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RESOLUTION
RE: APPROVE CLOSING DOCUMENTS FOR MENTAL HEALTH FACILITIES
REVENUE BONDS (WELD MENTAL HEALTH CENTER PROJECT) AND
AUTHORIZE CHAIRMAN TO SIGN
WHEREAS , the Board of County Commissioners of Weld County,
Colorado, pursuant to Colorado statute and the Weld County Home
Rule Charter, is vested with the authority of administering the
affairs of Weld County, Colorado, and
WHEREAS , the Board did, on the 27th day of June, 1984 ,
approve Ordinance #125 , authorizing the issuance and sale of
Mental Health Facilities Revenue Bonds (Weld Mental Health Center
Project) and authorizing the execution of certain documents re-
lating thereto, and
WHEREAS , the Board has now been presented with Closing Docu-
ments for the Weld Mental Health Center Project, and
WHEREAS , the Board deems it advisable to approve said Clos-
ing Documents, consistent with Section 1 of Ordinance #125 ,
copies of which are attached hereto and incorporated herein by
reference.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Com-
missioners of Weld County, Colorado, that the aforementioned
Closing Documents for Mental Health Facilities Revenue Bonds
(Weld Mental Health Center Project) be, and hereby are, approved.
BE IT FURTHER RESOLVED by the Board that the Chairman be,
and hereby is, authorized to sign said Closing Documents.
The above and foregoing Resolution was , on motion duly made
and seconded, adopted by the following vote on the 30th day of
July, A.D. , 1984 .
OAAAA EAtin4 tl:r� BOARD OF COUNTY COMMISSIONERS
ATTEST WELD COUNTY, COLORADO
�i1 �
Weld Count Clerk and Recorder \ s---
and Clerk to the Board�1 Norman Carlson Chairman
“es.-)
D puty County Cl rk acqu ine ornson, Pro-Tem
APPROXED AS TO FORM: EXCUSED
= Gene R. Brant
\-,//(��County Atto ney C uck Carlson_
t' hn . Martin
g
840711
LOAN AGREEMENT
BETWEEN
WELD COUNTY, COLORADO
and
WELD MENTAL HEALTH CENTER, INC.
A COLORADO NONPROFIT CORPORATION
Dated as of July 1 , 1984
The interest of Weld County, Colorado in this Loan
Agreement has been assigned by the County to United Bank of
Greeley, as Trustee, under an Indenture of Trust dated as of July
1 , 1984.
TABLE OF CONTENTS
(Not a Part of this Agreement)
Page
PARTIES 1
ARTICLE 1 - DEFINITIONS , EXHIBITS , RULES OF
INTERPRETATION AND GENERAL PROVISIONS 1-1
Section 1 .01 . Definitions 1-1
Section 1 .02. Exhibits 1-5
Section 1 .03 . Rules of Interpretation 1-5
Section 1 .04. Limitation on Issuer Liability 1-5
ARTICLE 2 - LOAN TO BORROWER 2-1
ARTICLE 3 - THE PROJECT 3-1
Section 3.01 . Acquisition and Construction 3-1
Section 3 .02. Advances by the Borrower 3-1
Section 3.03 . Ownership of Project 3-1
Section 3 .04. Removal and Release of Parcels of
the Project Sites or Buildings 3-1
Section 3 .05. Agreement to Issue Bonds;
Application of Bond Proceeds 3-2
ARTICLE 4 - PROVISIONS FOR PAYMENT 4-1
Section 4.01 . Payment of Loan 4-1
Section 4.02. Deficiency in Bond Fund 4-1
Section 4.03 . Trustee' s Fees and Expenses 4-2
Section 4.04. Administration Expenses 4-2
Section 4.05 . Default in Payment of Loan Payments ,
Trustee' s Fees or Administration
Expenses 4-2
Section 4.06. Borrower' s Obligations Hereunder
Absolute and Unconditional ;
Borrower Remedies 4-2
ARTICLE 5 - PREPAYMENT OF THE LOAN 5-1
Section 5 .01 . Optional Prepayment of the Loan 5-1
Section 5.02 . Mandatory Prepayment of the Loan
Upon Condemnation, Damage , or
Destruction of Project 5-1
Section 5 .03. Mandatory Prepayment of the Loan
Upon Unenforceability of this Loan
Agreement 5-1
Section 5.04. Prepayment Price 5-1
Section 5.05. Notice of Prepayment 5-2
Section 5.06. Effect of Defaults on Optional
Prepayment 5-2
- i -
ARTICLE 6 - REPRESENTATIONS 6-1
Section 6 .01 . Representations by Issuer 6-1
Section 6.02. Representations of Borrower 6-2
ARTICLE 7 - AFFIRMATIVE COVENANTS OF BORROWER 7-1
Section 7 .01 . Continuing Existence and
Qualification 7-1
Section 7 .02. Licenses , Qualifications and
Accreditation 7-1
Section 7 .03. Tax Status 7-1
Section 7 .04. Operation, Rates and Charges 7-1
Section 7 .05. Performance of Obligations 7-2
Section 7 .06. Inspection 7-2
Section 7 .07. Compliance with Laws 7-2
Section 7 .08 . Correction of Defects 7-2
Section 7 .09. Accounts and Records 7-2
Section 7 .10 . Financial Information 7-3
Section 7 .11 . Further Documents 7-3
Section 7 .12 . Notification of Event of Default 7-3
Section 7 .13. Surety Bonds 7-3
Section 7.14. Protection of Project 7-3
Section 7 .15. Payment of Taxes , Etc 7-3
Section 7 .16 . Debts 7-3
Section 7 . 17. Cooperation 7-3
ARTICLE 8 - NEGATIVE COVENANTS OF BORROWER 8-1
Section 8 .01 . Alteration of Other Documents 8-1
Section 8.02. Personalty and Fixtures 8-1
Section 8 .03. Liens 8-1
Section 8.04. Value of Project 8-1
Section 8 .05. Existence 8-1
Section 8.06. Suspension or Discontinuance of
Payments , or Termination of Loan
Agreement 8-2
ARTICLE 9 - MAINTENANCE; INSURANCE; DAMAGE; CONDEMNATION 9-1
Section 9.01 . Maintenance of and Additions
to Project 9-1
Section 9.02 . Insurance 9-1
Section 9.03. Damage, Destruction, Condemnation
and Use of Net Proceeds 9-1
Section 9.04. No Abatement of Loan Payments 9-2
ARTICLE 10 - ASSIGNMENT, PLEDGING , REDEMPTION 10-1
Section 10 .01 . Assignment by Borrower 10-1
Section 10 .02 . Assignment and Pledge by Issuer 10-1
Section 10.03. Redemption of Bonds 10-1
- ii -
ARTICLE 11 - FEDERAL INCOME TAX MATTERS 11-1 '
Section 11 .01 . Arbitrage 11-1
ARTICLE 12 - EVENTS OF DEFAULT AND REMEDIES 12-1
Section 12 .01 . Events of Default 12-1
Section 12 .02. Remedies 12-2
ARTICLE 13 - MISCELLANEOUS 13-1
Section 13.01 . Notices 13-1
Section 13.02. Binding Effect 13-1
Section 13 .03. Severability 13-1
Section 13.04. Amount Remaining in Bond Fund 13-1
Section 13 .05. Authority of Borrower' s
Representative 13-1
Section 13 .06. Authority of Issuer's
Representative 13-2
Section 13 .07. Indemnity 13-2
Section 13.08. Amendments 13-3
Section 13 .09. Execution in Counterparts 13-3
Section 13.10. Governing Law 13-3
Section 13 .11 . Captions 13-3
Section 13 .12 . No Pecuniary Liability of Issuer 13-3
Section 13 .13. Counting of Days 13-4
Section 13 . 14. Term 13-4
EXHIBITS 5 , 6
- iii -
LOAN AGREEMENT
THIS LOAN AGREEMENT dated as of July 1 , 1984, and
actually executed on the :?/-1-y day of July, 1984 , between WELD
COUNTY, STATE OF COLORADO, a body corporate and politic and a
political subdivision duly organized and existing under the
Constitution and laws of the State of Colorado (the "Issuer") , and
WELD MENTAL HEALTH CENTER, INC. a Colorado nonprofit corporation
duly organized and validly existing under the laws of the State of
Colorado (the "Borrower") .
WITNESSET H:
The County and Municipality Development Revenue Bond
Act , consisting of Title 29, Article 3 , Part 1 , Colorado Revised
Statutes (the Act") , authorizes the Issuer to issue revenue bonds
for the purpose of providing one or more projects , including any
land , buildings or other improvements and all necessary and
appurtenant real or personal properties suitable for hospital ,
health-care, or nursing-home facilities (including, without
limitation , clinics and out-patient facilities and facilities for
the training of hospital , health-care or nursing-home personnel) ,
upon such conditions as the Board of County Commissioners of the
Issuer may deem advisable .
Borrower proposes to acquire, remodel and equip
facilities it currently occupies and acquire , remodel and equip
additional existing facilities (collectively the "Project") , and
to borrow from the Issuer funds to defray the cost of financing
the Project .
Issuer proposes to undertake , as an authorized "project"
as described in the Act, the financing of the Project .
NOW, THEREFORE, for and in consideration of the premises
and the mutual covenants hereinafter contained, Issuer and
Borrower agree as follows :
- 1 -
ARTICLE 1
DEFINITIONS, EXHIBITS, RULES OF INTERPRETATION AND
GENERAL PROVISIONS
Section 1 .01 Definitions .
The following terms shall have the respective meanings
set forth below:
Act : the County and Municipality Development Revenue
Bond Ac_t , constituting Title 29, Article 3, Part 1 , Colorado
Revised Statutes .
Additional Bonds : any Bonds issued pursuant to and in
accordance with Section 2 .12 of the Indenture.
Administration Expenses : the reasonable and necessary
expenses incurred pursuant to this Loan Agreement.
Bond Fund: the Bond Fund created in Section 3.03 of the
Indenture.
Bond Ordinance : the Ordinance of Weld County, State of
Colorado, finally passed and adopted on or about June 27 , 1984 ,
pursuant to which the Bonds are issued , including any amendment
thereto or supplement thereof.
Bond Register: the register maintained by the Trustee,
as Registrar, pursuant to the Indenture.
Bonds : all bonds issued pursuant to the Indenture,
including tie MMental Health Facilities Revenue Bonds (Weld Mental
Health Center Project) Series 1984 issued by Weld County, State of
Colorado and any Additional Bonds issued pursuant to the
Indenture.
Borrower: Weld Mental Health Center, Inc . , a Colorado
nonprofit corporation , duly organized and validly existing under
the laws of the State of Colorado , its successors and assigns , and
any surviving, resulting or transferee corporation which may
assume its obligations in accordance with the provisions of this
Loan Agreement .
Borrower' s Representative: the person (who may be an
employee of Borrower) at the time designated to act in behalf of
Borrower by written certificate furnished to Weld County, State of
Colorado, containing the specimen signature of such person and
signed on behalf of Borrower by one or more of its officers . A
certificate may designate an alternate or alternates .
1-1
Buildings : those certain buildings and all other '
facilities and improvements forming a part of the Project,
exclusive of leased equipment , which are located on the Project
Sites as of the date hereof and all other buildings, structures
and improvements hereafter located on the Project Sites , as they
may at any time exist .
Code : the United States Internal Revenue Code of 1954,
as amended.
Construction Fund: the Construction Fund created in
Section 3 .09 of the Indenture.
Costs or Costs of the Project : include the following
costs :
(a) The initial or acceptance fees of Trustee and other
reasonable fees and expenses of Trustee as the same become due,
the fees and expenses for recording or filing any Financing
Statements , and any other documents or instruments that Borrower,
Issuer or Trustee may consider desirable to file or record in
order to perfect or protect the rights of Issuer and Trustee to
receive revenues pursuant to this Loan Agreement;
(b) Costs incurred in connection with the preparation
of the Plans and Specifications (including any preliminary study
or planning of the Project or any aspect thereof) ;
(c) Expenses incurred by the Issuer and Borrower in
connection with the issuance of the Bonds , including, without
limitation, the financial consultant or underwriter, legal and
accounting fees and expenses , and printing, photocopying and
engraving costs;
(d) Costs incurred in connection with the acquisition
and preparation of the Project Sites ;
(e) Expenses incurred for labor, services , materials
and supplies used or furnished in the acquisition, construction,
or installation of the Project , all as provided in the Plans and
Specifications;
(f) Fees incurred for architectural , engineering and
supervisory services with respect to the Project;
(g) To the extent not paid by a Contractor for
construction or installation with respect to any part of the
Project , the premiums of all insurance required to be taken out
and maintained during the period of construction of the Project;
(h) Expenses incurred by Borrower with approval of the
Issuer in seeking to enforce any remedy against any contractor,
subcontractor, materialman or surety in respect of any default
under a contract relating to the Project;
1-2
(i) Other costs and expenses relating to the Project '
which would constitute a cost or expense for which the Issuer may
issue bonds under the Act and which will not impair the exemption
of interest on the Bonds from federal or Colorado income taxation;
(j) Any sums required to reimburse the Issuer or
Borrower for advances made by either of them for any of the above
items .
Event of Default : the events and conditions described in
Section 12 .01 hereof.
Financing Statement: a financing statement perfecting
the security interest granted by, and including, but limited to ,
the Mortgage and Security Agreement.
Fully Registered Bond : any Bond in substantially the
form set forth in the Indenture.
Indenture: the Indenture of Trust of even date herewith
between Issuer and Trustee including any indentures supplemental
thereto , pursuant to which the Bonds are authorized to be issued
and secured.
Insurer: S��„ , 7= /� 1—T vrr for
the title nsurance.
Issuer: Weld County, State of Colorado or any public
corporation succeeding to its rights and obligations under this
Loan Agreement.
Issuer' s Representative: the person (who may be an
employee of Issuer) at the time designated to act in behalf of
Issuer by written certificate furnished to the Borrower containing
the specimen signature of such person and signed on behalf of
Issuer by one or more of its officers . A certificate may
designate an alternate or alternates .
Loan: the loan described in Article 2 hereof made by the
Issuer to Borrower.
Loan Agreement : this loan agreement dated as of July 1 ,
1984 and actually executed on the date of delivery of the Series
1984 Bonds , between the Issuer and the Borrower, including any
amendment hereof or supplement hereto entered into in accordance
with the provisions hereof.
Loan Repayments : those amounts necessary to repay the
Loan made hereunder as provided in Article 4 hereof.
Mortgage or Combination Mortgage and Security Agreement :
the real estate mortgage and security agreement, granting the
Trustee a first lien on the Project and a security interest in the
1-3
personal property described therein as security for payment of the '
Bonds , as amended or supplemented in accordance with the
provisions thereof.
Net Proceeds : when used with respect to any insurance
proceeds or condemnation award the gross amount thereof less the
expenses (including reasonable attorney' s fees) incurred in the
collection thereof.
Obligations : all obligations of Borrower to the Issuer
and Trustee, whether now existing or hereafter arising, relating
to or in connection with the financing of the Project herein
provided for, including without limitation, Borrower' s
obligations , covenants and agreements under this Loan Agreement,
and the Security Documents .
Opinion of Counsel : a written opinion of counsel (who
need not be independent counsel unless so specified) appointed by
the Issuer and acceptable to the Borrower or appointed by the
Borrower.
Owner: the Registered Owner of any Bond .
Paying Agent : the Trustee .
Person: natural persons , firms , associations ,
corporations and public bodies .
Plans and Specifications : the Plans and Specifications
for the Project , as the same may be revised in accordance with
Section 9.01 hereof.
Project : the Project Sites together with the Buildings ,
(including fixtures and equipment owned by Borrower, or any entity
or person under the control of Borrower) as the same are acquired ,
stored upon, or constructed, erected or installed thereon.
Project Budget: the budget for acquisition and
preparation of the Project Sites and the acquisition and
construction or installation of the Buildings which has been
heretofore initialed for identification by Borrower and Issuer.
Project Sites : the real property described in Exhibit A
attached hereto.
Registered Owner: the person in whose name a Registered
Bond is registered in the Bond Register.
Registrar: the Trustee.
Reserve Fund : the Reserve Fund created in Section 3.07
of the Indenture.
1-4
Security Documents : the Combination Mortgage and '
Security Agreement , the Financing Statements and any other
instruments or documents securing the Obligations .
Series 1984 Bonds : the Mental Health Facilities Revenue
Bonds (Weld Mental Health Center Project) Series 1984 to be issued
by the Issuer.
Trustee: United Bank of Greeley, in Greeley, Colorado,
being the Registrar , Paying Agent and Trustee under the Indenture,
or any successor corporate trustee.
Section 1 .02 . Exhibits . Attached to and by reference
made a part of this Loan Agreement are (i) Exhibit A, a legal
description of the Project Sites and descriptions of the Buildings
and personal property, equipment and fixtures ; and (ii) Exhibit B,
a schedule of Trustee s fees .
Section 1 .03. Rules of Interpretation.
