities LLC
(Incorporated by reference to Exhibit 4.2(d) on Form 10-Q of Vail Resorts,
Inc. for the quarter ended January 31, 2004).
4.2 Indenture, dated as of January 29, 2004 among Vail Resorts, Inc., the
guarantors named therein and The Bank of New York, as trustee (Incorporated
by reference to Exhibit 4.1 on Form 8-K of Vail Resorts, Inc. filed
February 2, 2004).
II-1
4.3 Form of Global Note (included in Exhibit 4.2).
4.4 Registration Rights Agreement dated as of January 29, 2004 among Vail
Resorts, Inc., the guarantors signatory thereto, Banc of America Securities
LLC, Deutsche Banc Securities, Inc., Bear, Stearns & Co. Inc., Lehman
Brothers Inc., Piper Jaffray & Co. and Wells Fargo Securities LLC
(Incorporated by reference to Exhibit 4.5(c) on Form 10-Q of Vail Resorts,
Inc. for the quarter ended January 31, 2004).
5.1* Opinion of Cahill Gordon & Reindel LLP as to the legality of the Exchange
Notes and the Guarantees of certain of the Guarantors.
5.2* Opinion of General Counsel to the Company as to the legality of the
Exchange Notes and the Guarantees of certain of the Guarantors.
12.1* Computation of Ratio of Earnings to Fixed Charges.
23.1(a)* Consent of PricewaterhouseCoopers LLP, independent accountants.
23.1(b)* Consent of PricewaterhouseCoopers LLP, independent accountants.
23.2* Consent of Cahill Gordon & Reindel LLP (included in Exhibit 5.1).
23.3* Consent of General Counsel to the Company (included in Exhibit 5.2).
24.1* Power of Attorney for the Company.
24.2* Powers of Attorney for the Guarantors (set forth on the signature pages to
this Registration Statement).
25.1* Statement regarding eligibility of Trustee on Form T-1.
99.1* Form of Letter of Transmittal.
99.2* Form of Notice of Guaranteed Delivery.
_________________
* Filed Herewith
Item 22. Undertakings
The undersigned Registrants hereby undertake:
(a) For purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to section 13(a) or
section 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(b) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director,
II-2
officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
(c) To respond to requests for information that is incorporated by
reference into the prospectus pursuant to Items 4, 10(b), 11, or 13 of this
Form, within one business day of receipt of such request, and to send the
incorporated documents by first class mail or other equally prompt means. This
includes information contained in documents filed subsequent to the effective
date of the registration statement through the date of responding to the
request.
(d) To supply by means of a post-effective amendment all information
concerning a transaction, and the company being acquired involved therein, that
was not the subject of and included in the registration statement when it became
effective.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 25th day of March, 2004.
VAIL RESORTS, INC.
By: /s/ JEFFREY W. JONES
-------------------------------------
Name: Jeffrey W. Jones
Title: Chief Financial Officer and
Senior Vice President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/S/ADAM M. ARON Chairman of the Board, Chief Executive Officer March 25, 2004
- ---------------------------------- and Director (Principal Executive Officer)
Adam M. Aron
/S/JEFFREY W. JONES Senior Vice President and Chief Financial March 25, 2004
- ---------------------------------- Officer (Principal Financial Officer)
Jeffrey W. Jones
/S/FRANK BIONDI* Director March 25, 2004
- ----------------------------------
Frank Biondi
/S/JOHN J. HANNAN* Director March 25, 2004
- ----------------------------------
John J. Hannan
/S/JOHN R. HAUGE* Director March 25, 2004
- ----------------------------------
John R. Hauge
/S/ROLAND A. HERNANDEZ* Director March 25, 2004
- ----------------------------------
Roland A. Hernandez
/S/ROBERT A. KATZ* Director March 25, 2004
- ----------------------------------
Robert A. Katz
/S/THOMAS H. LEE* Director March 25, 2004
- ----------------------------------
Thomas H. Lee
/S/WILLIAM L. MACK* Director March 25, 2004
- ----------------------------------
William L. Mack
/S/JOE R. MICHELETTO* Director March 25, 2004
- ----------------------------------
Joe R. Micheletto
II-4
Signature Title Date
/S/JOHN F. SORTE* Director March 25, 2004
- ----------------------------------
John F. Sorte
/S/WILLIAM P. STIRITZ* Director March 25, 2004
- ----------------------------------
William P. Stiritz
/S/JAMES S. TISCH* Director March 25, 2004
- ----------------------------------
James S. Tisch
/S/JEFFREY W. JONES Attorney-in-Fact March 25, 2004
- ----------------------------------
Jeffrey W. Jones
- ----------------------------------
* By Attorney-in-Fact
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 25th day of March, 2004.
BEAVER CREEK ASSOCIATES, INC.