(a) This Loan Agreement shall be interpreted in
accordance with and governed by the laws of the State of Colorado;
(b) The words "herein" and "hereof" and "hereunder" and
words of similar import , without reference to any particular
section or subdivision, refer to this Loan Agreement as a whole
rather than to any particular section or subdivision hereof;
(c) References in this instrument to any particular
article, section or subsection hereof are to the designated
article , section or subsection of this instrument as originally
executed;
(d) Any terms not defined herein but defined in the
Indenture, Security Documents or other related documents shall
have the same meaning herein unless the context hereof requires
otherwise;
(e) The Table of Contents and titles of articles and
sections herein are for convenience only and are not a part of
this Loan Agreement;
(f) Unless the context hereof clearly requires
otherwise, the singular shall include the plural and vice versa
and the masculine shall include the feminine and vice versa;
(g) All accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles , and all computations provided for
herein shall be made in accordance with generally accepted
accounting principles .
1-5
Section 1 .04 Limitation on Issuer Liability.
No agreements or provisions contained in this Loan
Agreement nor any agreement , covenant or undertaking by the Issuer
contained in any document executed by the Issuer in connection
with the Project shall give rise to any pecuniary liability of the
Issuer or a charge against its general credit or taxing powers , or
shall obligate the Issuer financially in any way except with
respect to the Project and the application of revenues therefrom
and the proceeds of the Bonds . No failure of the Issuer to comply
with any term, condition, covenant or agreement herein shall
subject the Issuer to liability for any claim for damages, costs
or other financial or pecuniary charge except to the extent that
the same can be paid or recovered from the Project or revenues
therefrom or proceeds of the Bonds; and no execution on any claim,
demand, cause of action or judgment shall be levied upon or
collected from the general credit, general funds or taxing powers
of the Issuer. Nothing herein shall preclude a proper party in
interest from seeking and obtaining specific performance against
the Issuer for any failure to comply with any term, conditions ,
covenant or agreement herein; provided , that no costs , expenses or
other monetary relief shall be recoverable from the Issuer except
as may be payable from the Project or its revenues .
(Balance of this page intentionally left blank.)
1-6
ARTICLE 2
LOAN TO BORROWER
Borrower hereby agrees to borrow from Issuer, and the
Issuer agrees to lend to Borrower for payment of Costs of the
Project, subject to all of the terms and conditions , covenants and
agreements contained in this Loan Agreement, the principal amount
of $650,000, to be disbursed as set forth herein. The Issuer
shall not pay out of its general fund or otherwise contribute any
part of the Costs of the Project.
(Balance of this page intentionally left blank. )
2-1
ARTICLE 3
THE PROJECT
Section 3 .01 . Acquisition and Construction. Borrower
agrees that it will acquire and develop the Project Sites and
acquire, construct and equip the Buildings, all substantially in
accordance with the Plans and Specifications .
Section 3.02 . Advances by the Borrower. Borrower has
advanced certain funds necessary for the purpose of acquiring and
constructing the Project .
Section 3 .03. Ownership of Project. Subject to the
terms of this Loan Agreement, the Indenture, and the Security
Documents , the Project shall be the sole and exclusive property
of, and title to the Project shall be vested in, Borrower.
Section 3.04. Removal and Release of Parcels of the
Project Sites or Buildings . The Borrower will not dispose of or
remove or permit the disposal or removal of any parcel of the
Project Sites or the Buildings except in accordance with the
provisions of this Section:
(1) In any instance where the Borrower in its sound
discretion determines that any portion of the Project has become
inadequate, obsolete, worn out , unsuitable , undesirable or
unnecessary for the operation of the Project , the Borrower may, at
its expense , dispose, or remove and dispose , of it and substitute
another parcel of real property or install other items of
machinery, equipment or other personal property, not necessarily
having the same function, provided that such removal and
substitution shall not impair the operating utility and unity of
the Project . All substituted items shall be acquired or installed
free and clear of all liens or encumbrances , and shall become part
of the Project . The Borrower will cooperate with the Issuer and
the Trustee and will pay all costs , including reasonable Counsel ' s
fees , incurred in subjecting to the lien of the Security Documents
all parcels of real property or items of property so substituted ,
and the Issuer will cooperate with the Borrower in securing, if
necessary, release of the property for which the substitution is
made under Section 2-6 of the Mortgage and Security Agreement and
in providing such documents as may be required to facilitate the
removal and substitution.
(2) Upon disposal of part of the Project as described
in subsection (1) above, and provided the operating utility and
unity of the Project are not impaired , the Borrower may decide not
to make any substitution and installation of other items of
property; provided , however, in the case of the sale , trade-in or
other disposition of part of the Project for which no substitution
is to be made , the Borrower shall (i) report to the Trustee by
Borrower' s certificate a description of the real property or item
3-1
to be disposed of or removed and (ii) pay to the Trustee for'
deposit in the Bond Fund the sale proceeds , the credit received
upon trade-in, or an amount equal to the value of the equipment
(in the case of another disposition) as determined by the
Borrower. Nothing in this Section 3 .04 is intended or shall be
deemed to qualify or otherwise limit the Borrower' s obligations
under Section 4.01 hereof.
Section 3 .05. Agreement to Issue Bonds ; Application of
Bond Proceeds . Issuer shall make the Loan to Borrower from the
proceeds of the Bonds , which Issuer shall sell and cause to be
delivered to Prudential-Bache Securities , Inc . , Anderson DeMonbrun
Division and United Bank of Denver, N.A. (the "Initial
Purchasers") the Initial Purchasers thereof. Issuer will deposit
the proceeds of the Bonds (net of underwriting discount , if any)
as follows :
(a) A sum equal to $ V, Y687S comprised of the
accrued interest , if any, paid by the Initial Purchasers of the
Bonds shall be deposited in the Bond Fund;
(b) The sum equal to $96 ,000 shall be deposited in the
Reserve Fund.
(c) The balance of the proceeds received from the sale
of the Bonds shall be deposited in the Construction Fund.
(Balance of this page intentionally left blank. )
3-2
ARTICLE 4
PROVISIONS FOR PAYMENT
Section 4.01 . Payment of Loan.
(a) Until the principal of and interest on the Bonds is
paid or provision for the payment thereof has been made in
accordance with the Indenture, ten (10) business days preceding
any date on which interest on or principal of the Bonds is to
become due , the Borrower is to pay to the Trustee for the account
of the Issuer in immediately available funds, amounts sufficient
to pay the interest on and principal of the Bonds so about to
become due;
(b) If the Bonds are called for redemption prior to
their respective maturities, ten (10) business days preceding any
date on which any of the Bonds then Outstanding are to be redeemed
during the term of this Loan Agreement, the Borrower is to pay to
the Trustee for the account of the Issuer a sum which, together
with other moneys available therefor in the Bond Fund, will equal
the principal of, redemption premium, if any, and interest on the
Bonds to be redeemed on such date of redemption;
(c) If it becomes necessary for the Trustee to transfer
monies from the Reserve Fund to the Bond Fund to make up any
deficiencies therein, the Borrower is to pay to the Trustee for
the account of the Issuer a sum which will be sufficient to
restore the Reserve Fund to the Required Reserve of $96 ,000 within
one (1) year of such transfer; and
(d) All amounts derived from the investment and
reinvestment of the Bond Fund and Reserve Fund (but only those
amounts in excess of the Required Reserve) pursuant to the
Indenture , may be used to reduce any payments due under this
Section 4.01 . The amount of such moneys on hand on each interest
payment date of the Bonds shall be determined as of that date, and
the payments to come due under this Section 4.01 during the next
succeeding semiannual period may be reduced accordingly at the
direction of the Trustee.
Section 4.02. Deficiency in Bond Fund. If on any
Interest Payment Date or redemption date the amount held by
Trustee in the Bond Fund is insufficient to make the required
payments of principal of, redemption premium, if any, and interest
on the Bonds on such date as described in Section 4.01 hereof,
Borrower shall forthwith pay that deficiency to the Trustee for
deposit in the Bond Fund or a transfer may be made from the
Reserve Fund to make up such deficiency and , in such case, the
Reserve Fund shall be replenished as provided in Section 4.01 (c)
hereof.
4-1
Section 4.03. Trustee's Fees and Expenses. Borrower'
shall pay to Trustee upon presentation of a statement therefor,
the fees and expenses of Trustee. A schedule of fees of the
Trustee is set out in Exhibit B attached hereto .
Section 4.04. Administration Expenses . Borrower shall
pay to Issuer, upon presentation of a statement therefor, the
Administration Expenses which have accrued and become payable.
Section 4.05. Default in Payment of Loan Payments,
Trustee' s Fees or Administration Expenses . In the event Borrower
fails to make any of the payments required by Sections 4.01 , 4.02 ,
4.03 and 4.04 hereof, the item or installment in default shall
continue as an Obligation of Borrower until it shall have been
fully paid and Borrower shall pay the same with interest thereon,
to the maximum extent permitted by law, at an annual rate which
shall be one percent (1%) above the rate of interest then charged
by Trustee on 90-day unsecured commercial loans to its prime
commercial borrowers or at the highest annual rate of interest
payable with respect to any of the Bonds then Outstanding,
whichever is higher.
Section 4.06. Borrower' s Obligations Hereunder Absolute
and Unconditional ; Borrower Remedies . The Obligations of Borrower
shall be absolute and unconditional and shall not be subject to
any defense or any right of set-off, counterclaim or recoupment
arising out of any breach by Issuer of any agreement , covenant ,
representation or warranty, whether hereunder or otherwise , or out
of any indebtedness or liability at any time owing to Borrower.
Nothing herein contained shall be construed to release the Issuer
from the performance of any of its Obligations under this Loan
Agreement , and in the event the Issuer shall fail to perform any
such Obligation, the Borrower may institute such action against
the Issuer as the Borrower may deem necessary or appropriate to
compel such performance , provided that no such action shall
violate the Obligations on the part of the Borrower herein
contained. The Borrower may, however, at its own cost and expense
prosecute or defend any action or proceeding or take any other
action involving third persons which the Borrower deems reasonably
necessary or appropriate in order to secure or protect its right
of possession, occupancy and use of the Project , and in such event
the Issuer hereby agrees to cooperate fully with the Borrower
(without expense to the Issuer) .
(Balance of this page intentionally left blank. )
4-2
ARTICLE 5
PREPAYMENT OF THE LOAN
Section 5.01 . Optional Prepayment of the Loan. Issuer
hereby grants Borrower the option, exercisable at any time, if
permitted under the Indenture, to prepay all or any portion of the
Loan for the prepayment price determined in accordance with
Section 5.04 hereof.
Section 5 .02. Mandatory Prepayment of the Loan Upon
Condemnation, Damage, or Destruction of Project. Borrower shall
prepay the Loan in full prior to the expiration of this Loan
Agreement if all or substantially all of the Project is condemned
(or sold in lieu thereof) or damaged or destroyed and Borrower
does not elect , as evidenced by a certificate delivered to Trustee
within 120 days after the occurrence of such event , to rebuild or
restore the Project. Upon Trustee's receipt of such mandatory
prepayment , this Loan Agreement shall be terminated.
Section 5.03 . Mandatory Prepayment of the Loan Upon
Unenforceability of this Loan Agreement or Upon Exercise of Tender
Option. (a) Borrower shall prepay the Loan in full prior to the
expiration of this Loan Agreement if as a result of any changes in
the Constitution or laws of the State of Colorado or the
Constitution of the United States of America or of legislative or
administrative action (whether state or federal) or of final
decree, judgment or order of any court or administrative body
(whether state or federal) , this Loan Agreement becomes void or
unenforceable or impossible of performance .
(b) The Borrower shall prepay the loan in full prior to
the expiration of this Loan Agreement if any Registered Owner of
the Bonds exercises his or its option to tender (present for
acceptance) any Bond or Bonds to the Trustee pursuant to the
provisions of Section 2.03 of the Indenture .
Section 5.04 Prepayment Price.
(a) In the case of a partial prepayment pursuant to
Section 5 .01 hereof, the prepayment price shall be a sum
sufficient , together with any other funds available for that
purpose, to pay, or redeem and pay, the Bonds affected thereby at
the applicable payment or redemption date and price set forth in
the Indenture as to principal , redemption premium, if any, and
interest to said payment or redemption date;
(b) In the case of prepayment of the entire Loan
pursuant to Sections 5 .01 , 5 .02 or 5.03 hereof, the prepayment
price shall be a sum sufficient , together with any other funds
available for that purpose, to pay, or redeem and pay, all Bonds
then Outstanding under the Indenture at the applicable payment or
redemption price, as to principal , redemption premium, if any, and
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interest to said payment or redemption date all as set forth in'
the Indenture, and to pay all reasonable and necessary fees and
expenses of Trustee and all Administration Expenses accrued and to
accrue through final payment of the Bonds and all other
liabilities of Borrower accrued and to accrue hereunder through
final payment of the Bonds .
Section 5 .05. Notice of Prepayment. In order to
exercise a prepayment option granted in, or to consummate a
mandatory prepayment required by, this Article, Borrower shall
give notice to Issuer and Trustee which shall specify therein the
date of closing of the prepayment or, in the event of a partial
prepayment , the date of the principal prepayment , which dates
shall be not less than forty-five (45) or more than ninety (90)
days from the date the notice is mailed . The failure to give
notice of a prepayment required by Sections 5.02 or 5 .03 hereof
shall not relieve Borrower of its obligation to make such a
prepayment and the date of closing of such prepayment shall be not
less than forty-five (45) or more than ninety (90) days after the
event giving rise to such prepayment, as determined by Borrower
or, if the Borrower shall fail or refuse to make such a
determination , by Trustee.
Section 5 .06. Effect of Defaults on 0?tional Prepay-
ment . The option to prepay granted to Borrower in Section 5 .01
ii of may be exercised whether or not Borrower is in default
hereunder, provided that such default is cured on the date of
closing of such prepayment .
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ARTICLE 6
REPRESENTATIONS
Section 6.01 . Representations by Issuer. The Issuer
represents to Borrower as follows :
(a) The design and plan of the Project contemplate the
acquisition and preparation of the Project Sites , the acquisition,
construction or remodeling and equipping of the Buildings to be
used by the Borrower as mental health care facilities;
(b) In authorizing the Project , the Issuer' s purpose
is , and in its judgment the effect thereof will be, to provide
properties suitable for hospital or health-care facilities ;
(c) The financing of the Project, the issuance and sale
of the Series 1984 Bonds , the execution and delivery of this Loan
Agreement and the Indenture and the performance of all covenants
and agreements of the Issuer contained in this Loan Agreement and
the Indenture and of all other acts and things required under the
Constitution and laws of the State of Colorado to make this Loan
Agreement and the Indenture valid and binding obligations of the
Issuer in accordance with their terms are authorized by the Act
and have been duly authorized by an emergency Ordinance of the
governing body of the Issuer finally adopted at a meeting thereof
duly called and held on June 27 , 1984, by the affirmative vote of
not less than four-fifths (4/5) of its members ;
(d) To finance part or all of the Costs , as presently
estimated , in anticipation of the collection of the revenues
thereof, the Issuer has duly authorized its Series 1984 Bonds in
the principal amount of $650,000 to be issued upon the terms set
forth in the Indenture, under the provisions of which the Issuer' s
interest in this Loan Agreement and the payments due hereunder are
pledged to the Trustee as security for the payment of the
principal of, the interest and premium, if any, on the Bonds ;
(e) The aggregate face amount of the Series 1984 Bonds
is based on estimates of the Costs of the Project furnished by the
Borrower;
(f) The execution and delivery of this Loan Agreement
and the other agreements contemplated hereby to which the Issuer
is a party, including without limitation the Indenture, will not
conflict with, or constitute on the part of the Issuer a breach
of, or a default under, any existing (i) law, or (ii) provisions
of any legislative act , constitution or other proceeding
establishing or relating to the establishment of the Issuer or its
affairs or its resolutions , ordinances , or the Home Rule Charter
thereof, or (iii) agreement , indenture, mortgage , lease or other
instrument to which the Issuer is subject or is a party or by
which it is bound;
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(g) No public servant of the Issuer who is taking part '
in any manner in making this Loan Agreement or any contract
contemplated hereby has a potential interest in this Loan
Agreement or any such contract which has not been disclosed in
accordance with the requirements of state law;
(h) There is not pending or threatened any suit , action
or proceeding against or affecting the Issuer before or by any
court , arbitrator, administrative agency or other governmental
authority which materially and adversely affects the validity, as
to the Issuer, of this Loan Agreement, any of its obligations
hereunder or any of the transactions contemplated hereby.
Section 6.02 . Representations of Borrower. Borrower
hereby represents and warrants to Issuer as follows :
(a) Borrower is a nonprofit corporation duly organized
and in good standing under the laws of the State of Colorado, is
an organization described in Section 5.01 (c) (3) of the Code , is
entitled to own its property in the places where such property is
now owned or leased and is empowered to conduct its business as
now conducted;
(b) Borrower has full power to enter into and perform
its Obligations under this Loan Agreement, the Security Documents
and all other documents contemplated hereby or executed pursuant
hereto. The execution and delivery of this Loan Agreement, the
Security Documents and all other documents contemplated hereby or
executed pursuant hereto and the performance and observance of
their terms , conditions and obligations have been duly authorized
by all necessary action on the part of Borrower. This Loan
Agreement and the Security Documents, and any other agreement
required hereby will constitute, when duly executed and delivered
by Borrower to Issuer or Trustee , valid and binding Obligations of
Borrower enforceable in accordance with their terms;
(c) The execution and delivery of this Loan Agreement ,
and the Security Documents and the consummation of all the
transactions contemplated hereby and thereby, do not and will not
conflict with, or be in contravention of, any law, order, rule or
regulation applicable to Borrower or any agreement or instrument
to which Borrower is a party or by which the Project is bound or
affected, and will not result in the creation of any lien, charge
or encumbrance of any nature upon the Project other than that
contemplated hereby;
(d) The Plans and Specifications and the Project Budget
have been approved by Borrower. The Plans and Specifications have
been approved by all other persons whose review and approval is
necessary;
(e) The acquisition, construction, remodeling or
equipping of the Buildings heretofore performed and completed has
been located on the Project Sites and has been performed in
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accordance with the Plans and Specifications and any protective '
and restrictive covenants thereto applicable . To the best
knowledge of Borrower, there are no structural defects in such
construction or installation and no violation of any applicable
law, rule , regulation or code exists with respect thereto;
(f) Any financial statements of Borrower heretofore
delivered to Issuer are accurate and complete in all respects ,
have been prepared in accordance with generally accepted
accounting principles , fairly represent the financial condition of
Borrower as of the respective dates of such financial statements
and no material adverse change has occurred in the conditions
reflected therein since their respective dates . No additional
material obligations other than those contemplated by this Loan
Agreement have been entered into by Borrower since the date of its
financial statements , other than as disclosed to Issuer in
writing;
(g) There is no material action, suit , legal
proceedings , administrative action or other proceeding pending or
threatened (or, to the best knowledge of Borrower, any basis
therefor) against Borrower or affecting the properties or assets
of Borrower in any court or before any arbitrator of any kind or
before or by any governmental body. Borrower is not in default
with respect to any order of any court , arbitrator or governmental
body, and Borrower is not subject to or a party to any order of
any court or governmental body arising out of any action, suit or
proceeding under any statute or other law respecting antitrust,
monopoly, restraint of trade , unfair competition or similar
matters . For the purposes of this subsection, the term
"governmental body" includes any federal , state, municipal or
other governmental department , commission, hoard , bureau, agency
or instrumentality, domestic or foreign , and the term "order"
includes any order, writ , injunction, decree , judgment , award ,
determination, direction or demand;
(h) Borrower has filed all federal , state and local tax
returns which are required to be filed, if any, and has paid all
taxes shown on such returns and on all assessment notices received
by it to the extent that such taxes and assessments have become
due , except to the extent the same are being contested in good
faith in appropriate proceedings , which have been disclosed in
writing to Issuer, and for which adequate reserves have been
provided. All federal and state income taxes and all other taxes
and assessments of any nature with respect to which Borrower is
obligated have been paid or adequate accruals have been set up
therefor;
(i) Title to all collateral described in the Security
Documents and related documents is (or will be, with respect to
collateral hereafter acquired) vested solely in Borrower, free and
clear of all liens, encumbrances and other claims whatsoever,
except as granted by the Security Documents or as have been
approved in writing by Issuer. Borrower has made no contract or
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arrangement of any kind, the performance of which contract or
arrangement by another party could give rise to a lien on the
Project;
(j) The Plans and Specifications have been submitted to
all governmental authorities whose approval of construction,
remodeling or equipping of the Buildings or the use of the Project
for its intended purpose is required under any applicable law,
statute, rule , regulation or code , and the necessary approvals and
permits have been obtained from such authorities and remain
effective. To the best of Borrower' s knowledge and based upon a
prudent investigation, the construction or installation of the
Project and its intended use have complied with and will comply
with all applicable laws , statutes , rules , regulations and codes,
including without limitation, subdivision regulations , zoning
regulations , building codes , flood plain regulations and
environmental laws and regulations ;
(k) Borrower has examined and is familiar with all
covenants , conditions , reservations , and other restrictions
pertaining to the construction, installation and use of the
Project for its intended purpose and has complied with all such
restrictions ;
(1) There is no default on the part of Borrower under
this Loan Agreement or any document executed by Borrower in
connection herewith and no event has occurred which with notice or
the passage of time or both would constitute a default hereunder
or under any such document ;
(m) All information furnished in any document required
to be furnished by Borrower under or in connection with this Loan
Agreement is accurate and complete in all respects ;
(n) All expenditures made as an item of the Costs of
the Project will be charged to capital or similar accounts of
Borrower for federal income tax purposes, and will not be treated
as an expense , EXCEPT to the extent that treatment of any such
expenditure as an expense for such purposes would neither cause
the Project , or any part thereof, to cease to be a proper
"project ', or part thereof, under the Act , not cause the interest
on the Bonds to be subject to federal or Colorado income taxation,
nor would have caused such result had such treatment been
anticipated at the time of issuance of the Bonds .
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6-4
ARTICLE 7
AFFIRMATIVE COVENANTS OF BORROWER
Until payment or performance in full of all the
Obligations , Borrower shall:
Section 7 .01 . Continuing Existence and Qualification.
Throughout the term of this Loan Agreement , the Borrower will
maintain its existence as a nonprofit corporation organized under
the laws of the State of Colorado and as an organization described
in Section 5.01 (c) (3) of the Code and will not wind-up or
otherwise dispose of all or substantially all of the corporate
assets ; provided that the Borrower may sell or otherwise transfer
to a corporation organized under the laws of one of the United
States , all or substantially all of its corporate assets as an
entirety and thereafter wind-up if (i) the transferee corporation
assumes in writing all of the obligations of the Borrower under
this Loan Agreement , (ii) the transferee corporation is an
organization described in Section 5.01 (c) (3) of the Code, and
(iii) provided written consent is obtained from the Trustee.
Every transferee corporation shall be bound by all of the
covenants and agreements of the Borrower herein with respect to
any further sale or transfer.
Section 7 .02 . Licenses , Qualifications and Accredita-
tion. The Borrower will do all things necessary to obtain and
renew from time to time, as necessary, all permits , licenses and
other governmental approvals necessary for operation of the
Project as a mental health center and to establish and maintain
its status as a provider of mental health care services eligible
for reimbursement under the Medicaid, Blue Cross and equivalent
insurance programs .
Section 7 .03 . Tax Status . The Borrower will not take ,
nor suffer others to take, any action which will alter, change or
impair the status of the Borrower as an organization described in
Section 5 .01 (c) (3) of the Code, but rather will take, or cause
others to take , all action necessary to maintain the status, and
Borrower will not carry on an unrelated trade or business,
determined by applying Section 513(a) of the Code , on, in, or with
respect to the Project if a result thereof would be to cause the
interest payable on the Bonds to become subject to federal income
taxes .
Section 7 .04. Operation, Rates and Charges . The
Project shall be maintained and operated as a mental health care
facility open and available to all persons without discrimination
as to race, color, sex, nationality or religious affiliation and
the Borrower shall not permit the Project to be used primarily for
religious purposes or teaching of any religion. The Borrower
covenants and agrees to use its best efforts to charge such fees
and rates for its facilities and services and to exercise such
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skill and diligence as to provide gross receipts from the Project
sufficient to pay promptly all expenses of operation, maintenance
and repair of the Project and to provide all payments required to
be made by the Borrower under this Loan Agreement. The Borrower
further covenants and agrees that it will from time to time as
often as necessary use its best efforts to revise the rates , fees
and charges in such manner as may be necessary or proper to comply
with the provisions of this Section 7 .04.
Section 7.05 . Performance of Obligations . Duly and
punctually pay or cause to be paid in lawful money of the United
States , the amounts due and payable hereunder, in the place and in
the manner set forth in this Loan Agreement , and perform and
observe all other Obligations of Borrower under this Loan
Agreement , and the Security Documents .
Section 7.06. Inspection. Permit Trustee and Issuer' s
Representative to enter upon and inspect the Project and all
materials to be used in construction thereof; permit them to
examine the Plans and Specifications , all detailed plans and shop
drawings for the Project , and all of Borrower' s books , records ,
contracts and bills with respect to the Project; and cause the
contractors or subcontractors and materialmen to cooperate with
Issuer and Trustee in this regard. Inspection by Issuer' s
Representative and Trustee of construction or installation shall
be for the purpose of protecting the security of the Obligations ,
and such inspection will in no way be construed as an
acknowledgment that the Plans and Specifications have been
complied with, or that the construction or installation is free
from defect or that the Project will be suitable for Borrower' s
purposes or needs .
Section 7 .07. Compliance with Laws . Substantially
comply promptly with all laws , rules , regulations , resolutions ,
ordinances and codes applicable to the construction or
installation of the Project or use of the Project and keep in
effect all permits or approvals obtained in connection therewith.
Section 7 .08. Correction of Defects . Proceed
diligently to correct any defect in the Project or any departure
from the Plans and Specifications not approved by Issuer' s
Representative or Trustee.
Section 7 .09. Accounts and Records . Keep and maintain
full and accurate accounts and records of operations in accordance
with generally accepted accounting principles applicable to
businesses of the type in which Borrower is engaged and consistent
with principles heretofore applied by Borrower and permit Trustee
by its duly authorized agents to inspect such accounts and records
at any reasonable time.
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Section 7 .10. Financial Information. Furnish to Issuer
and Trustee the financial information and certificates required by
Article 11 hereof and such other financial information as the
Trustee may reasonably require.
Section 7.11 . Further Documents . Furnish to Trustee
upon request all other instruments and documents in addition to
those specifically referred to herein as may reasonably be
required from time to time by Trustee.
Section 7 .12 . Notification of Event of Default .
Promptly notify Trustee in writing of the occurrence of (a) any
Event of Default or any event which would become an Event of
Default upon notice or lapse of time or both, (b) any material
adverse change in the business , property, assets , operations or
conditions , financial or otherwise, of Borrower, and (c) the
pendency or threat of any material litigation or arbitration and
of any tax deficiency or other proceeding before any governmental
body or official affecting Borrower.
Section 7 . 13 . Surety Bonds . As promptly as possible
after the filing of a lien against the Project , if the amount
claimed is in excess of $25 ,000, and a written request from
Trustee for the posting of a bond with respect thereto, furnish a
corporate surety bond , in form and with sureties satisfactory to
Trustee.
Section 7 .14. Protection of Project . Protect the
Project and all materials stored on the Project Sites for
installation thereon, from removal , destruction and damage .
Section 7.15. Payment of Taxes, Etc. Duly and
punctually pay and discharge all taxes , assessments and other
charges against Borrower or the Project prior to the date when
they shall become delinquent, and all charges for labor, materials
and supplies which if unpaid might become a lien against any part
of the property of Borrower unless contested in good faith and by
appropriate proceedings .
Section 7. 16 . Debts . Duly and punctually pay principal
and interest on all debt obligations .
Section 7. 17 . Cooperation. Promptly execute any and
all documents and take any and all actions required by Issuer' s
Representative or Trustee, in connection with any action taken or
proposed to be taken by Issuer' s Representative or Trustee .
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7-3
ARTICLE 8
NEGATIVE COVENANTS OF BORROWER
Until payment and performance in full of the
Obligations , Borrower shall not , without the prior written consent
of the Trustee and the Issuer' s Representative:
Section 8 .01 . Alteration of Other Documents . Make or
permit any material change in any of the documents furnished to
Issuer or permit the performance of any work or a change in any
agreement or arrangement which would result in a material change
in any such documents .
Section 8.02. Personalty and Fixtures . Install in the
Buildings any personal property, equipment or fixtures subject to
any existing security agreement other than the Financing
Statement, except as set forth and described in Exhibit A hereto
attached.
Section 8.03 Liens . Create , assume, incur or suffer
to exist any mortgage , pledge, security interest, lien or other
encumbrance upon the Project in an amount in excess of $25 ,000,
except liens for taxes not delinquent or being contested in good
faith, liens in connection with workmen' s compensation
unemployment insurance or social security obligations , mechanics
or materialmen or other such liens arising in the ordinary course
of business for obligations which are not delinquent, and the
security interests created or contemplated in this Loan Agreement
or the Indenture.
Section 8 .04. Value of Project . Do or suffer to be
done any act whereby the value of any part of the Project might be
materially lessened.
Section 8.05 . Existence . Dissolve or otherwise dispose
of all or substantially all of its assets or consolidate with or
merge into another corporation or other entity or permit one or
more other corporations or other entities to consolidate with or
merge into it; provided , however, Borrower may sell or otherwise
transfer to another corporation or other entity all or
substantially all of its assets and thereafter dissolve , or
consolidate with or merge into another corporation, corporations ,
or other entity or permit one or more other corporations or other
entities to consolidate with or merge into it if the surviving,
resulting or transferee corporation or other entity shall be a
corporation incorporated or entity formed and existing under the
laws of one of the states of the United States qualified to do
business in the State of Colorado and assumes in writing all of
the Obligations of Borrower under this Loan Agreement , the
Security Documents and related documents and such resulting or
transferee corporation or other entity is an organization
described in Section 5 .01 (c) (3) of the Code.
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Section 8.06. Suspension or Discontinuance of Payments,
or Termination of Loan Agreement. Suspend or discontinue, or
permit the suspension of discontinuance of, any payments provided
for in this Loan Agreement , or, except as provided in Article 5
hereof, will not terminate this Loan Agreement for any cause
including, without limiting the generality of the foregoing,
failure to complete the Project , any acts or circumstances that
may constitute failure of consideration, destruction of or damage
to the Project , commercial frustration of purpose, any change in
the tax or other laws or administrative rulings of or
administrative actions by the United States of America or the
State of Colorado or any political subdivision of either, or any
failure of the Issuer to perform and observe any agreement ,
whether express or implied, or any duty, liability, or obligation
arising out of or connected with this Loan Agreement , whether
express or implied.
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ARTICLE 9
MAINTENANCE; INSURANCE; DAMAGE; CONDEMNATION
Section 9.01 . Maintenance of and Additions to Project .
During the term of this Loan Agreement , Borrower, at its own
expense , shall maintain, preserve and keep the Project in good
repair, working order and condition and shall from time to time
make all proper repairs , renewals and replacements thereof.
Borrower may, from time to time and at its own expense, make any
additions , modifications or improvement to the Project , if such
additions , modifications or improvements do not impair the
character of the Project as a "project" within the meaning of the
Act or impair the exemption of interest on the Bonds from federal
income taxation. All such additions , modifications and
improvements shall become a part of the Project and shall be
subject to the Mortgage and Security Agreement .
Section 9 .02 Insurance. During the term of this Loan
Agreement , the Borrower agrees to insure or cause to be insured
(i) the Project in an amount equal to the full insurable value on
a replacement cost basis or in an amount equal to the unpaid
principal on the Bonds , whichever is greater, against fire and
extended perils , subject to a deductible in an amount not
exceeding $1 ,000; and (ii) in further amounts , in such manner, and
against such loss , damage and liability (including liability to
third parties) as are customary for a prudent owner of properties
comparable to the Project , whether by means of policies issued by
insurance companies licensed to do business in Colorado , or, at
the Borrower' s option, upon written approval of the Trustee and
Issuer, partially or wholly by means of an adequate self insurance
fund or reserve.
Section 9 .03 Damage, Destruction, Condemnation and Use
of Net Proceeds . (a) Unless Borrower shall be obligated to prepay
the Loan pursuant to Section 5.02 hereof, if the Project or any
portion thereof is destroyed or damaged by fire or other casualty,
Borrower shall promptly repair, rebuild or restore the property
damaged or destroyed to substantially the same condition as
existed prior to such damage or destruction, with such changes,
alterations and modifications as may be desired by Borrower,
provided those changes , alterations and modifications will not
impair the character of the Project as a "project" within the
meaning of the Act or the exemption of interest on the Bonds from
federal income taxation. The repaired , rebuilt or restored
improvements shall be treated as a part of the Project;
(b) Unless the Borrower shall be obligated to prepay
the Loan pursuant to Section 5 .02 hereof, if title to or temporary
use of any part of the Project is taken under the exercise of the
power of eminent domain by any governmental body or by any person,
firm or corporation acting under governmental authority, Borrower
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shall restore the Project by the acquisition of other improvements
suitable for the Borrower's operations , which improvements shall
be treated as part of the Project ;
(c) Unless the Borrower shall be obligated to prepay
the Loan pursuant to Section 5 .02 hereof, Borrower shall use or
cause to be used all Net Proceeds from any insurance payment or
condemnation award received with respect to the Project to repair,
rebuild or restore the Project . Any balance of such Net Proceeds
remaining after payment of all costs of such repair, rebuilding or
restoration shall be paid to Trustee to be held in a separate
trust fund to be applied by Trustee at the direction of Borrower' s
Representative (i) for the optional redemption of Bonds at the
next practicable date, together with accrued interest thereon to
the redemption date, or (ii) for the payment of Bonds on the
mandatory sinking fund redemption date or the maturity date
thereof. The Net Proceeds held in such separate trust fund may
not be invested unless Borrower furnishes Trustee with an opinion
of Bond Counsel to the effect that such investments will not
impair the exemption of interest on the Bonds from federal income
taxation.