By: /s/ JEFFREY W. JONES
------------------------------------------
Name: Jeffrey W. Jones
Title: Senior Vice President and Principal
Accounting Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Jeffrey W. Jones and Martha Dugan Rehm and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Adam M. Aron Chairman of the Board and Director March 25, 2004
- ---------------------------------------
Adam M. Aron
/s/ Jeffrey W. Jones Senior Vice President, Principal Accounting March 25, 2004
- --------------------------------------- Officer and Director
Jeffrey W. Jones
/s/ Martha Dugan Rehm Senior Vice President and Director March 25, 2004
- ---------------------------------------
Martha Dugan Rehm
II-6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 25th day of March, 2004.
BEAVER CREEK CONSULTANTS, INC.
By: /s/ JEFFREY W. JONES
--------------------------------------------
Name: Jeffrey W. Jones
Title: Senior Vice President and Principal
Accounting Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Jeffrey W. Jones and Martha Dugan Rehm and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Adam M. Aron Chairman of the Board and Director March 25, 2004
- ---------------------------------------
Adam M. Aron
/s/ Jeffrey W. Jones Senior Vice President, Principal Accounting March 25, 2004
- --------------------------------------- Officer and Director
Jeffrey W. Jones
/s/ Martha Dugan Rehm Senior Vice President and Director March 25, 2004
- ---------------------------------------
Martha Dugan Rehm
II-7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 25th day of March, 2004.
BEAVER CREEK FOOD SERVICES, INC.
By: /s/ JEFFREY W. JONES
--------------------------------------------
Name: Jeffrey W. Jones
Title: Senior Vice President and Principal
Accounting Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Jeffrey W. Jones and Martha Dugan Rehm and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ John McD. Garnsey Chairman of the Board, President and Director March 25, 2004
- ---------------------------------------
John McD. Garnsey
/s/ Jeffrey W. Jones Senior Vice President, Principal Accounting March 25, 2004
- --------------------------------------- Officer and Director
Jeffrey W. Jones
/s/ Martha Dugan Rehm Senior Vice President and Director March 25, 2004
- ---------------------------------------
Martha Dugan Rehm
II-8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 25th day of March, 2004.
BRECKENRIDGE RESORT PROPERTIES, INC.
By: /s/ JEFFREY W. JONES
---------------------------------------------
Name: Jeffrey W. Jones
Title: Senior Vice President and Principal
Accounting Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Jeffrey W. Jones and Martha Dugan Rehm and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ James P. Thompson President and Director March 25, 2004
- ---------------------------------------
James P. Thompson
/s/ Eric Thompson Director March 25, 2004
- ---------------------------------------
Eric Thompson
/s/ Jeffrey W. Jones Senior Vice President, Principal Accounting March 25, 2004
- --------------------------------------- Officer and Director
Jeffrey W. Jones
II-9
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 25th day of March, 2004.
COMPLETE TELECOMMUNICATIONS, INC.
By: /s/ Jeffrey W. Jones
----------------------------------------
Name: Jeffrey W. Jones
Title: Principal Accounting Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Jeffrey W. Jones and Martha Dugan Rehm and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ James P. Donohue Chairman of the Board, Senior Vice President March 25, 2004
- --------------------------------------- and Director
James P. Donohue
/s/ Jeffrey W. Jones Principal Accounting Officer March 25, 2004
- ---------------------------------------
Jeffrey W. Jones
/s/ R. Keith Gwinn President and Director March 25, 2004
- ---------------------------------------
R. Keith Gwinn
/s/ Nanci N. Northway Vice President and Director March 25, 2004
- ---------------------------------------
Nanci N. Northway
/s/ John Uhley Director March 25, 2004
- ---------------------------------------
John Uhley
II-10
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 25th day of March, 2004.
GILLETT BROADCASTING, INC.
By: /s/ Jeffrey W. Jones
--------------------------------------------------
Name: Jeffrey W. Jones
Title: Chief Financial Officer and Senior Vice
President
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Jeffrey W. Jones and Martha Dugan Rehm and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Adam M. Aron Chairman of the Board, President and Director March 25, 2004
- ---------------------------------------
Adam M. Aron
/s/ Jeffrey W. Jones Chief Financial Officer, Senior Vice March 25, 2004
- --------------------------------------- President and Director
Jeffrey W. Jones
/s/ Martha Dugan Rehm Senior Vice President and Director March 25, 2004
- ---------------------------------------
Martha Dugan Rehm
II-11
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 25th day of March, 2004.
GRAND TETON LODGE COMPANY
By: /s/ Jeffrey W. Jones
-------------------------------------------------
Name: Jeffrey W. Jones
Title: Senior Vice President and Principal
Accounting Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Jeffrey W. Jones and Martha Dugan Rehm and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Adam M. Aron Chairman of the Board and Director March 25, 2004
- ---------------------------------------
Adam M. Aron
/s/ Jeffrey W. Jones Senior Vice President, Principal Accounting March 25, 2004
- --------------------------------------- Officer and Director
Jeffrey W. Jones
/s/ Martha Dugan Rehm Senior Vice President and Director March 25, 2004
- ---------------------------------------
Martha Dugan Rehm
II-12
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 25th day of March, 2004.
HEAVENLY VALLEY, LIMITED PARTNERSHIP
BY: VR HEAVENLY I, INC., GENERAL PARTNER
By: /s/ Jeffrey W. Jones
----------------------------------------------
Name: Jeffrey W. Jones
Title: Senior Vice President and Principal
Accounting Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Jeffrey W. Jones and Martha Dugan Rehm and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Jeffrey W. Jones Senior Vice President, Principal Accounting March 25, 2004
- --------------------------------------- Officer and Director
Jeffrey W. Jones
/s/ Martha Dugan Rehm Senior Vice President and Director March 25, 2004
- ---------------------------------------
Martha Dugan Rehm
II-13
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 25th day of March, 2004.
JACKSON HOLE GOLF AND TENNIS CLUB, INC.
By: /s/ Jeffrey W. Jones
-----------------------------------------------
Name: Jeffrey W. Jones
Title: Senior Vice President and Principal
Accounting Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Jeffrey W. Jones and Martha Dugan Rehm and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Adam M. Aron Chairman of the Board and Director March 25, 2004
- ---------------------------------------
Adam M. Aron
/s/ Jeffrey W. Jones Senior Vice President, Principal Accounting March 25, 2004
- --------------------------------------- Officer and Director
Jeffrey W. Jones
/s/ Martha Dugan Rehm Senior Vice President and Director March 25, 2004
- ---------------------------------------
Martha Dugan Rehm
II-14
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 25th day of March, 2004.
JHL&S, LLC.
By: /s/ Jeffrey W. Jones
---------------------------------------------
Name: Jeffrey W. Jones
Title: Chief Financial Officer and Chief
Accounting Officer for SEC purposes
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Jeffrey W. Jones and Martha Dugan Rehm and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Edward E. Mace Manager March 25, 2004
- ---------------------------------------
Edward E. Mace
/s/ Clayton James Manager March 24, 2004
- ---------------------------------------
Clayton James
/s/ Anton Piringer Manager March 23, 2004
- ---------------------------------------
Anton Piringer
/s/ Joseph Byron Manager March 22, 2004
- ---------------------------------------
Joseph Byron
/s/ Jerry Johnson Manager March 25, 2004
- ---------------------------------------
Jerry Johnson
Chief Financial Officer and Chief Accounting March 25, 2004
/s/ Jeffrey W. Jones Officer for SEC purposes
- ---------------------------------------
Jeffrey W. Jones
Senior Vice President for SEC purposes March 25, 2004
/s/ Martha Dugan Rehm
- ---------------------------------------
Martha Dugan Rehm
II-15
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 25th day of March, 2004.
KEYSTONE CONFERENCE SERVICES, INC.
By: /s/ Jeffrey W. Jones
-----------------------------------------------
Name: Jeffrey W. Jones
Title: Senior Vice President and Principal
Accounting Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Jeffrey W. Jones and Martha Dugan Rehm and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Adam M. Aron Chairman of the Board and Director March 25, 2004
- ---------------------------------------
Adam M. Aron
/s/ Jeffrey W. Jones Senior Vice President, Principal Accounting March 25, 2004
- --------------------------------------- Officer and Director
Jeffrey W. Jones
/s/ Martha Dugan Rehm Senior Vice President and Director March 25, 2004
- ---------------------------------------
Martha Dugan Rehm
II-16
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 25th day of March, 2004.
KEYSTONE DEVELOPMENT SALES, INC.
By: /s/ Jeffrey W. Jones
----------------------------------------------
Name: Jeffrey W. Jones
Title: Senior Vice President and Principal
Accounting Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Jeffrey W. Jones and Martha Dugan Rehm and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Adam M. Aron Chairman of the Board and Director March 25, 2004
- ---------------------------------------
Adam M. Aron
/s/ Martha Dugan Rehm Senior Vice President and Director March 25, 2004
- ---------------------------------------
Martha Dugan Rehm
/s/ James P. Thompson Director March 25, 2004
- ---------------------------------------
James P. Thompson
/s/ Jeffrey W. Jones Senior Vice President and Principal March 25, 2004
- --------------------------------------- Accounting Officer
Jeffrey W. Jones
II-17
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 25th day of March, 2004.
KEYSTONE FOOD & BEVERAGE COMPANY
By: /s/ Jeffrey W. Jones
----------------------------------------------
Name: Jeffrey W. Jones
Title: Senior Vice President and Principal
Accounting Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Jeffrey W. Jones and Martha Dugan Rehm and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Roger D. McCarthy Chairman of the Board, President and Director March 25, 2004
- ---------------------------------------
Roger D. McCarthy
/s/ Jeffrey W. Jones Senior Vice President, Principal Accounting March 25, 2004
- --------------------------------------- Officer and Director
Jeffrey W. Jones
/s/ Martha Dugan Rehm Senior Vice President and Director March 25, 2004
- ---------------------------------------
Martha Dugan Rehm
II-18
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 25th day of March, 2004.