Section 9 .04 No Abatement of Loan Payments. Borrower
shall be absolutely and unconditionally obligated to pay the
amounts specified in Article 4 hereof, whether or not the Project
is damaged , destroyed or taken in condemnation and there shall be
no abatement or postponement of any such payments and other
charges by reason thereof.
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ARTICLE 10
ASSIGNMENT, PLEDGING, REDEMPTION
Section 10.01 . Assignment by Borrower. This Loan
Agreement may be assigned by Borrower with the consent of the
Issuer' s Representative, which consent shall not be unreasonably
withheld, subject to the satisfaction of the following conditions :
(a) No assignment (other than pursuant to Section 8 .05
hereof) shall relieve Borrower from primary liability for the
faithful payment , performance and observance of the Obligations,
and the performance of the covenants and agreements set forth in
this Loan Agreement , and the Security Documents and related
documents;
(b) If an Event of Default hereunder or under the
Security Documents has occurred and is continuing, such default is
remedied or cured prior to or on the date of assignment;
(c) An assignee shall assume in writing the Obligations
of Borrower hereunder to the extent of the interest assigned and
Borrower shall, within 30 days after the delivery thereof, furnish
or cause to be furnished to Issuer and Trustee a true and complete
copy of each assumption and assignment;
(d) The assignee shall be an organization described in
Section 5.01 (c) (3) of the Code.
Section 10 .02. Assignment and Pledge by Issuer .
Pursuant to the Indenture , Issuer shall assign its interest in and
pledge any moneys receivable under this Loan Agreement (except
Administration Expenses) to Trustee as security for payment of the
principal of, premium, if any, and the interest on the Bonds.
Borrower hereby consents to such assignment and pledge and
constitutes Issuer' s Representative as its attorney-in-fact for
the limited purposes of executing any documents necessary to
evidence such consent .
Section 10.03. Redemption of Bonds. Upon the agreement
of Borrower to deposit moneys in the Bond Fund in an amount
sufficient to redeem all or any one or more of the Bonds subject
to mandatory or optional redemption, Issuer, at the request of
Borrower, shall forthwith take all steps (other than the payment
of the money required for such redemption) necessary under the
applicable mandatory or optional redemption provisions of the
Indenture to effect redemption of all or part of the then
Outstanding Bonds on the mandatory sinking fund redemption date or
the earliest optional redemption date on which such redemption is
required to or may be made.
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ARTICLE 11
FEDERAL INCOME TAX MATTERS
Section 11 .01 Arbitrage . Borrower hereby covenants
and represents to Issuer for the benefit of each Registered Owner
of the Bonds that it will not make , or permit, any use of the
proceeds of the Bonds in a manner which will cause the Bonds or
any subsequent obligations of Issuer to be treated as arbitrage
bonds within the meaning of Section 103 (c) of the Code. Borrower
further covenants that the original principal amount of the Bonds
has been based on reasonable estimates of the Costs of the Project
at the date of the Bonds . Borrower shall deliver to Issuer and
Trustee certificates in such reasonable form as Issuer shall
request, upon which Issuer and Trustee may rely in making the
covenants and furnishing the certificates required by Section 6 .02
of the Indenture. The Borrower further hereby certifies , warrants
and represents to the Issuer that:
(a) It is reasonably expected that the original
proceeds of the Series 1984 Bonds will not exceed the Costs of the
Project by more than 5% ;
(b) It is reasonably expected that at least 85% of the
spendable proceeds of the Series 1984 Bonds , including investment
proceeds , will be expended to pay the Costs of the Project on or
before the third anniversary of the date of issue of the Series
1984 Bonds ;
(c) The Borrower anticipates substantial completion of
the acquisition, installation or construction of the Project
providing for expenditures equal to the total Cost of the Project
on or about S.,�� ,‘„, / , 1981;
(d) Work on the Project will proceed with due
diligence;
(e) Pursuant to the terms of the Indenture, accrued
interest, if any, received upon the sale of the Series 1984 Bonds
will be applied to the first interest due thereon.
On the basis of the foregoing, the Borrower does not
expect that the proceeds of the Series 1984 Bonds will be used in
any manner that would cause the Series 1984 Bonds to be "arbitrage
bonds" under Section 103 (c) of the Code, and regulations
promulgated thereunder. To the best knowledge and belief of the
Borrower, there are no facts , estimates or circumstances that
would materially change the foregoing conclusion. For the
purposes of this Section 11 .01 , the terms , "date of issue" ,
'original proceeds" , "spendable proceeds" , "substantial binding
obligation to commence", "proceeds" and "investment proceeds
11-1
shall have such meaning as is provided in the applicable •
regulations promulgated by the Department of the Treasury ,
pursuant to Section 103 (c) of the Code .
The Issuer and the Borrower jointly and severally
covenant and obligate themselves to comply throughout the term of
the issue of the Series 1984 Bonds with the requirements of
Section 103(c) of the Code , and any regulations promulgated
thereunder.
(Balance of this page intentionally left blank. )
11-2
ARTICLE 12
EVENTS OF DEFAULT AND REMEDIES
Section 12 .01 . Events of Default. The occurrence of
any one or more of the following events , or existence of one or
more of the following conditions , with respect to Borrower shall
constitute an Event of Default under this Loan Agreement .
(a) Delay by Borrower in the payment when due of any
amounts required to be paid under this Loan Agreement;
(b) Any representation or warranty made in writing to
Issuer herein or in connection with the making of the Loan, or any
certificate , statement or report made in compliance with this Loan
Agreement , by Borrower, or any contractor shall prove at any time
to have been incorrect in any material respect when made , or in
this Loan Agreement , after notice thereof as provided in Section
8 .12 (a) of the Indenture, and the same is not corrected within the
appropriate period as set forth in said Section 8.12 (a) of the
Indenture;
(c) There shall occur a default or event of default
under the terms of the Security Documents or any other document
executed in connection herewith (other than a default which
constitutes a separate and distinct Event of Default under the
terms of this Loan Agreement) which shall not be remedied within
ten (10) days after notice thereof to Borrower by the Trustee or
Issuer, unless the Issuer and the Trustee shall agree in writing
to an extension of such time prior to its expiration, or for such
longer period as may be reasonably necessary to remedy such
default provided that the Borrower is proceeding with reasonable
diligence to remedy the same;
(d) Borrower shall make an assignment for the benefit
of creditors , file a petition in bankruptcy, be adjudicated
insolvent or bankrupt or admit in writing the inability to pay its
debts as they mature, petition or apply to any tribunal for the
appointment of a receiver or any trustee or similar officer for
Borrower or a substantial part of the assets of Borrower, or shall
commence any proceeding under any bankruptcy, reorganization,
arrangement , readjustment of debt , dissolution or liquidation law
or statute of any jurisdiction, whether now or hereafter in effect
or if there shall have been filed any such petition or
application, or any such proceeding shall have been commenced
against Borrower, which remains undismissed for a period of thirty
(30) days or more; or Borrower by any act or omission shall
indicate its consent to, approval of or acquiescence in any such
petition, application or proceeding, or the appointment of a
receiver of or any trustee or similar officer for Borrower or any
substantial part of any of the properties of Borrower, or shall
suffer any such receivership or trusteeship to continue
undischarged for a period of thirty (30) days or more; or any
12-1
judgment , writ, warrant or attachment or execution or similar '
process shall be issued or levied against a substantial part of
the property of Borrower and such judgment, writ, or similar
process shall not be released , vacated or fully bonded within
sixty (60) days after its issuance or levy;
(e) Any action shall be taken by any governmental
authority which would materially and adversely affect the use or
occupation of the Project for its intended purpose and such action
shall not have been reversed or remedied within a period of thirty
(30) days from the taking thereof;
(f) A lien or other encumbrance, if the amount claimed
is in excess of $25 ,000, shall be filed against the Project or any
other security for the Loan and the same shall not have been
removed or Borrower shall not have posted adequate security
therefor within ten (10) days after the filing thereof;
(g) Any contractor shall make an assignment for the
benefit of creditors , file a petition in bankruptcy or be
adjudicated insolvent or bankrupt , and Borrower shall fail to
procure a contract with a new contractor satisfactory to the
Trustee within forty-five (45) days thereafter;
(h) Borrower shall materially default under a contract
with any contractor;
(i) Borrower shall materially fail to pay or perform
any other of the Obligations within ten (10) days after notice the
same are due;
(j) This Loan Agreement or the Security Documents shall
at any time for any reason cease to be in full force and effect or
shall be declared to be null and void , or the validity or
enforceability hereof or thereof shall be contested by Borrower,
or Borrower shall deny that it has any or further liability or
obligation hereunder or thereunder.
Section 12 .02. Remedies . (a) Upon the occurrence of
an Event of Default and at any time thereafter, Trustee shall be
under no further obligation to take any action with respect to
this Loan Agreement . Trustee may declare an amount equal to the
principal and all accrued interest on the Bonds and other amounts
payable hereunder to be immediately due and payable without
presentment , demand , protest or other notice of any kind all of
which are expressly waived by Borrower. Trustee may proceed with
every remedy available at law or equity or provided for herein or
in any document executed in connection herewith, and all expenses
incurred by Trustee in connection with any remedy shall be deemed
indebtedness of Borrower to Issuer and a part of the Obligations.
Any amounts collected under this Section, together with any amount
Issuer or Trustee may collect from the proceeds from any
collateral for the Loan or from any other source against any of
12-2
the Obligations , shall be paid into the Bond Fund and applied in '
accordance with the terms of the Indenture and this Loan
Agreement;
(b) Without limiting the foregoing, subject to the
provisions of Section 8.12 of the Indenture except with respect to
a default under Subsection 12.01 (a) hereof, upon the occurrence
of an Event of Default hereunder Trustee shall have the right to
take possession of the Project and perform any and all work it
deems advisable or necessary to protect the Project. Borrower
hereby irrevocably constitutes and appoints Trustee its attorney-
in-fact with full power and authority upon the occurrence of an
Event of Default to :
(i) Take possession of and protect the Project;
(ii) Pay, settle or compromise all existing
invoices , charges and claims relating to the Project as
Trustee deems necessary for clearance of title to the Project
for protection of its interests;
(iii) Prosecute and defend all actions and
proceedings in connection with the Project and to apply the
proceeds of any judgment received by Borrower in any such
action against any of the Obligations as it sees fit; and
(iv) Execute, acknowledge and deliver all
instruments and documents in the name of Borrower and do and
perform all acts in the name of Borrower which Trustee deems
necessary or appropriate to protect the Project;
(c) Nothing contained in this Section shall prohibit
Trustee from changing the Plans and Specifications to effect a
reduction of the costs of any item therein when in the exercise of
reasonable judgment Trustee determines that such action is
necessary to provide for the sale of all or portions of the
Project;
(d) No delay or failure of the Trustee in the exercise
of any right or remedy provided for hereunder shall be deemed a
waiver of the right by Trustee and no exercise or partial exercise
or waiver of any right or remedy shall be deemed a waiver of any
further exercise of such right or remedy or of any other right or
remedy which Trustee may have. The enforcement of any rights of
Trustee as to any security for the Loan shall not affect the
rights of Trustee to enforce payment of the Loan and to recover
judgment for any portion thereof remaining unpaid . The rights and
remedies herein expressed are cumulative and not exclusive of any
right or remedy which Trustee shall otherwise have.
12-3
ARTICLE 13
MISCELLANEOUS
Section 13 .01 . Notices . All notices , certificates or
other communications required to be given to any party pursuant to
any provision of this Loan Agreement shall be in writing, shall be
given by certified or registered mail and shall be deemed received
two days after having been deposited in the United States mail ,
postage prepaid , addressed as follows:
(a) If to Issuer, County of Weld
P. 0. Box C
Greeley, Colorado 80632
Attn: County Clerk
With copy to County Attorney
(b) If to Borrower, Weld Mental Health Center, Inc .
1306 11th Avenue
Greeley, Colorado 80631
Attn: Executive Director
(c) If to Trustee , United Bank of Greeley
1000 10th Street
Greeley, Colorado 80631
Attn: Corporate Trust Division
Section 13 .02 . Binding Effect . Except as provided
herein, this Loan Agreement shall inure to the benefit of and
shall be binding upon Issuer, Borrower and their respective
successors and assigns and is intended to be the entire agreement
between the parties hereto.
Section 13 .03 . Severability. In the event any
provision of this Loan Agreement shall be held invalid or
unenforceable by any court of competent jurisdiction, such holding
shall not invalidate or render unenforceable any other provision
hereof and this Loan Agreement shall remain in full force and
effect .
Section 13 .04. Amount Remaining in Bond Fund. Subject
to Subsection 3.10 of the Indenture , it is agreed by the parties
hereto that any amounts remaining in the Bond Fund or Reserve Fund
upon expiration of this Loan Agreement , and after payment in full
of the fees , charges and expenses of Trustee in accordance with
the Indenture, the Administration Expenses and all other amounts
required to be paid under this Loan Agreement and the Indenture ,
shall belong to and be paid to Borrower by Trustee.
Section 13.05 . Authority of Borrower' s Representative.
Whenever under the provisions of this Loan Agreement the approval
of Borrower is required , or Issuer is required to take some action
at the request of Borrower, such approval or such request shall be
13-1
made by Borrower' s Representative unless otherwise specified in '
this Loan Agreement , and Issuer or Trustee shall be authorized to
act on any such approval or request.
Section 13.06. Authority of Issuer's Representative .
Whenever under the provisions of this Loan Agreement the approval
of Issuer is required, or Borrower is required to take some action
at the request of Issuer, such approval or such request shall be
made by the Issuer' s Representative unless otherwise specified in
this Loan Agreement, and Borrower or Trustee shall be authorized
to act on such approval or request.
Section 13 .07 . Indemnity. The Borrower will pay, and
will protect , indemnify and save the Issuer and Trustee harmless
from and against all liabilities , losses , damages , costs , expenses
(including reasonable attorneys ' fees) , causes of action, suits,
claims, demands and judgments of any nature arising from:
(a) any injury to or death of any person or damage to
property in or upon the Project or growing out of or connected
with the use, non-use, condition or occupancy of the Project or a
part thereof;
(b) violation of any agreement or condition of this
Loan Agreement , except by the Issuer;
(c) violation of any contract , agreement or restriction
by the Borrower relating to the Project which shall have existed
at the time of the making of the Loan;
(d) violation of any law, ordinance or regulation
affecting the Project or a part thereof or the ownership,
occupancy or use thereof;
(e) any statement or information relating to the
expenditure of the proceeds of the Bonds contained in the
"Certificate As To Amount and Use Of Bond Proceeds" or similar
document furnished by the Borrower to the Issuer which, at the
time made , is misleading, untrue or incorrect in any material
respect;
(f) any statement or information concerning the
Borrower, its properties and officers or its subsidiaries or the
Project , contained in the final official statement or prospectus
furnished to purchasers of the Bonds , that is untrue or incorrect
in any material respect , and any omission from such official
statement or prospectus of any statement or information which
should be contained therein for the purpose for which the same is
to be used or which is necessary to make the statements therein
concerning the Borrower, its properties and officers and its
subsidiaries or the Project not misleading in any material
respect , provided that:
13-2
(i) the final official statement or prospectus is '
approved in writing by the Borrower;
(ii) in the event of settlement of any litigation
commenced or threatened, arising from a claim based upon any
such untrue statement or omission, such indemnity shall be
limited to the aggregate amount paid under a settlement
effected with the written consent of the Borrower which
consent shall not be unreasonably withheld;
(iii) such indemnity shall extend to each elective and
appointive officer of the Issuer;
(iv) the Issuer shall promptly notify the Borrower in
writing of any claim or action brought against the Issuer or
any officer or controlling person as aforesaid , in respect of
which indemnity may be sought against the Borrower, setting
forth the particulars of such claim or action, and the
Borrower will assume the defense thereof, including the
employment of counsel and the payment of all expenses ; and
(v) the Issuer or any such officer may employ separate
counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall not
be payable by the Borrower unless such employment has been
specially authorized by the Borrower;
(g) violation of any state or federal securities laws
in the issuance or sale of the Bonds.
Section 13 .08 . Amendments . No term or provision of
this Loan Agreement may be amended, modified, revoked,
supplemented , waived or otherwise changes except by a written
instrument executed by the party to be charged with such
amendment , modification, revocation, supplement , waive or change .
Section 13 .09 . Execution in Counterparts . This Loan
Agreement may be executed in several counterparts , each of which
shall be an original and all of which shall constitute but one and
the same instrument.
Section 13 .10. Governing Law. This Loan Agreement
shall be governed and construed in accordance with the laws of the
State of Colorado.
Section 13 .11 . Captions . The captions and headings in
this Loan Agreement are for convenience only and no way define,
limit or describe the scope or intent of any provisions or
sections of this Loan Agreement .
Section 13 .12. No Pecuniary Liability of Issuer. No
provision, covenant or agreement contained in this Loan Agreement
or any obligations herein imposed upon Issuer, or the breach
thereof, shall constitute or give rise to a pecuniary liability of
13-3
_n_..._ .
Issuer or a charge against its general credit or taxing powers . '
In making the agreements , provisions and covenants set forth in
this Loan Agreement, Issuer has not obligated itself except with
respect to the application of the revenues , income and all other
property derived pursuant to this Loan Agreement .
Section 13 .13 . Counting of Days . The term "days" when
used herein means calendar days . If any time period ends on a
Saturday, Sunday or holiday, officially recognized by the State of
Colorado or Trustee, the period shall be deemed to end on the next
succeeding business day.
Section 13 .14. Term. This Loan Agreement shall remain
in full force and effect from the date hereof and shall continue
in effect so long as (a) any Bonds are Outstanding or (b) Trustee
shall hold any moneys under Article Seven of the Indenture,
whichever is later. All representations and certifications by
Borrower as to all matters affecting the tax exempt status of the
Bonds shall survive the termination of this Loan Agreement .
(Balance of this page intentionally left blank. )
13-4
IN WITNESS WHEREOF, Issuer and Borrower have caused this
Loan Agreement to be executed in their respective names by their
duly authorized officers and have caused their respective
corporate seals to be hereunto affixed and attested by their duly
authorized officers , all as of the date first above written.
( S E A L )
ATTESTED AND COUNTERSIGNED: COUNTY OF WELD
STATE OF COLORADO
By ! /J - — 41) BY > _ e..A" a-/-
Co my C er an Recor er Chairman, Board of County
Commissioners
APPROVED• '
ssi nt o nt ttorney
( S E A L ) WELD MENTAL HEALTH CENTER, INC.
a Colorado Nonprofit Corporation
Attested:
By oOD> B3= , (1-. ci . ( 1�Ldr t,
e etary � `/ es ident
ACKNOWLEDGMENT OF ASSIGNMENT
UNITED _ :ANK OF GREELEY
Secure. Party
( S E A L ) By A/11G
ts : // 1 ' LGt /Cz,,
Attested: /
- 2 -
STATE OF COLORADO )
) ss .
COUNTY OF WELD )
The foregoing instrument was acknowledged before me this
,?/ —- day of July, 1984, by Norman Carlson, as Chairman of WELD
COUNTY, STATE OF COLORADO, by Lee Morrison, as Assistant County
Attorney of said COUNTY, and by Mary Ann Feuerstein, as County
Clerk and Recorder of said COUNTY.
Notary Public
( S E A L )
My commission expires : , -
STATE OF COLORADO )
) ss .
COUNTY OF WELD )
The foregoing instrument was acknowledged before ,me this
day of July, 1984, by ,4a. / .7- c
, as President and 41.0nye/%,., e e /ape
, as Secretary of Weld Mental Health Center,
Inc. , a Colorado Nonprofit Corporation.
Notary Public
( S E A L )
My commission expires : e. ✓' �% j
- 3 -
STATE OF COLORADO )
) ss.
COUNTY OF WELD )
The foregoing instrument as acknowledged before me this
._V.P J,day of July, 1984, by — f t.sv..i , as
5 2 ✓ P 94_7 v,7- ern and y cr,-4-.i e_ / 1z e r
as VP Y- TO of United Bank of
Greeley, as Secured Party.
Notary Public
( S E A L )
My commission expires : ;,/ , '
- 4 -
EXHIBIT A
(Attach Legal Description of the Project Site
and of the Buildings and any personal
property, equipment and fixtures . )
- 5 -
EXHIBIT "B"
SCHEDULE OF TRUSTEE FEES
MENTAL HEALTH FACILITIES REVENUE BOND
(1). Set Up Fee (Includes Issuance of Bonds) $800.00
(2) Construction Fund
Base Annual Fee $200.00
Each Construction Che Issued $ 25.00
(3) . Bond Fund
Base Annual Fee $100.00
Each Registered Bond .50
Each Interest Check 1.00
Minimum Each Interest Payment Date 100.00
If Wire Transfer Used Lieu of Check-
Per Transfer 8.00
Each Bond Transferred x.00
Each Interest Adjustment. 75.00
Each Bond Paid 3.00
Minimum Each Principal Payment Date 50.00
(4) . Reserve Fund
Base Annual Fee $300.00
Each Investment in Excess of 6/year 15.00
Each 0;her Transaction in Excess of 50/year 2.00
County of Weld, State of Colorado
Mental Health Facilities Revenue Bonds
(Weld Mental Health Center)
Series 1984 - $650 ,000
PROJECT CERTIFICATE AND CONSTRUCTION STATEMENT
The undersigned hereby certifies as follows :
1 . The Project as defined in the Loan Agreement, dated as
of July 1 , 1984, (the Loan Agreement) , between Weld County,
Colorado (the County) and Weld Mental Health Center, Inc. ()the
Borrower) , to be acquired , constructed, installed and equipped by
the Borrower pursuant to the Loan Agreement will consist of the
acquisitioning, remodeling and equipping of facilities the
Borrower currently occupies and the acquisitioning, remodeling
and equipping of additional existing facilities to be used to
provide mental health services .
The acquisition, remodeling and equipping of the Project is
expected to be completed on or about S_j14aw-1.,.- I 1984(.
3 . The maximum total amount of interest to be paid by the
Borrower during the period of acquisition, remodeling and
installation of the Project to finance the costs therefor
including interest on the Series 1984 Bonds is estimated to be
$ 3/3? .
(Balance of this page intentionally left blank. )
5 . All costs incurred and to be incurred and financed with '
the proceeds from the sale of the Bonds in constructing the
Project are as follows :
(a) Acquisition of Facilities $ f7Cs'f6 "
(b) Remodeling & Equipping $ 36 `c
(c) Legal Fees $ (j 76
(d) Title Insurance $ ,2eco
(e) Financial Advisor Fees $/j')-C, "
(f) Other $ /ooc,p
TOTAL PROJECT COST $650 ,000
6 . The bond proceeds in the amount of $650,000 is the
source of a portion of the funds to pay the total cost described
in the preceding paragraph hereof.
WITNESS my hand, this .h'/4-f day of July, 1984 .
WELD MENTAL HEALTH CENTER, INC,
A Colorado Nonprofit Corporation
Borrow rs Representative
EXHIBIT C
(Attach copy of IRS Section 501 (c) (3) letter)
CERTIFICATE DESIGNATING BORROWER'S REPRESENTATIVE
County of Weld, State of Colorado
Mental Health Facilities Project
Series 1984 - $650 ,000
Weld Mental Health Center, Inc. (the Borrower) , under a Loan
Agreement dated as of the date of delivery of the Series 1984
Bonds , between the Borrower and the above-named County, does
hereby designate the following named person(s) :
Specimen
Name Title Si nature
1 . Arlyce M. Trossen Business Mgr.
2 . Dale F. Peterson Executive Dir.
as (1) Borrower' s Representative and, if named above , (2) as
alternate Borrower' s Representative , to act on behalf of the
Borrower in providing certification for payment of Costs of the
Project to United Bank of Greeley, as trustee and certification
as to completion and to do all other things required or permitted
to he done as Borrower' s Representative under said Loan Agreement
on behalf of the Borrower.
WITNESS my hand this . K // day of July, 1984 .
( S E A L ) WELD MENTAL HEALTH CENTER, INC .
..- /4 ry��-•�.. ,1 // c c4`/
Pres ide1ht
ATTEST:
ec e
Weld ntal Health Ce r, Inc.
INDENTURE OF TRUST
BETWEEN
WELD COUNTY, COLORADO
and
UNITED BANK OF GREELEY, GREELEY, COLORADO
Trustee
Dated as of July 1 , 1984
Mental Health Facilities Revenue Bonds
(Weld Mental Health Center Project)
TABLE OF CONTENTS
(Not a Party of This Indenture)
Page
PARTIES 1
RECITALS 1
GRANTING CLAUSES 2
ARTICLE ONE - DEFINITIONS 1-1
Section 1 .01 . Definitions 1-1
Section 1 .02 . Exhibits 1-2
Section 1 .03. Rules of Interpretation 1-3
Section 1 .04. Compliance Certificates and Opinions 1-4
Section 1 .05. Form of Documents Delivered to
Issuer or Trustee 1-5
Section 1 .06. Limitation on Issuer Liability 1-5
ARTICLE TWO - AUTHORIZATION, TERMS , EXECUTION,
FORM AND ISSUANCE OF BONDS 2-1
Section 2.01 . Authorized Amount of the Bonds 2-1
Section 2 .02 . All Bonds Equally and Ratably Secured;
Bonds Not an Obligation of Issuer 2-1
Section 2 .03. Authorization of Bonds 2-1
Section 2.04. Execution of Bonds, Signatures 2-4
Section 2 .05. Form of Series 1984 Bonds , and
Trustee' s Certificate of
Authentication 2-4
Section 2 .06 . Persons Treated as Owners 2-14
Section 2 .07. Lost , Stolen, Destroyed and
Mutilated Bonds 2-14
Section 2.08. Delivery of the Bonds 2-14
Section 2 .09 . Trustee ' s Authentication Certificate 2-16
Section 2 .10. Cancellation and Destruction of
Bonds by the Trustee 2-16
Section 2 .11 . Issuance of Additional Bonds 2-16
Section 2 .12. Registration, Transfer and Exchange
of Bonds 2-17
Section 2 .13 . Interest Rights Preserved; Dating
of Registered Bonds 2-18
ARTICLE THREE - REVENUES AND FUNDS 3-1
Section 3.01 . Source of Payment of Bonds 3-1
Section 3 .02 . Deposit of Series 1984 Bond Proceeds 3-1
Section 3.03. Creation of the Bond Fund 3-1
Section 3.04. Payments into the Bond Fund 3-1
Section 3.05. Use of Moneys in the Bond Fund 3-2
Section 3.06. Custody of the Bond Fund 3-2
i
Section 3.07 . Creation of the Reserve Fund 3-2 .
Section 3 .08. Payments into the Reserve Fund 3-3
Section 3.09. Creation of Construction Fund 3-3
Section 3.10. Disbursements from the Construction
Fund 3-3
Section 3.11 . Completion of Project if Construction
Fund Insufficient 3-4
Section 3.12. Trustee ' s Fees, Charges and Expenses 3-5
Section 3 .13. Moneys to be Held in Trust 3-5
Section 3.14. Insurance and Condemnation Proceeds 3-5
Section 3. 15. Repayment to Borrower from
the Bond Fund 3-5
ARTICLE FOUR - COVENANTS OF THE ISSUER 4-1
Section 4.01 . Performance of Covenants , Authority 4-1
Section 4.02 . Instruments of Further Assurance 4-1
Section 4.03. Payment of Principal, Redemption
Premium, if any, and Interest 4-1
Section 4.04. Recordation 4-1
Section 4.05. Rights Under the Loan Agreement 4-2
ARTICLE FIVE - REDEMPTION OF BONDS 5-1
Section 5 .01 . Mandatory Redemption of Bonds 5-1
Section 5.02 . Optional Redemption of Bonds 5-1
Section 5 .03 . Partial Redemption of Bonds 5-1
Section 5.04. Notice of Redemption 5-2
Section 5.05. Bonds Due and Payable on Redemption
Date; Interest Ceases to Accrue 5-2
Section 5 .06. Cancellation 5-3
ARTICLE SIX - INVESTMENTS 6-1
Section 6 .01 . Investment of Bond Fund ,
Construction Fund and Reserve
Fund Moneys 6-1
Section 6.02 . Arbitrage 6-1
ARTICLE SEVEN - DISCHARGE OF LIEN 7-1
Section 7.01 . Discharge of the Lien 7-1
ARTICLE EIGHT - DEFAULT AND REMEDIES 8-1
Section 8.01 . Events of Default 8-1
Section 8 .02 . Remedies on Occurrence of Events
of Default 8-1
Section 8.03 . Majority of Bondholders may Control
Proceedings 8-2
Section 8.04. Rights and Remedies of Bondholders 8-2
Section 8.05. Application of Moneys 8-3
Section 8.06. Trustee May Enforce Rights
Without Bonds 8-5
ii
Section 8.07. Trustee to File Proofs of Claim
in Receivership, Etc 8-5
Section 8.08. Delay or Omission No Waiver 8-6
Section 8.09. No Waiver of One Default to
Affect Another 8-6
Section 8.10. Discontinuance of Proceedings on
Default ; Position of Parties Restored. 8-6
Section 8.11 . Waivers of Events of Default 8-6
Section 8.12. Notice of Default; Opportunity to
Cure Defaults 8-7
ARTICLE NINE - CONCERNING THE TRUSTEE 9-1
Section 9.01 . Duties of Trustee 9-1
Section 9.02. Fees and Expenses of the Trustee 9-4
Section 9 .03 . Resignation or Replacement of Trustee 9-4
Section 9.04. Conversion, Consolidation or
Merger of Trustee 9-5
Section 9.05. Trustee Protected in Relying Upon
Resolutions , Etc 9-5
ARTICLE TEN - SUPPLEMENTAL INDENTURES AND AMENDMENTS OF
THE LOAN AGREEMENT AND GUARANTY AGREEMENT 10-1
Section 10.01 . Supplemental Indentures Not Requiring
Consent of Bondholders 10-1
Section 10.02. Supplemental Indentures Requiring
Consent of Bondholders 10-1
Section 10.03. Execution of Supplemental Indenture 10-3
Section 10 .04. Consent of Borrower 10-3
Section 10.05. Amendments, Etc . , of the Loan
Agreement Not Requiring Consent
of the Bondholders 10-3
Section 10.06 . Amendments , Etc . , of the Loan
Agreement Requiring Consent of the
Bondholders 10-3
ARTICLE ELEVEN - MISCELLANEOUS 11-1
Section 11 .01 . Evidence of Signature of Bondholders
and Ownership of Bonds 11-1
Section 11 .02 . Disclaimer of General Liability 11-1
Section 11 .03. Parties Interested Herein 11-1
Section 11 .04. Titles , Headings , Etc 11-2
Section 11 .05. Severability 11-2
Section 11 .06 . Governing Law 11-2
Section 11 .07. Execution in Counterparts 11-2
Section 11 .08. Notices 11-2
Section 11 .09. Payments Due on Holidays 11-3
SIGNATURES 4, 5
EXHIBIT A Desription of Project Sites and Buildings 6
EXHIBIT B Schedule of Trustee' s Fees 7
INDENTURE OF TRUST dated as of July 1 , 1984, and
actually executed on the C51 day of July, 1984, between the
COUNTY OF WELD, STATE OF COLORADO, a County duly organized and
existing under the Constitution and laws of the State of
Colorado, and United Bank of Greeley, having an office and
principal place of business in Greeley, Colorado, duly organized
and existing under the laws of the State of Colorado, as Trustee,
being authorized to accept and execute trusts of the character
herein set out .
RECITALS
WHEREAS , the County of Weld in the State of Colorado
(the "Issuer") is authorized by title 29 , article 3, Colorado
Revised Statutes (the "Act") , to finance one or more projects and
to issue its revenue bonds therefor to be payable out of the
revenues derived from the financing of such projects ; and
WHEREAS, The Act provides that title to or in the
project may at all times remain in the user of the project ; and
WHEREAS , Weld Mental Health Center, Inc. , a Colorado
nonprofit corporation (the "Borrower") intends to acquire,
remodel and equip facilities it currently occupies and acquire ,
remodel and equip additional existing facilities (collectively
the "Project") , and to borrow from Issuer funds to defray the
cost of financing the Project ; and
WHEREAS , Issuer proposes to finance the Project
pursuant to a Loan Agreement of even date herewith (the "Loan
Agreement") and to issue therefor its "Weld County, State of
Colorado, Mental Health Facilities Revenue Bonds (Weld Mental
Health Center Project) Series 1984" in the aggregate principal
amount of $650,000 (the "Bonds") to be issued under and secured
by this Indenture of Trust (the "Indenture") and further secured
by a Combination Mortgage and Security Agreement and certain
other Security Documents as defined in Section 1 .01 of the Loan
Agreement; and
WHEREAS , all Bonds issued under this Indenture will be
secured by a pledge of the Loan Agreement, the Combination
Mortgage and Security Agreement , and certain other Security
Documents and a pledge of the revenues and receipts derived by
Issuer pursuant to the Loan Agreement , and neither the Bonds nor
the interest thereon shall ever constitute the debt or
indebtedness of Issuer within the meaning of any provision or
limitation of the Constitution or statutes of the State of
Colorado and shall not constitute nor give rise to a pecuniary
liability of Issuer, or a charge against its general credit or
taxing powers ; and
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WHEREAS, all things necessary to make the Bonds , when
authenticated by the Trustee and issued as in this Indenture
provided , the valid, binding and legal obligations of the Issuer
and to constitute this Indenture a valid, binding and legal
instrument for the security of the Bonds in accordance with its
terms , have been done and performed;
NOW, THEREFORE, THIS INDENTURE OF TRUST WITNESSETH:
GRANTING CLAUSES
That the Issuer, in consideration of the premises and
of the mutual covenants herein contained and of the purchase and
acceptance of the Bonds by the Registered Owners thereof and the
sum of One Dollar to it duly paid by the Trustee at or before the
execution and delivery of these presents , and for other good and
valuable consideration, the receipt of which is hereby
acknowledged, in order to secure the payment of the principal of,
redemption premium, if any, and interest on the Bonds at any time
Outstanding under this Indenture , according to their tenor and
effect, and to secure the performance and observance of all the
covenants and conditions in the Bonds and herein contained, and
to declare the terms and conditions upon and subject to which the
Bonds are issued and secured , has executed and delivered this
Indenture and has granted , bargained , sold, warranted, aliened ,
remised, released, conveyed, assigned, pledged, set over and
confirmed, and by these presents does grant, bargain, sell ,
warrant, alien, remise, release, convey, assign, pledge, set over
and confirm unto United Bank of Greeley, as Trustee, and to its
successors and assigns forever, all and singular the following
described property, franchises and income :
A. The rights of Issuer under and pursuant to the
Loan Agreement (except the rights of the Issuer under Sections
4.04 and 13.07 of the Loan Agreement) .