KEYSTONE RESORT PROPERTY MANAGEMENT Company
By: /s/ Jeffrey W. Jones
----------------------------------------------
Name: Jeffrey W. Jones
Title: Senior Vice President and Principal
Accounting Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Jeffrey W. Jones and Martha Dugan Rehm and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Adam M. Aron Chairman of the Board and Director March 25, 2004
- ---------------------------------------
Adam M. Aron
/s/ Jeffrey W. Jones Senior Vice President, Principal Accounting March 25, 2004
- --------------------------------------- Officer and Director
Jeffrey W. Jones
/s/ James P. Thompson Director March 25, 2004
- ---------------------------------------
James P. Thompson
/s/ Martha Dugan Rehm Senior Vice President and Director March 25, 2004
- ---------------------------------------
Martha Dugan Rehm
II-19
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 25th day of March, 2004.
LODGE PROPERTIES, INC.
By: /s/ Jeffrey W. Jones
-----------------------------------------------
Name: Jeffrey W. Jones
Title: Senior Vice President and Principal
Accounting Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Jeffrey W. Jones and Martha Dugan Rehm and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Adam M. Aron Chairman of the Board, President and Director March 25, 2004
- ---------------------------------------
Adam M. Aron
/s/ Jeffrey W. Jones Senior Vice President, Principal Accounting March 25, 2004
- --------------------------------------- Officer and Director
Jeffrey W. Jones
/s/ Martha Dugan Rehm Senior Vice President and Director March 25, 2004
- ---------------------------------------
Martha Dugan Rehm
II-20
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 25th day of March, 2004.
LODGE REALTY, INC.
By: /s/ Jeffrey W. Jones
----------------------------------------------
Name: Jeffrey W. Jones
Title: Senior Vice President and Principal
Accounting Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Jeffrey W. Jones and Martha Dugan Rehm and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Adam M. Aron Chairman of the Board and Director March 25, 2004
- ---------------------------------------
Adam M. Aron
President and Director March 25, 2004
/s/ James P. Thompson
- ---------------------------------------
James P. Thompson
Senior Vice President, Principal Accounting March 25, 2004
/s/ Jeffrey W. Jones Officer and Director
- ---------------------------------------
Jeffrey W. Jones
Senior Vice President and Director March 25, 2004
/s/ Martha Dugan Rehm
- ---------------------------------------
Martha Dugan Rehm
II-21
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 25th day of March, 2004.
PROPERTY MANAGEMENT ACQUISITION
CORP., INC.
By: /s/ Jeffrey W. Jones
-----------------------------------------------
Name: Jeffrey W. Jones
Title: Senior Vice President and Principal
Accounting Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Jeffrey W. Jones and Martha Dugan Rehm and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Adam M. Aron Chairman of the Board and Director March 25, 2004
- ---------------------------------------
Adam M. Aron
/s/ Jeffrey W. Jones Senior Vice President, Principal Accounting March 25, 2004
- --------------------------------------- Officer and Director
Jeffrey W. Jones
/s/ Martha Dugan Rehm Senior Vice President and Director March 25, 2004
- ---------------------------------------
Martha Dugan Rehm
II-22
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 25th day of March, 2004.
ROCKRESORTS CASA MADRONA, LLC
By: ROCKRESORTS INTERNATIONAL, LLC
By: /s/ Jeffrey W. Jones
-----------------------------------------------
Name: Jeffrey W. Jones
Title: Senior Vice President and Principal
Accounting Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Jeffrey W. Jones and Martha Dugan Rehm and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Martha Dugan Rehm Manager March 25, 2004
- ---------------------------------------
Rockresorts International, LLC
By: Martha Dugan Rehm
Senior Vice President
/s/ Edward E. Mace President and Chief Executive Officer March 25, 2004
- ---------------------------------------
Edward E. Mace
/s/ Jeffrey W. Jones Senior Vice President and Principal March 25, 2004
- --------------------------------------- Accounting Officer
Jeffrey W. Jones
/s/ Martha Dugan Rehm Senior Vice President March 25, 2004
- ---------------------------------------
Martha Dugan Rehm
II-23
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 25th day of March, 2004.
ROCKRESORTS CHEECA, LLC
By: ROCKRESORTS INTERNATIONAL, LLC
By: /s/ Jeffrey W. Jones
----------------------------------------------
Name: Jeffrey W. Jones
Title: Senior Vice President and Principal
Accounting Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Jeffrey W. Jones and Martha Dugan Rehm and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Martha Dugan Rehm Manager March 25, 2004
- ---------------------------------------
Rockresorts International, LLC
By: Martha Dugan Rehm
Senior Vice President
/s/ Edward E. Mace President and Chief Executive Officer March 25, 2004
- ---------------------------------------
Edward E. Mace
/s/ Jeffrey W. Jones Senior Vice President and Principal March 25, 2004
- --------------------------------------- Accounting Officer
Jeffrey W. Jones
/s/ Martha Dugan Rehm Senior Vice President March 25, 2004
- ---------------------------------------
Martha Dugan Rehm
II-24
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 25th day of March, 2004.