B. The Security Documents described in the Loan
Agreement.
C. All revenues and receipts (except Administration
Expenses and payments pursuant to Section 13.07 of the Loan
Agreement) receivable by or on behalf of Issuer pursuant to the
Loan Agreement including, without limitation, all payments to be
received by Issuer pursuant to the Loan Agreement and pursuant to
the terms of which payments are to be paid directly to the
Trustee for the account of Issuer.
TO HAVE AND TO HOLD the same with all privileges and
appurtenances hereby conveyed and assigned, or agreed or intended
to be, to the Trustee and its successors in said trust and
assigns forever;
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IN TRUST, NEVERTHELESS , upon the terms herein set forth .
for the equal and proportionate benefit, security and protection
of all Registered Owners of the Bonds issued under and secured by
this Indenture without privilege, priority or distinction as to
the lien or otherwise of any of the Bonds over any other of the
Bonds ;
PROVIDED, HOWEVER, that if the Issuer, its successors
or assigns , shall well and truly pay, or cause to be paid, the
principal of the Bonds , the redemption premium, if any, and the
interest due or to become due thereon, at the times and in the
manner provided in the Bonds , according to the true intent and
meaning thereof, and shall cause the payments to be made into the
Bond Fund as hereinafter required or shall provide, as permitted
hereby, for the payment thereof by depositing with the Trustee
the entire amount due or to become due thereon, or certain
securities as herein permitted and shall well and truly keep ,
perform and observe all the covenants and conditions pursuant to
the terms of this Indenture to be kept, performed and observed by
it , and shall pay or cause to be paid to the Trustee all sums of
money due or to become due to it in accordance with the terms and
provisions hereof, then upon such final payments this Indenture
and the rights hereby granted shall cease, determine and be void;
otherwise this Indenture shall be and remain in full force and
effect.
THIS INDENTURE FURTHER WITNESSETH and it is expressly
declared, that all Bonds issued and secured hereunder are to be
issued, authenticated and delivered and all said property,
rights, interests , revenues and receipts hereby pledged and
assigned are to be dealt with and disposed of under, upon and
subject to the terms , conditions , stipulations , covenants ,
agreements , trusts, uses and purposes as hereinafter expressed,
and the Issuer has agreed and covenanted, and does hereby agree
and covenant , with the Trustee and with the respective Registered
Owners , from time to time , of the Bonds as follows:
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ARTICLE ONE
DEFINITIONS
Section 1 .01 . Definitions . All words and phrases
defined in Article 1 of the Loan Agreement shall have the same
meaning in this Indenture. In addition, the following terms ,
except where the context indicates otherwise, shall have the
respective meanings set forth below:
Additional Bonds : any Bonds issued pursuant to and in
accordance with Section 2.11 hereof.
Adjusted Interest Rate: the interest rate borne by the
Bonds as adjusted pursuant to the provisions of Section 2.03
hereof.
Board of County Commissioners: the Board of County
Commissioners of the Issuer.
Bond Counsel : a Person engaged in the practice of law
and nationally recognized as experienced in the matters relating
to the issuance by states or their political subdivisions of
tax-exempt obligations selected by the Issuer and acceptable to
the Borrower.
Bond Fund: the fund created by Section 3 .03 hereof.
Bond Ordinance : the Ordinance finally passed and
adopted by the Board of County Commissioners on or about June 27 ,
1984, authorizing the issuance of the Series 1984 Bonds.
Bond Register : the register maintained by the Trustee
pursuant to Section 2.12 hereof.
Bonds : all bonds issued pursuant to this Indenture,
including the Mental Health Facilities Revenue Bonds (Weld Mental
Health Center Project) Series 1984, issued by Weld County, State
of Colorado and any Additional Bonds issued pursuant hereto.
Buildings : those certain buildings and all other
facilities and improvements forming a part of the Project ,
exclusive of leased equipment , which are located on the Project
Sites as of the date hereof and all other buildings , structures
and improvements hereafter located on the Project Sites , as they
may at any time exist and are described in Exhibit "A" attached
hereto.
Certified Ordinance or Certified Resolution: an
Ordinance or a Resolution certified by the County Clerk and
Recorder to have been duly adopted by the Board of County
Commissioners and to be in full force and effect on the date of
such certification.
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County: the County of Weld in the State of Colorado .
(also sometimes referred to as the "Issuer") .
County Clerk and Recorder: the County Clerk and
Recorder of the Issuer.
Event of Default: those defaults described in Section
8.01 hereof.
Federal Securities : direct obligations of, or
obligations the principal and interest of which are
unconditionally guaranteed by, the United States of America.
Indenture: this Indenture of Trust dated as of July 1 ,
1984 and a7=57 executed and entered into on the date of
delivery of the Bonds , between the Issuer and Trustee including
any indentures supplemental hereto, pursuant to which the Bonds
are authorized to be issued and secured.
Initial Interest Rate : the initial interest rate borne
by the Bonds as set forth in Section 2.03 hereof.
Interest Payment Date: a date on which interest is due
on any Bonds .
Issuer: the County.
Loan Repayments : those amounts necessary to repay the
Loan made under the Loan Agreement.
Opinion of Counsel : an opinion in writing of legal
counsel , who may be counsel to Issuer or Borrower.
Outstanding or Bonds Outstanding: as of any particular
time, all Bonds which have been duly authenticated and delivered
by the Trustee under this Indenture, except :
(a) Bonds theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation after purchase in the
open market or because of payment at or redemption prior to
maturity;
(b) Bonds for the payment or redemption of which cash
funds (or Federal Securities to the extent permitted in Section
7.01 hereof) shall have been theretofore deposited with the
Trustee (whether upon or prior to the maturity or redemption date
of any such Bonds) ; provided , that if such Bonds are to be
redeemed prior to the maturity thereof, notice of such redemption
shall have been given or arrangements satisfactory to the Trustee
shall have been made therefor, or waiver of such notice
satisfactory in form to the Trustee, shall have been filed with
the Trustee; and
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(c) Bonds in lieu of which other Bonds have been .
authenticated and delivered pursuant to Section 2.07 hereof.
Paying Agent : the Trustee.
Person: natural persons , firms, associations ,
partnerships, corporations and public bodies .
Registered Owner: the Registered Owner of any Bond.
Registrar: the Trustee.
Series 1984 Bonds : the Mental Health Facilities Revenue
Bonds (Weld Mental Health Center Project) Series 1984 issued
pursuant to this Indenture of Trust .
Trustee: United Bank of Greeley, in Greeley, Colorado,
or any successor Trustee appointed, qualified and acting as such
under the provisions of this Indenture.
Trust Estate : property pledged and assigned to the
Trustee pursuant to the Granting Clauses hereof.
Section 1 .02 . Exhibits . Attached to and by reference
made a part of this Indenture are (i) Exhibit A, a legal
description of the Project Sites and the Buildings and other
improvements thereon; and (ii) Exhibit B, the schedule of Trustee
fees .
Section 1 .03. Rules of Interpretation.
(a) This Indenture shall be interpreted in accordance
with and governed by the laws of the State of Colorado.
(b) The words "herein" and "hereof" and "hereunder"
and words of similar import , without reference to any particular
section or subdivision, refer to this Indenture as a whole rather
than to any particular section or subdivision hereof.
(c) References in this instrument to any particular
article, section or subsection hereof are to the designated
article, section or subsection of this instrument asoriginally
executed.
(d) Any terms not defined herein but defined in the
Loan Agreement, Security Documents or other related documents
shall have the same meaning herein unless the context hereof
requires otherwise.
(e) The Table of Contents and titles of articles and
sections herein are for convenience only and are not a part of
this Indenture.
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(f) Unless the context hereof clearly requires
otherwise, the singular shall include the plural and vice versa
and the masculine shall include the feminine and vice versa.
(g) All accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles , and all computations provided for
herein shall be made in accordance with generally accepted
accounting principles.
Section 1 .04. Compliance Certificates and Opinions.
(a) Upon any application or request by the Borrower to
the Issuer or the Trustee to take any action under any provision
of this Indenture, the Borrower shall furnish the Issuer or the
Trustee with a certificate from the Borrower stating that all
conditions precedent , if any, provided for in this Indenture, the
Security Documents or in the Loan Agreement relating to the
proposed action have been complied with and upon the reasonable
request of the Issuer or the Trustee an Opinion of Counsel
stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the
case of any such application or request under any provision of
this Indenture pursuant to which the furnishing of such documents
is specifically required by such provision, no additional
certificate or opinion need be furnished.
(b) Every certificate or opinion with respect to
compliance with a condition or covenant provided for in this
Indenture shall include:
(i) a statement that each individual signing such
certificate or opinion has read such covenant or condition
and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of
the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are
based;
(iii) a statement that in the opinion of each such
individual , he has made such examination or investigation as
is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been
complied with; and
(iv) a statement that in the opinion of each such
individual, such condition or covenant has been complied
with.
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Section 1 .05. Form of Documents Delivered to Issuer or
Trustee.
(a) In any case where several matters are required to
be certified by, or covered by an opinion of, any specified
person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such person, or that
they be so certified or covered by only one document, but one
such person may certify or give an opinion with respect to some
matters and one or more other such persons as to other matters ,
and any such person may certify or give an opinion as to such
matters in one or several documents.
(b) Any certificate or opinion of an officer of the
Borrower may be based, insofar as it relates to legal matters ,
upon a certificate or opinion of, or representations by, Counsel ,
unless such officer knows , or in the exercise of reasonable care
should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion
is based are erroneous . Any Opinion of Counsel may be based,
insofar as it relates to factual matters , upon a certificate or
opinion of, or representations by, an officer or officers of the
Borrower stating that the information with respect to such
factual matters is in the possession of the Borrower, unless such
Counsel knows , or should know, that the certificate or opinion or
representations with respect to the matters upon which his
certificate or opinion is based are erroneous.
(c) Where any person is required to make, give or
execute two or more applications , requests , consents ,
certificates , statements , opinions or other instruments under
this Indenture, they may, but need not , be consolidated and form
one instrument.
Section 1 .06. Limitation on Issuer Liability.
No agreements or provisions contained in this Indenture
nor any agreement, covenant or undertaking by the Issuer
contained in any document executed by the Issuer in connection
with the Project shall give rise to any pecuniary liability of
the Issuer or a charge against its general credit or taxing
powers , or shall obligate the Issuer financially in any way
except with respect to the Project and the application of
revenues therefrom and the proceeds of the Bonds. No failure of
the Issuer to comply with any term, condition, covenant or
agreement herein shall subject the Issuer to liability for any
claim for damages , costs or other financial or pecuniary charge
except to the extent that the same can be paid or recovered from
the Project or revenues therefrom or proceeds of the Bonds ; and
no execution on any claim, demand, cause of action or judgment
shall be levied upon or collected from the general credit,
general funds or taxing powers of the Issuer. Nothing herein
shall preclude a proper party in interest from seeking and
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obtaining specific performance against the Issuer for any failure .
to comply with any term, condition, covenant or agreement herein;
provided, that no costs , expenses or other monetary relief shall
be recoverable from the Issuer except as may be payable from the
Project or its revenues.
(Balance of this page intentionally left blank)
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ARTICLE TWO
AUTHORIZATION TERMS
EXECUTION, FORM AND ISSUANCE OF BONDS
Section 2.01 . Authorized Amount of the Bonds . No
Bonds may be issued under this Indenture except in accordance
with this Article. The total principal amount of the Bonds that
may be issued hereunder shall be limited to $650,000, except as
provided in Section 2 .11 hereof.
Section 2.02. All Bonds Equally and Ratably Secured;
Bonds Not an Obligation of Issuer. All Bonds issued under this
Indenture and at any time Outstanding shall in all respects be
equally and ratably secured hereby, without preference, priority
or distinction on account of the date or dates or the actual time
or times of the issuance or maturity of the Bonds , so that all
Bonds at any time issued and Outstanding hereunder shall have the
same right , lien and preference under and by virtue of, and shall
all be equally and ratably secured by, this Indenture.
The Bonds shall be payable solely out of the revenues
and other security pledged hereby and shall not constitute the
debt or indebtedness of the Issuer within the meaning of any
provision or limitation of the Constitution or statutes of the
State of Colorado and shall never constitute nor give rise to a
pecuniary liability of Issuer or a charge against its general
credit or taxing powers .
Section 2.03. Authorization of Bonds. There is hereby
authorized to be issued hereunder and secured hereby an issue of
Bonds to be designated as the "Weld County, State of Colorado,
Mental Health Facilities Revenue Bonds (Weld Mental Health Center
Project) Series 1984." The initial Series 1984 Bonds shall :
(a) be fully registered;
(b) be dated as of July 1 , 1984;
(c) be in the aggregate principal amount of $650,000;
(d) be numbered consecutively from R-1 upwards , each
in the denomination of $5 ,000 or any integral multiple thereof;
(e) mature on July 1 , 2000 and bear interest at the
Initial Interest Rate of 8 . 25 percent per annum. The interest on
the Bonds shall be payable on January 1 , 1985, and semiannually
thereafter on the first day of July and the first day of January
of each year (the "Interest Payment Dates") . If upon
presentation at maturity, the principal of any Bond is not paid
as provided herein, interest shall continue thereon at the
Initial Interest Rate or the Adjusted Interest Rate, as the case
may be, until the principal is paid in full;
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(f) shall be subject to mandatory sinking fund .
redemption in part by lot, on July 1 , 1985 and on each following
July 1 to and including July 1 , 2000 at a redemption price equal
to their principal amount , together with accrued interest to the
mandatory sinking fund redemption date. There is to be deposited
in the Bond Fund on or before July 1 , 1985, and on or before each
following July 1 to and including July 1 , 2000, a sum (together
with other monies available in the Bond Fund) sufficient to
redeem on the mandatory sinking fund redemption date designated
below the following principal amounts of the Bonds maturing on
July 1 , 2000 together with interest accrued to the redemption
date:
Designated Designated
Date Amounts
1985 $20,000
1986 $20,000
1987 $25,000
1988 $25 ,000
1989 $30,000
1990 $25 ,000
1991 $35,000
1992 $35,000
1993 $40,000
1994 $40,000
1995 $45,000
1996 $50 ,000
1997 $55,000
1998 $55 ,000
1999 $70,000
2000 $80 ,000*
*Final Maturity.
To the extent that the Bonds maturing on July 1 , 2000
shall have been previously called for redemption in part
otherwise then from the mandatory sinking fund, each annual
mandatory seeking fund payment shall be reduced as herein
provided. The mandatory sinking fund requirements are to be re-
computed on May 1 , 1990 and on each following May 1. On May 1 ,
1990, the amount of the Bonds maturing on July 1 , 2000 previously
called for redemption is to be multiplied by the ratio which each
annual sinking fund requirement bears to the principal amount of
all Bonds maturing on July 1 , 2000 then Outstanding. The amount
so determined for each annual sinking fund payment date is to be
subtracted from that annual sinking fund payment date' s mandatory
sinking fund requirement to obtain the adjusted mandatory sinking
fund requirement. All remaining mandatory sinking fund
requirements are to be recalculated thereafter on each May 1 by
multiplying the amount of the Bonds maturing on July 1 , 2000
which were called during such annual period otherwise then
pursuant to the mandatory sinking fund requirement by the ratio
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which each annual sinking fund payment date' s adjusted sinking .
fund requirement (i.e. the requirement calculated on the previous
May 1) bears to the principal amount of all Bonds maturing on
July 1 , 2000 then Outstanding. The amount so calculated is to be
subtracted from the adjusted requirements for each annual sinking
fund payment date (i.e. the requirements calculated on the
previous May 1) and rounded to the nearest $5,000 multiple to
determine the adjusted requirements as of May 1 of the year of
calculation.