ROCKRESORTS EQUINOX, INC.
By: /s/ Jeffrey W. Jones
------------------------------------------------
Name: Jeffrey W. Jones
Title: Senior Vice President and Principal
Accounting Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Jeffrey W. Jones and Martha Dugan Rehm and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Edward E. Mace President, Chief Executive Officer and March 25, 2004
- --------------------------------------- Director
Edward E. Mace
/s/ Janice McGill Director March 25, 2004
- ---------------------------------------
Janice McGill
/s/ John Alexopoulos Director March 25, 2004
- ---------------------------------------
John Alexopoulos
/s/ Jeffrey W. Jones Senior Vice President and Principal March 25, 2004
- --------------------------------------- Accounting Officer
Jeffrey W. Jones
II-25
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 25th day of March, 2004.
ROCKRESORTS INTERNATIONAL, LLC
By: /s/ Jeffrey W. Jones
-----------------------------------------------
Name: Jeffrey W. Jones
Title: Senior Vice President and Principal
Accounting Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Jeffrey W. Jones and Martha Dugan Rehm and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Adam M. Aron Class "A" Manager March 25, 2004
- ---------------------------------------
Adam M. Aron, Chairman
/s/ Martha Dugan Rehm Class "A" Manager and Senior Vice President March 25, 2004
- ---------------------------------------
Martha Dugan Rehm
/s/ Robert Katz Class "A" Manager March 25, 2004
- ---------------------------------------
Robert Katz
/s/ Jeffrey W. Jones Class "A" Manager, Senior Vice President and March 25, 2004
- --------------------------------------- Principal Accounting Officer
Jeffrey W. Jones
/s/ Edward Mace Class "A" Manager, Chief Executive Officer March 25, 2004
- --------------------------------------- and President
Edward Mace
II-26
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 25th day of March, 2004.
ROCKRESORTS, LLC
By: ROCKRESORTS INTERNATIONAL, LLC
By: /s/ Jeffrey W. Jones
-----------------------------------------------
Name: Jeffrey W. Jones
Title: Senior Vice President and Principal
Accounting Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Jeffrey W. Jones and Martha Dugan Rehm and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Martha Dugan Rehm Manager March 25, 2004
- ---------------------------------------
Rockresorts International, LLC
By: Martha Dugan Rehm
Senior Vice President
/s/ Edward E. Mace President and Chief Executive Officer March 25, 2004
- ---------------------------------------
Edward E. Mace
/s/ Jeffrey W. Jones Senior Vice President and Principal March 25, 2004
- --------------------------------------- Accounting Officer
Jeffrey W. Jones
II-27
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 25th day of March, 2004.
ROCKRESORTS LAPOSADA, LLC
By: /s/ Jeffrey W. Jones
-----------------------------------------------
Name: Jeffrey W. Jones
Title: Senior Vice President and Principal
Accounting Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Jeffrey W. Jones and Martha Dugan Rehm and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Martha Dugan Rehm Manager March 25, 2004
- ---------------------------------------
Rockresorts International, LLC
By: Martha Dugan Rehm
Senior Vice President
/s/ Edward E. Mace President and Chief Executive Officer March 25, 2004
- ---------------------------------------
Edward E. Mace
/s/ Jeffrey W. Jones Senior Vice President and Principal March 25, 2004
- --------------------------------------- Accounting Officer
Jeffrey W. Jones
II-28
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 25th day of March, 2004.
ROCKRESORTS ROSARIO, LLC
By: /s/ Jeffrey W. Jones
----------------------------------------------
Name: Jeffrey W. Jones
Title: Senior Vice President and Principal
Accounting Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Jeffrey W. Jones and Martha Dugan Rehm and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Martha Dugan Rehm Manager March 25, 2004
- ---------------------------------------
Rockresorts International, LLC
By: Martha Dugan Rehm
Senior Vice President
/s/ Edward E. Mace President and Chief Executive Officer March 25, 2004
- ---------------------------------------
Edward E. Mace
/s/ Jeffrey W. Jones Senior Vice President and Principal March 25, 2004
- --------------------------------------- Accounting Officer
Jeffrey W. Jones
II-29
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 25th day of March, 2004.
ROCKRESORTS WYOMING, LLC
By: /s/ Jeffrey W. Jones
------------------------------------------------
Name: Jeffrey W. Jones
Title: Senior Vice President and Principal
Accounting Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Jeffrey W. Jones and Martha Dugan Rehm and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Martha Dugan Rehm Managing Member March 25, 2004
- ---------------------------------------
Rockresorts International, LLC
By: Martha Dugan Rehm
Senior Vice President
/s/ Edward E. Mace President March 22, 2004
- ---------------------------------------
Edward E. Mace
/s/ Jeffrey W. Jones Senior Vice President and Principal March 25, 2004
- --------------------------------------- Accounting Officer
Jeffrey W. Jones
II-30
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 25th day of March, 2004.