On or before the 25th day prior to each mandatory
sinking fund payment date, the Paying Agent will select for
redemption (by lot in the manner the Paying Agent may determine)
from all Outstanding Bonds maturing on July 1 , 2000 a principal
amount of such Bonds equal to the aggregate principal amount of
the Bonds maturing on July 1 , 2000 redeemable with the required
sinking fund payment. The Paying Agent then will call Bonds or
portions of Bonds maturing on July 1 , 2000 for redemption from
the mandatory sinking fund on the next mandatory sinking fund
payment date and will give notice of the call as provided in the
form of the Bonds set forth below. The portions of the Bonds
maturing on July 1 , 2000 to be redeemed will be in the principal
amount of $5 ,000 or any integral multiple of $5 ,000 and , in
selecting Bonds for mandatory sinking fund redemption, the Paying
Agent will treat each such Bond as representing that number of
Bonds which is obtained by dividing the principal amount of the
Bond by $5 ,000;
(g) be subject to mandatory prepayment prior to
maturity, at the option of the Registered Owners to tender
(present for acceptance) the Bonds to the Trustee , at a price
equal to the principal amount thereof plus accrued interest to
the date of such mandatory prepayment , without premium, which
mandatory prepayment dates shall be April 1 , 1986, July 1 , 1988
and biennially only thereafter. If the Registered Owner of any
of the Bonds elects to exercise the option to tender any Bonds of
this issue, notice shall be given in writing to the Issuer, the
Trustee and the Borrower not more than ninety (90) nor less than
sixty (60) days prior to the mandatory prepayment date on which
such option is to be exercised. If any Registered Owner
exercises the option to tender, and as a result thereof any Bonds
are tendered, all Bonds of this issue shall be redeemed on the
applicable mandatory prepayment date for the price stated above
and upon thirty (30) days ' written notice to the Registered
Owners of the Bonds. The Trustee shall effect the redemption in
the manner provided generally for redemption pursuant to the
operation of the mandatory sinking fund provisions set forth
above;
(h) bear interest at the Initial Interest Rate from
their date to April 1 , 1986, payable on the dates set forth
above, except that if the Bonds are tendered to the Trustee on
April 1 , 1986 as provided herein before, such interest shall be
payable on that date. On March 1 , 1986, on June 1, 1988 and
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biennially only thereafter (the "Interest Adjustment Dates") , the .
interst on the Bonds payable beginning on the next succeeding
Interest Payment Date shall be adjusted to equal 80% of the
average of the rates for twenty-four (24) month U. S. Treasury
Notes for the month immediately preceding each Interest
Adjustment Date (the "Adjusted Interest Rate") as determined by
the Trustee and said Trustee shall give written notice to the
Registered Owners of the Bonds on the Interest Adjustment Date of
the Adjusted Interest Rate upon which the interest payable
beginning on the next succeeding Interest Payment Date will be
based; provided, however, the Adjusted Interest Rate shall never
be in excess of 21% per annum;
(i) bear interest from the date thereof, until paid or
discharged, payable January 1 , 1985, and semiannually thereafter
on each January 1 , and July 1 ;
(j) be payable as to interest by check or draft mailed
by the Trustee and be payable as to principal upon presentation
and surrender at the principal corporate trust office of the
Trustee; and
(k) be subject to optional redemption prior to maturity
upon the terms and conditions and at the prices specified in this
Indenture.
Section 2.04. Execution of Bonds ; Signatures. The
Bonds shall be executed on behalf of the issuer by the facsimile
signature of the Chairman of the Board of County Commissioners ,
sealed with a facsimile of its corporate seal , attested and
countersigned by the manual signature of the County Clerk and
Recorder. In case any officer who shall have signed (whether
manually or in facsimile) any of the Bonds shall cease to be such
officer of Issuer before the Bonds have been authenticated by the
Trustee or delivered or sold, such Bonds with the signatures
thereto affixed may, nevertheless , be authenticated by the
Trustee, and delivered, and may be sold by Issuer, as though the
person or persons who signed such Bonds had remained in office.
Section 2.05. Form of Series 1984 Bonds , and Trustee' s
Certificate of Authentication. The Bonds and Trustee' s
authentication certificate are to be substantially in the
following forms , with such necessary or appropriate variations ,
omissions and insertions as permitted or required by this
Indenture:
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[Form of Bond]
(Text of Face)
UNITED STATES OF AMERICA
STATE OF COLORADO COUNTY OF WELD
MENTAL HEALTH FACILITIES REVENUE BOND
(WELD COUNTY MENTAL HEALTH CENTER PROJECT)
SERIES 1984
No. R- $
INITIAL
INTEREST MATURITY ORIGINAL CUSIP
RATE DATE ISSUE DATE NUMBER
8.25% July 1 , 2000 July 1 , 1984
REGISTERED OWNER:
PRINCIPAL SUM:
Weld County, in the State of Colorado (the "Issuer") , for
value received, hereby promises to pay, solely from the special
funds provided therefor, as hereinafter set forth, to the
Registered Owner (specified above) , or registered assigns, the
Principal Sum (specified above) , in lawful money of the United
States of America, on the Maturity Date (specified above) , with
interest thereon from the date hereof to the Maturity Date,
except if redeemed prior thereto, at the per annum Initial
Interest Rate (specified above) , payable semiannually on the 1st
day of January and the 1st day of July of each year, commencing
on the first such date after the date hereof, in the manner
provided herein. The interest rate on the Bonds shall be
adjusted (the "Adjusted Interest Rate") as provided hereinafter.
If upon presentation at maturity the principal of this Bond is
not paid as provided herein, interest shall continue thereon at
the same Initial Interest Rate or the Adjusted Interest Rate, as
the case may be, until the principal is paid in full.
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All Bonds of this issue are subject to optional redemption .
prior to the maturity date on July 1 , 1989, and on interest
payment dates thereafter upon payment of the principal amount
thereof plus accrued interest thereon to the redemption date plus
a premium of one percent (1%) of the principal amount so
redeemed.
All Bonds of this issue subject to optional redemption prior
to their respective maturity dates are redeemable in inverse
order of maturity and by lot within a maturity.
The Bonds are also subject to mandatory sinking fund
redemption prior to the Maturity Date on the dates specified
below, by lot , upon payment of the principal amount thereof plus
accrued interest thereon to the redemption date. Such Bonds are
to be redeemed on July 1 in each of the following years in each
of the following aggregate principal amounts :
Designated Designated
Date Principal Amounts
1985 $20,000
1986 20,000
1987 25,000
1988 25,000
1989 30,000
1990 25,000
1991 35 ,000
1992 35,000
1993 40,000
1994 40,000
1995 45 ,000
1996 50,000
1997 55 ,000
1998 55 ,000
1999 70,000
2000 80,000*
*Final Maturity
Mandatory sinking fund redemptions are required to be made
as provided in the Ordinance authorizing the issuance of the
Bonds .
This Bond may be redeemed in part if issued in a
denomination which is an integral multiple of $5,000. In such
case this Bond shall be surrendered in the manner provided for
transfer of ownership. Upon payment of the redemption price the
Registered Owner shall receive a new Bond or Bonds of authorized
denominations in aggregate principal amount equal to the
unredeemed portion of this Bond.
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REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS .
BOND SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS
SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH IN
THIS PLACE.
This Bond shall not be valid or become obligatory for any
purpose or be entitled to any security or benefit under the
Ordinance authorizing the issuance of this Bond until the
certificate of authentication hereon shall have been signed by
the Registrar.
IN TESTIMONY WHEREOF, Weld County, in the State of Colorado,
has caused this Bond to be signed in its name and on its behalf
with the facsimile signature of the Chairman of the Board of
County Commissioners , to be sealed with a facsimile of its seal ,
and to be attested and countersigned with the manual signature of
the County Clerk and Recorder.
WELD COUNTY
STATE OF COLORADO
(FACSIMILE) By: (Facsimile Signature)
( SEAL ) Chairman of the Board
of County Commissioners
ATTESTED AND COUNTERSIGNED:
(Manual Signature)
County Clerk and Recorder
Dated:
CERTIFICATE OF AUTHENTICATION
This Bond is one of the series issued pursuant to the Ordinance
therein described. Printed on the reverse hereof is the complete
text of the opinion of bond counsel, Erick D. Stowe, Professional
Corporation, Denver, Colorado, a signed copy of which, dated the
date of original issuance of the Bonds therein described, is on
file with the undersigned.
UNITED BANK OF GREELEY
as Trustee and Registrar
By: (Manual Signature)
Authorized Officer
2-7
(Text of Reverse)
The principal of, interest on, and any premium due in
connection with the redemption of this Bond are payable, solely
from the special funds provided therefor, to the Registered Owner
by United Bank of Greeley, Greeley, Colorado, or its successor,
as Paying Agent. The principal shall be paid to the Registered
Owner upon presentation and surrender of this Bond at maturity or
upon prior redemption. Except as hereinafter provided, the
interest shall be paid to the Registered Owner, determined as of
the close of business on the regular record date, which shall be
the fifteenth (15th) day of the calendar month next preceding the
interest payment date, irrespective of any transfer of ownership
hereof subsequent to the regular record date and prior to such
interest payment date, by check or draft mailed to the Registered
Owner at the address appearing on the registration books of the
Issuer maintained by United Bank of Greeley, Greeley, Colorado,
or its successor, as Registrar. Any interest hereon not paid
when due and any interest hereon accruing after maturity shall be
paid to the Registered Owner, determined as of the close of
business on the special record date, which shall be fixed by the
Paying Agent for such purpose, irrespective of any transfer of
ownership of this Bond subsequent to such special record date and
prior to the date fixed by the Paying Agent for the payment of
such interest , by check or draft mailed as aforesaid. Notice of
the special record date and of the date fixed for the payment of
such interest shall be given by sending a copy thereof by first-
class , postage prepaid mail, at least ten (10) days prior to the
special record date, to Prudential-Bache Securities , Inc. ,
Anderson DeMonbrun Division, and United Bank of Denver, N.A. ,
Denver, Colorado, and to the registered owner of each Bond upon
which interest will be paid, determined as of the close of
business on the day preceding such mailing, at the address
appearing on the registration books of the Issuer maintained by
the Registrar. Any premium shall be paid to the Registered Owner
upon presentation and surrender of this Bond upon prior
redemption.
Notice of redemption of any Bonds of this issue shall be
given by the Paying Agent in the name of the Issuer by sending a
copy of such notice by certified or registered first-class ,
postage prepaid mail, at least thirty (30) days prior to the
redemption date, to Prudential-Bache Securities , Inc. , Anderson
DeMonbrun Division, and United Bank of Denver, N.A. , Denver,
Colorado, and to the registered owner of each of the Bonds being
redeemed, determined as of the close of business on the day
preceding the first mailing of such notice, at the address
appearing on the registration books of the Issuer maintained by
the Registrar. Such notice shall specify the number or numbers
of the Bonds to be redeemed, whether in whole or in part, and the
date fixed for redemption and shall further state that on the
redemption date there will be due and payable upon each Bond or
part thereof so to be redeemed the principal amount or part
thereof to be so redeemed plus accrued interest thereon to the
2-8
redemption date in the case of a mandatory sinking fund
redemption or the principal amount or part thereof to be so
redeemed plus accrued interest thereon to the redemption date
plus a premium of one percent (1%) of the principal amount to be
so redeemed in the case of an optional redemption, and that from
and after such redemption date, of either a mandatory sinking
fund redemption or an optional redemption, interest on each Bond
or part thereof so to be redeemed will cease to accrue. Failure
to mail any notice as aforesaid or any defect in any notice so
mailed in respect of any Bond shall not affect the validity of
the redemption proceedings in respect of any other Bond.
The Bonds of this issue are also subject to mandatory
prepayment prior to maturity, at the option of the registered
owners to tender (present for acceptance) the Bonds to the
Trustee, at a price equal to the principal amount thereof plus
accrued interest to the date of such mandatory prepayment ,
without premium, which mandatory prepayment dates shall be April
1 , 1986 , July 1 , 1988 and biennially only thereafter. If the
registered owner of any of the Bonds elects to exercise the
option to tender any Bonds of this issue, notice shall be given
in writing to the Issuer, the Trustee and the Borrower not more
than ninety (90) nor less than sixty (60) days prior to the
mandatory prepayment date on which such option is to be
exercised . If any registered owner exercises the option to
tender, and as a result thereof any Bonds are tendered, all Bonds
of this issue shall be redeemed on the applicable mandatory
prepayment date for the price stated above and upon thirty (30)
days ' written notice to the registered owners of the Bonds . The
Trustee shall effect the redemption in the manner provided
generally for redemption pursuant to the operation of the
mandatory sinking fund provisions set forth above.
The Bonds shall bear interest at the Initial Interest
Rate from their date to April 1 , 1986, payable on the dates set
forth above, except that if the Bonds are tendered to the Trustee
on April 1 , 1986 as provided hereinbefore, such interest shall be
payable on that date. On March 1 , 1986, on June 1 , 1988 and
biennially only thereafter (the "Interest Adjustment Dates") , the
interest on the Bonds payable beginning on the next succeeding
Interest Payment Date shall be adjusted to equal 80% of the
average of the rates for twenty-four (24) month U.S. Treasury
Notes for the month immediately preceding each Interest
Adjustment Date (the "Adjusted Interest Rate") as determined by
the Trustee and said Trustee shall give written notice to the
registered owners of the Bonds on the Interest Adjustment Date of
the Adjusted Interest Rate upon which the interest payable
beginning on the next succeeding Interest Payment Date will be
based; provided, however, the Adjusted Interest Rate shall never
be in excess of 21% per annum.
2-9
This Bond is issued under the City and Municipality .
Development Revenue Bond Act, constituting Title 29, Article 3,
Part 1 , Colorado Revised Statutes (the "Act") , and in conformity
with the provisions , restrictions and limitations thereof. This
Bond does not constitute a charge against the general credit or
taxing powers of the Issuer and does not grant to the Registered
Owner of this Bond any right to have the Issuer levy any taxes or
interest hereon, nor is this Bond a general obligation of the
Issuer or the individual officers or agents thereof. This Bond
and interest hereon are payable solely and only from the monies
received under the Loan Agreement or held by the Trustee in the
Fund or Account appropriated to the payment of the Bonds under
the Indenture, hereinafter mentioned, including Loan Repayments
to be made by Weld Mental Health Center, Inc. , a nonprofit
corporation formed under the laws of the State of Colorado (the
"Borrower") .
This Bond is one of a duly authorized series of special
obligation Bonds of an aggregate principal amount of $650,000, in
the denomination of $5,000 or any integral multiple thereof,
numbered from R-1 upwards in order of maturity, and of like tenor
and effect except as to serial number and maturity, all of which
have been authorized by law to be issued and have been issued or
are to be issued for the purpose of funding a loan from the
Issuer to the Borrower to enable the Borrower to acquire, remodel
and equip facilities it currently occupies and acquire , remodel
and equip additional existing facilities , within Weld County (the
"Project") , pursuant to a Loan Agreement (the "Loan Agreement")
between the Issuer and the Borrower dated as of July 1 , 1984, and
a Bond Ordinance of the Issuer finally passed and adopted prior
to the issuance of the Bonds , and an Indenture of Trust (the
"Indenture") dated as of July 1 , 1984, duly executed and
delivered by the Issuer to the Trustee. The Bonds of this series
are equally and ratably secured by the Loan Agreement, the
Indenture, the Bond Ordinance and a Combination Mortgage and
Security Agreement dated as of July 1 , 1984, from the Borrower to
the Trustee (the "Mortgage") , to which Loan Agreement, Indenture,
Bond Ordinance and Mortgage and amendments thereof reference is
hereby made for a description and limitations of the revenues and
property pledged and mortgaged to secure the payment of the
Bonds , the nature and extent of the security thereby created, the
rights of the registered owners of the Bonds , the conditions of
the issuance of additional parity lien bonds, the rights , duties
and immunities of the Trustee, and the rights , immunities and
obligations of the Issuer thereunder. Certified copies of the
Bond Ordinance and executed counterparts of the Indenture, Loan
Agreement and Mortgage are on file at the office of the Trustee
and at the office of the County Clerk.
In case an Event of Default as defined in the Indenture or
Loan Agreement occurs , the principal of this Bond and all other
Bonds Outstanding may be declared or may become due and payable
prior to the stated maturity hereof in the manner and with the
effect and subject to the conditions provided in the Indenture
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but no registered owner of any Bond shall have any right to -
enforce the provisions of the Indenture, Loan Agreement or
Mortgage except as provided in the Indenture.
With the consent of the Issuer and Trustee and to the extent
permitted by and as provided in the Indenture, the terms and
provisions of the Indenture, the Loan Agreement or the Mortgage
or of any instrument supplemental thereto may be modified or
altered by the assent or authority of the registered owners of at
least 66-2/3% in aggregate principal amount of the Bonds then
Outstanding thereunder.