TETON HOSPITALITY SERVICES, INC.
By: /s/ Jeffrey W. Jones
-----------------------------------------------
Name: Jeffrey W. Jones
Title: Senior Vice President and Principal
Accounting Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Jeffrey W. Jones and Martha Dugan Rehm and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Adam M. Aron Chairman of the Board and Director March 25, 2004
- ---------------------------------------
Adam M. Aron
/s/ Jeffrey W. Jones Senior Vice President, Principal Accounting March 25, 2004
- --------------------------------------- Officer and Director
Jeffrey W. Jones
/s/ Martha Dugan Rehm Senior Vice President and Director March 25, 2004
- ---------------------------------------
Martha Dugan Rehm
II-31
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 25th day of March, 2004.
THE VAIL CORPORATION
By: /s/ Jeffrey W. Jones
-----------------------------------------------
Name: Jeffrey W. Jones
Title: Senior Vice President and Principal
Accounting Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Jeffrey W. Jones and Martha Dugan Rehm and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Adam M. Aron Chairman of the Board, Chief Executive March 25, 2004
- --------------------------------------- Officer, President and Director
Adam M. Aron
/s/ Jeffrey W. Jones Senior Vice President, Principal Accounting March 25, 2004
- --------------------------------------- Officer and Director
Jeffrey W. Jones
/s/ Martha Dugan Rehm Senior Vice President and Director March 25, 2004
- ---------------------------------------
Martha Dugan Rehm
II-32
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 25th day of March, 2004.
THE VILLAGE AT BRECKENRIDGE ACQUISITION CORP., INC.
By: /s/ Jeffrey W. Jones
-----------------------------------------------
Name: Jeffrey W. Jones
Title: Senior Vice President and Principal
Accounting Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Jeffrey W. Jones and Martha Dugan Rehm and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Roger McCarthy President and Director March 25, 2004
- ---------------------------------------
Roger McCarthy
/s/ Jeffrey W. Jones Senior Vice President, Principal Accounting March 25, 2004
- --------------------------------------- Officer and Director
Jeffrey W. Jones
/s/ Martha Dugan Rehm Senior Vice President and Director March 25, 2004
- ---------------------------------------
Martha Dugan Rehm
II-33
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 25th day of March, 2004.
VAIL ASSOCIATES HOLDINGS, LTD.
By: /s/ Jeffrey W. Jones
------------------------------------------------
Name: Jeffrey W. Jones
Title: Senior Vice President and Principal
Accounting Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Jeffrey W. Jones and Martha Dugan Rehm and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Adam M. Aron Chairman of the Board and Director March 25, 2004
- ---------------------------------------
Adam M. Aron
/s/ James P. Thompson President and Director March 25, 2004
- ---------------------------------------
James P. Thompson
/s/ Jeffrey W. Jones Senior Vice President, Principal Accounting March 25, 2004
- --------------------------------------- Officer and Director
Jeffrey W. Jones
/s/ Martha Dugan Rehm Senior Vice President and Director March 25, 2004
- ---------------------------------------
Martha Dugan Rehm
II-34
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 25th day of March, 2004.
VAIL ASSOCIATES REAL ESTATE, INC.
By: /s/ Jeffrey W. Jones
-----------------------------------------------
Name: Jeffrey W. Jones
Title: Senior Vice President and Principal
Accounting Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Jeffrey W. Jones and Martha Dugan Rehm and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Adam M. Aron Chairman of the Board and Director March 25, 2004
- ---------------------------------------
Adam M. Aron
/s/ James P. Thompson President and Director March 25, 2004
- ---------------------------------------
James P. Thompson
/s/ Jeffrey W. Jones Senior Vice President, Principal Accounting March 25, 2004
- --------------------------------------- Officer and Director
Jeffrey W. Jones
/s/ Martha Dugan Rehm Senior Vice President March 25, 2004
- ---------------------------------------
Martha Dugan Rehm
II-35
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 25th day of March, 2004.
VAIL FOOD SERVICES, INC.
By: /s/ Jeffrey W. Jones
----------------------------------------------
Name: Jeffrey W. Jones
Title: Senior Vice President and Principal
Accounting Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Jeffrey W. Jones and Martha Dugan Rehm and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ William Jensen Chairman of the Board, President and Director March 25, 2004
- ---------------------------------------
William Jensen
/s/ Jeffrey W. Jones Senior Vice President, Principal Accounting March 25, 2004
- --------------------------------------- Officer and Director
Jeffrey W. Jones
/s/ Martha Dugan Rehm Senior Vice President and Director March 25, 2004
- ---------------------------------------
Martha Dugan Rehm
II-36
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 25th day of March, 2004.
VAIL HOLDINGS, INC.
By: /s/ Jeffrey W. Jones
-----------------------------------------------
Name: Jeffrey W. Jones
Title: Chief Financial Officer, Senior Vice
President and Principal Accounting Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Jeffrey W. Jones and Martha Dugan Rehm, and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Adam M. Aron Chairman of the Board, Chief Executive March 25, 2004
- --------------------------------------- Officer, President and Director
Adam M. Aron
/s/ Jeffrey W. Jones Senior Vice President, Chief Financial March 25, 2004
- --------------------------------------- Officer, Principal Accounting Officer and
Jeffrey W. Jones Director
/s/ Martha Dugan Rehm Senior Vice President and Director March 25, 2004
- ---------------------------------------
Martha Dugan Rehm
II-37
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 25th day of March, 2004.
VAIL RESORTS DEVELOPMENT COMPANY
By: /s/ Jeffrey W. Jones
-----------------------------------------------
Name: Jeffrey W. Jones
Title: Senior Vice President and Principal
Accounting Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Jeffrey W. Jones and Martha Dugan Rehm and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Adam M. Aron Chairman of the Board and Director March 25, 2004
- ---------------------------------------
Adam M. Aron
/s/ James P. Thompson Chief Executive Officer, President and March 25, 2004
- --------------------------------------- Director
James P. Thompson
/s/ Jeffrey W. Jones Senior Vice President, Principal Accounting March 25, 2004
- --------------------------------------- Officer and Director
Jeffrey W. Jones
/s/ Robert A. Katz Director March 25, 2004
- ---------------------------------------
Robert A. Katz
II-38
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 25th day of March, 2004.
VAIL SUMMIT RESORTS, INC.
By: /s/ Jeffrey W. Jones
----------------------------------------------
Name: Jeffrey W. Jones
Title: Senior Vice President and Principal
Accounting Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Jeffrey W. Jones and Martha Dugan Rehm and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Adam M. Aron Chairman of the Board and Director March 25, 2004
- ---------------------------------------
Adam M. Aron
/s/ Jeffrey W. Jones Senior Vice President, Principal Accounting March 25, 2004
- --------------------------------------- Officer and Director
Jeffrey W. Jones
/s/ Martha Dugan Rehm Senior Vice President and Director March 25, 2004
- ---------------------------------------
Martha Dugan Rehm
II-39
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 25th day of March, 2004.
VAIL TRADEMARKS, INC.
By: /s/ Jeffrey W. Jones
-----------------------------------------------
Name: Jeffrey W. Jones
Title: Senior Vice President and Principal
Accounting Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Jeffrey W. Jones and Martha Dugan Rehm and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Adam M. Aron Chairman of the Board and Director March 25, 2004
- ---------------------------------------
Adam M. Aron
/s/ Jeffrey W. Jones Senior Vice President, Principal Accounting March 25, 2004
- --------------------------------------- Officer and Director
Jeffrey W. Jones
/s/ Martha Dugan Rehm Senior Vice President and Director March 25, 2004
- ---------------------------------------
Martha Dugan Rehm
II-40
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 25th day of March, 2004.
VAIL/ARROWHEAD, INC.
By: /s/ Jeffrey W. Jones
----------------------------------------------
Name: Jeffrey W. Jones
Title: Senior Vice President and Principal
Accounting Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Jeffrey W. Jones and Martha Dugan Rehm and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Adam M. Aron Chairman of the Board and Director March 25, 2004
- ---------------------------------------
Adam M. Aron
/s/ James P. Thompson President and Director March 25, 2004
- ---------------------------------------
James P. Thompson
/s/ Jeffrey W. Jones Senior Vice President, Principal Accounting March 25, 2004
- --------------------------------------- Officer and Director
Jeffrey W. Jones
/s/ Martha Dugan Rehm Senior Vice President and Director March 25, 2004
- ---------------------------------------
Martha Dugan Rehm
II-41
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 25th day of March, 2004.
VAIL/BEAVER CREEK RESORT PROPERTIES, INC.
By: /s/ Jeffrey W. Jones
-----------------------------------------------
Name: Jeffrey W. Jones
Title: Senior Vice President and Principal
Accounting Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Jeffrey W. Jones and Martha Dugan Rehm and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Adam M. Aron Chairman of the Board and Director March 25, 2004
- ---------------------------------------
Adam M. Aron
/s/ Jeffrey W. Jones Senior Vice President, Principal Accounting March 25, 2004
- --------------------------------------- Officer and Director
Jeffrey W. Jones
/s/ Martha Dugan Rehm Senior Vice President and Director March 25, 2004
- ---------------------------------------
Martha Dugan Rehm
/s/ James P. Thompson Vice President and Director March 25, 2004
- ---------------------------------------
James P. Thompson
II-42
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 25th day of March, 2004.
VAMHC, INC.
By: /s/ Jeffrey W. Jones
--------------------------------------
Name: Jeffrey W. Jones
Title: Senior Vice President
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Jeffrey W. Jones and Martha Dugan Rehm and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Adam M. Aron Chairman of the Board and Director March 25, 2004
- ---------------------------------------
Adam M. Aron
/s/ Jeffrey W. Jones Senior Vice President and Director March 25, 2004
- ---------------------------------------
Jeffrey W. Jones
/s/ Martha Dugan Rehm Senior Vice President and Director March 25, 2004
- ---------------------------------------
Martha Dugan Rehm
II-43
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 25th day of March, 2004.
VAIL RR, INC.
By: /s/ Jeffrey W. Jones
------------------------------------------------
Name: Jeffrey W. Jones
Title: Senior Vice President and Principal
Accounting Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Jeffrey W. Jones and Martha Dugan Rehm and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Adam M. Aron Chairman of the Board, President and Director March 25, 2004
- ---------------------------------------
Adam M. Aron
/s/ Jeffrey W. Jones Senior Vice President, Principal Accounting March 25, 2004
- --------------------------------------- Officer and Director
Jeffrey W. Jones
/s/ Martha Dugan Rehm Senior Vice President and Director March 25, 2004
- ---------------------------------------
Martha Dugan Rehm
II-44
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 25th day of March, 2004.
VA RANCHO MIRAGE I, INC.
By: /s/ Jeffrey W. Jones
-----------------------------------------------
Name: Jeffrey W. Jones
Title: Senior Vice President and Principal
Accounting Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Jeffrey W. Jones and Martha Dugan Rehm and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Adam M. Aron Chairman of the Board and President March 25, 2004
- ---------------------------------------
Adam M. Aron
/s/ Jeffrey W. Jones Senior Vice President, Principal Accounting March 25, 2004
- --------------------------------------- Officer and Director
Jeffrey W. Jones
/s/ Martha Dugan Rehm Senior Vice President and Director March 25, 2004
- ---------------------------------------
Martha Dugan Rehm
II-45
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 25th day of March, 2004.
VA RANCHO MIRAGE II, INC.
By: /s/ Jeffrey W. Jones
-----------------------------------------------
Name: Jeffrey W. Jones
Title: Senior Vice President and Principal
Accounting Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Jeffrey W. Jones and Martha Dugan Rehm and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Adam M. Aron Chairman and President March 25, 2004
- ---------------------------------------
Adam M. Aron
/s/ Jeffrey W. Jones Senior Vice President, Principal Accounting March 25, 2004
- --------------------------------------- Officer and Director
Jeffrey W. Jones
/s/ Martha Dugan Rehm Senior Vice President and Director March 25, 2004
- ---------------------------------------
Martha Dugan Rehm
II-46
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 25th day of March, 2004.
VA RANCHO MIRAGE RESORT, L.P.
By: /s/ Jeffrey W. Jones
----------------------------------------------
Name: Jeffrey W. Jones
Title: Senior Vice President and Principal
Accounting Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Jeffrey W. Jones and Martha Dugan Rehm and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Martha Dugan Rehm General Partner March 25, 2004
- ---------------------------------------
VA Rancho Mirage I, Inc.
By its Authorized Officer
Martha Dugan Rehm
/s/ Martha Dugan Rehm Limited Partner March 25, 2004
- ---------------------------------------
VA Rancho Mirage II, Inc.
By its Authorized Officer
Martha Dugan Rehm
/s/ Adam M. Aron Chairman of the Board and President of VA March 25, 2004
- --------------------------------------- Rancho Mirage I, Inc.
Adam M. Aron
/s/ Jeffrey W. Jones Senior Vice President, Principal Accounting March 25, 2004
- --------------------------------------- Officer, and Director of VA Rancho Mirage I,
Jeffrey W. Jones Inc.
/s/ Martha Dugan Rehm Senior Vice President and Director of VA March 25, 2004
- --------------------------------------- Rancho Mirage I, Inc.
Martha Dugan Rehm
II-47
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 25th day of March, 2004.
VR Heavenly I, Inc.
By: /s/ Jeffrey W. Jones
----------------------------------------------
Name: Jeffrey W. Jones
Title: Senior Vice President and Principal
Accounting Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Jeffrey W. Jones and Martha Dugan Rehm and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Jeffrey W. Jones Senior Vice President, Principal Accounting March 25, 2004
- --------------------------------------- Officer and Director
Jeffrey W. Jones
/s/ Martha Dugan Rehm Senior Vice President and Director March 25, 2004
- ---------------------------------------
Martha Dugan Rehm
II-48
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 25th day of March, 2004.
VR Heavenly II, Inc.
By: /s/ Jeffrey W. Jones
-----------------------------------------------
Name: Jeffrey W. Jones
Title: Senior Vice President and Principal
Accounting Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Jeffrey W. Jones and Martha Dugan Rehm and each acting alone, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments or supplements to this Registration
Statement and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing necessary or appropriate to be done with this
Registration Statement and any amendments or supplements hereto, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Jeffrey W. Jones Senior Vice President, Principal Accounting March 25, 2004
- --------------------------------------- Officer and Director
Jeffrey W. Jones
/s/ Martha Dugan Rehm Senior Vice President and Director March 25, 2004
- ---------------------------------------
Martha Dugan Rehm
II-49