It is hereby certified and recited and the Board of County
Commissioners of the Issuer has found: that the Project is an
eligible "project" defined in C.R.S. 29-3-103 (10) (b) of the Act;
that the issuance of the Bonds and the acquisition and completion
of the Project will promote the public welfare and carry out the
purposes of the Act ; that all acts, conditions and things
required to be done precedent to and in the issuance of this Bond
and the series of which it is a part have been properly done,
have happened and have been performed in regular and due time,
form and manner as required by law; and that this Bond and the
series of which it is a part does not constitute a debt of the
Issuer within the meaning of any constitutional , statutory or
charter limitations .
This Bond is transferable only upon the registration books
of the Issuer maintained by the Registrar by United Bank of
Greeley, Greeley, Colorado or its successor, as Transfer Agent ,
at the request of the Registered Owner or his or its duly
authorized attorney-in-fact or legal representative, upon
surrender hereof together with a written instrument of transfer
duly executed by the Registered Owner or his or its duly
authorized attorney-in-fact or legal representative with guaranty
of signature satisfactory to the Transfer Agent, containing
written instructions as to the details of the transfer, along
with the social security number or federal employer
identification number of the transferee and, if the transferee is
a trust , the names and social security numbers of the settlor or
settlors and beneficiary or beneficiaries of the trust.
Transfers shall be made at the expense of the transferor, and the
Transfer Agent may also require payment of a sum sufficient to
defray any tax or other governmental charge that may hereafter be
imposed in connection with any transfer of bonds. No
registration or transfer of this Bond shall be effective until
entered on the registration books of the Issuer maintained by the
Registrar and Transfer Agent . The Registrar and Transfer Agent
shall authenticate and deliver to the new registered owner a new
Bond or Bonds of the same aggregate principal amount, maturing in
the same year, and bearing interest at the same per annum rate as
the Bond or Bonds surrendered. Such Bond shall be dated as
provided in the Ordinance authorizing the issuance hereof. The
Transfer Agent shall not be required to transfer ownership of
this Bond during the fifteen (15) days prior to the first mailing
2-11
of any notice of redemption or to transfer ownership of any Bond .
selected for redemption on or after the date of such mailing.
The Registered Owner may also exchange this Bond for another Bond
or Bonds of authorized denominations. The Issuer may deem and
treat the person in whose name this Bond is last registered upon
the books of the Issuer maintained by the Registrar as the
absolute owner hereof for the purpose of receiving payment of the
principal of, interest on and any premium due in connection with
the redemption of this Bond and for all other purposes , and all
such payments so made to such person or upon his order shall be
valid and effective to satisfy and discharge the liability of the
Issuer or the Paying Agent upon this Bond to the extent of the
sum or sums so paid, and the Issuer shall not be affected by any
notice to the contrary.
(Balance of this page intentionally left blank.)
2-12
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
(Name and Address of Assignee)
the attached Bond and does hereby irrevocably constitute and
appoint United Bank of Greeley, Greeley, Colorado, or its
successor, as Registrar and Transfer Agent, to transfer said Bond
on the books kept for registration thereof.
(Signature of Assignor)
NOTICE: The signature to this assignment
must correspond with the name of
the Registered Owner as it appears
upon the face of the attached Bond
in every particular, without
alteration or enlargement or any
change whatever.
Signature guaranteed :
(Bank, Trust Company or Firm)
[End of Form of Bond]
2-13
Section 2.06. Persons Treated as Owners .
The Issuer and the Trustee may deem and treat the
person in whose name any Bond is last registered upon the books
of the Issuer maintained by the Registrar as the absolute owner
thereof for the purpose of receiving payment of the principle of,
interest on and any premium due in connection with the redemption
of any Bond and for all other purposes, and all such payments so
made to such person or upon his order shall be valid and
effective to satisfy and discharge the liability of the Issuer
and the Trustee upon any Bond to the extent of the sum or sums so
paid, and the Issuer, and the Trustee shall not be affected by
any notice to the contrary.
Section 2.07. Lost, Stolen, Destroyed and Mutilated
Bonds . Upon receipt by Issuer and Trustee of evidence
satisfactory to them of the ownership of and the loss , theft,
destruction or mutilation of any Bond and, in the case of a lost ,
stolen or destroyed Bond, of indemnity satisfactory to them, and
upon surrender and cancellation of the Bond if mutilated, (a)
Issuer shall execute, and the Trustee shall authenticate and
deliver, a new Bond of the series , date, maturity, denomination
and interest rate in lieu of such lost, stolen, destroyed, or
mutilated Bond or (b) if such lost, stolen, destroyed or
mutilated Bond shall have matured or have been called for
redemption, in lieu of executing and delivering a new Bond as
aforesaid, Issuer may pay such Bond. Any such new Bond shall
bear the number of the Bond being replaced. The applicant for
any such new Bond may be required to pay all expenses and charges
of Issuer and of the Trustee in connection with the issuance of
such new Bond. All Bonds shall be held and owned upon the
express condition that , to the extent permitted by law, the
foregoing conditions are exclusive with respect to the
replacement and payment of mutilated, destroyed, lost or stolen
Bonds.
Section 2.08. Delivery of the Bonds. Upon the
execution and delivery of this Indenture, Issuer shall execute
and deliver the Bonds to the Trustee, and the Trustee shall
authenticate the Bonds and deliver them to the original
purchasers thereof as directed by Issuer and as hereinafter in
this Section provided.
Prior to the delivery by the Trustee of any of the
Bonds there shall be filed with and delivered to the Trustee at
least :
(a) A Certified Ordinance authorizing the financing of
the Project , the execution and delivery of the Loan Agreement and
this Indenture, and the issuance of the Bonds .
(b) This Indenture duly executed by the Issuer and the
Trustee.
2-14
(c) The Loan Agreement duly executed by the Issuer and .
the Borrower.
(d) The Mortgage and Security Agreement, duly executed
by the Borrower with the Mortgage constituting a first mortgage
and security interest in the Project.
(e) Uniform Commercial Code Financing Statements duly
executed by the Borrower and Issuer.
(f) Chattel lien searches.
(g) Certificates of insurance evidencing that the
insurance coverage required by the Loan Agreement and the
Mortgage is in full force and effect .
(h) A copy of the resolutions adopted by the Borrower
and the Ordinance of the governing body of the Issuer (the Bond
Ordinance) evidencing approval of this Indenture and all matters
contemplated herein and naming those officials authorized to
execute the Loan Agreement, the Bonds , this Indenture and the
Mortgage, currently certified by the Borrower and the County
Clerk and Recorder, respectively.
(i) Copies of the Articles of Incorporation and Bylaws
of the Borrower, as amended currently certified by the Borrower.
(j) An opinion of Bond Counsel that the Series 1984
Bonds have been duly authorized and issued by the Issuer and are
valid and binding special , limited obligations thereof
enforceable in accordance with their terms and that the interest
on the Series 1984 Bonds is exempt from federal and Colorado
income taxation.
(k) Opinions of Counsel to the Borrower that the
Borrower is empowered and authorized to enter into, execute and
perform its Obligations under, the Loan Agreement and the
Mortgage, that the Loan Agreement and the Mortgage have been duly
executed and delivered, are enforceable against the Borrower in
accordance with their terms , and the execution and delivery
thereof does not result in a default under or violate the
provisions of any other agreement to which the Borrower or its
properties are subject; that financing statements with respect to
the Loan Agreement and the Mortgage, and other related Security
Documents have been duly filed thereby securing to the Trustee
first mortgage and security interest in all contract rights under
the Loan Agreement and in the Project; that there is no
litigation threatened or pending questioning the Borrower' s
authority to execute and perform its Obligations under the Loan
Agreement or the Mortgage or which, if determined adversely to
the Borrower, would result in a recovery of a dollar amount which
would have a material adverse effect on its business operations ;
and that the Project is properly zoned for its intended use by
the Borrower.
2-15
(1) A request and authorization to the Trustee, on .
behalf of the Issuer and signed by the Chairman of the Board of
County Commissioners, to authenticate and deliver the Bonds to
the Purchasers therein identified upon payment to the Trustee for
the account of the Issuer of a sum specified in such request and
authorization plus accrued interest thereon to the date of
delivery.
Section 2.09. Trustee's Authentication Certificate.
The Trustee' s authentication certificate upon the Bonds shall be
substantially in the form and tenor hereinbefore recited. No
Bond shall be secured hereby or entitled to the benefit hereof,
or shall be valid or obligatory for any purpose, unless the
certificate of authentication, substantially in such form, has
been duly executed by the Trustee; and such certificate of the
Trustee upon any Bond shall be conclusive evidence and the only
competent evidence that such Bond has been authenticated and
delivered hereunder. The Trustee ' s certificate of authentication
shall be deemed to have been duly executed by it if manually
signed by an authorized officer of the Trustee, but it shall not
be necessary that the same officer sign the certificate of
authentication on all of the Bonds issued hereunder.
Section 2.10. Cancellation and Destruction of Bonds by
the Trustee. Whenever any Outstanding Bonds shall be delivered
to the Trustee for the cancellation thereof pursuant to this
Indenture, upon payment of the principal amount or interest
represented thereby or for replacement pursuant to Section 2.07 ,
such Bonds shall be promptly cancelled and cremated or otherwise
destroyed by the Trustee and counterparts of a certificate of
destruction evidencing such cremation or other destruction shall
be furnished by the Trustee to Issuer and the Borrower.
Section 2.11 . Issuance of Additional Bonds. To refund
Outstanding Bonds or provide funds to pay additional Costs of the
Project or to finance any addition, expansion, enlargement or
modification of the Project, after the delivery of the Series
1984 Bonds , the Issuer, Borrower and Trustee may from time to
time, upon the conditions stated in this Section 2. 11 , agree upon
and approve the issuance and delivery of Additional Bonds ,
secured by this Indenture and equally and ratably payable from
the revenues pledged and appropriated hereunder with the Series
1984 Bonds , but bearing such date or dates, maturities , interest
payment dates and interest rate or rates and with such redemption
dates and premiums as may be agreed upon. Every series of such
Additional Bonds shall be authorized by an amendment to the Loan
Agreement and a supplement to this Indenture establishing the
terms thereof and providing for additional loan payments
sufficient to pay the interest due on the Additional Bonds and on
all then Outstanding Bonds , and to pay and discharge all such
Bonds at maturity or when required by the provisions of this
Indenture and such supplemental indenture. Each series of such
Additional Bonds shall be executed and authenticated as provided
in Sections 2.04 and 2.09 hereof upon filing with the Trustee of
2-16
original executed counterparts of the supplemental indenture and •
the amendment to the Loan Agreement, together with such
additional certificates , opinions , and other documents as deemed
necessary by Bond Counsel and an Opinion of Bond Counsel stating
that the issuance of the Additional Bonds will not cause the
interest payable on the Outstanding Bonds to become subject to
federal or Colorado income taxes.
Section 2.12. Registration, Transfer and Exchange of
Bonds.
(a) The Issuer will cause to be kept at the principal
corporate office of United Bank of Greeley, Greeley, Colorado, as
registrar (the "Registrar") (the Trustee) a Bond Register in
which, subject to such reasonable regulations as the Registrar
may prescribe, the Issuer shall provide for the registration of
Bonds and the registration of transfers of Bonds entitled to be
registered or transferred as herein provided.
(b) Upon surrender for transfer of any Bond at the
principal trust office of the Registrar, the Issuer shall
execute, and the Registrar shall authenticate and deliver, in the
name of the designated transferee or transferees , one or more new
Bonds of a like aggregate principal amount , as requested by the
Transferor.
(c) All Bonds surrendered upon any exchange or
transfer provided for in this Indenture shall be promptly
cancelled by the Registrar and thereafter disposed of as directed
by the Issuer.
(d) All Bonds issued in exchange for or upon transfer
of Bonds shall be valid special , limited obligations of the
Issuer evidencing the same debt , entitled to the same benefits
under this Indenture, as the Bonds surrendered for such exchange
or transfer.
(e) Every Bond presented or surrendered for transfer
or exchange shall be duly endorsed or be accompanied by a written
instrument of transfer, in form satisfactory to the Issuer and
the Registrar, duly executed by the Registered Owner thereof or
his or its attorney-in-fact or legal representative duly
authorized in writing.
(f) The Transferor shall pay the expense of any
transfer or exchange and the Registrar may require payment of a
sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of
bonds .
2-17
(g) The Registrar shall not be required (i) to .
transfer or exchange any Bond for a period of fifteen (15) days
next preceding any Interest Payment Date or (ii) to transfer or
exchange any Bond called or being called for redemption in whole
or in part.
Section 2.13. Interest Rights Preserved; Dating of
Registered Bonds. Each Bond delivered upon transfer of or in
exchange for or in lieu of any other Bond shall carry all the
rights to interest accrued and unpaid, and to accrue, which were
carried by such other Bond, and each such Bond shall be so dated,
that neither gain nor loss in interest shall result from such
transfer, exchange or substitution. Each Bond shall be dated by
the Trustee as of the last Interest Payment Date preceding the
date of authentication to which interest on the Bond has been
paid or made available for payment, unless (i) the date of
authentication is an Interest Payment Date to which interest has
been paid or made available for payment, in which case the Bond
shall be dated as of the date of authentication, or (ii) the date
of authentication is prior to the first Interest Payment Date
after the date of the Bonds , in which case such Bond shall be
dated as of the date of issue of such Bonds.
(Balance of this page intentionally left blank.)
2-18
ARTICLE THREE
REVENUES AND FUNDS
Section 3.01 . Source of Payment of Bonds. The
proceeds of the Bonds (exclusive of any accrued interest paid by
the initial purchasers of the Bonds) have been loaned to the
Borrower under the terms and conditions described in the Loan
Agreement, and the payments provided in Section 4.01 of the Loan
Agreement are to be remitted directly to the Trustee for the
account of Issuer and deposited in the Bond Fund. These payments
are to be sufficient in amount to insure, and are hereby pledged
to secure, the prompt payment of the principal of, premium, if
any, and interest on the Bonds.
The Bonds and all payments by the Issuer hereunder are
not general obligations of the Issuer, and shall never constitute
its indebtedness , but are limited, special obligations of the
Issuer payable solely from revenues and receipts derived under
the Loan Agreement as authorized by the Act and provided herein,
and any other security pledged hereby.
Section 3.02. Deposit of Series 1984 Bond Proceeds .
The Issuer shall deposit, or shall direct the purchaser or
purchasers of the Series 1984 Bonds to deposit, with the Trustee
all of the net proceeds of the sale of the Series 1984 Bonds
(including accrued interest thereon from the date from which
interest is to be paid to the date of delivery to the purchaser
or purchasers thereof) and the Trustee out of such proceeds
shall :
(a) Deposit to the credit of the Bond Fund the accrued
interest paid by the purchaser, representing interest on the
Series 1984 Bonds from the date of the Bonds to the date of
delivery; and
(b) Deposit to the credit of the Reserve Fund the
amount of $96,000; and
(c) Deposit to the credit of the Construction Fund the
balance of such net proceeds.
Section 3.03. Creation of the Bond Fund. There is
hereby created by Issuer and ordered established with the Trustee
a trust fund to be designated as the "Weld County, Colorado,
Mental Health Facilities Revenue Bonds (Weld Mental Health Center
Project) Bond Fund." Moneys on deposit in the Bond Fund shall be
used to pay the principal of, redemption premium, if any, and
interest on the Bonds .
Section 3.04. Payments into the Bond Fund. There
shall be deposited into the Bond Fund all accrued interest, if
any, received from the sale of the Bonds to the initial
3-1
purchasers. In addition, there shall be deposited into the Bond.
Fund, as and when received, (i) all payments specified in Section
4.01 of the Loan Agreement , (ii) all other moneys required or
permitted to be deposited therein pursuant to the Loan Agreement,
and (iii) all other moneys received by the Trustee when
accompanied by directions that such moneys are to be paid into
the Bond Fund. There also shall be retained in and used for the
purposes of the Bond Fund all interest and other income received
on investments of Bond Fund moneys pursuant to Section 6.01
hereof.
Section 3.05. Use of Moneys in the Bond Fund. The
amounts deposited in the Bond Fund pursuant to the first sentence
of Section 3.04 hereof shall be used to pay accrued interest, if
any, on the Bonds . Except as provided in Sections 3.04 and 8.05
hereof, moneys in the Bond Fund shall be used solely for the
payment of the principal of, redemption premium, if any, and
interest on the Bonds. Whenever the amount in the Bond Fund from
any source whatsoever is sufficient to redeem all of the Bonds
Outstanding and to pay interest to accrue thereon prior to such
redemption, and redemption premium, if any, the Issuer, subject
to the requirements of the Loan Agreement, covenants to take or
cause to be taken the necessary steps to redeem all of the Bonds
on the redemption date for which the required redemption notice
has been given.
Section 3.06. Custody of the Bond Fund. In the event
any Bond shall not be presented for payment when the principal
thereof becomes due, either at maturity, the date fixed for
mandatory or optional redemption thereof, or otherwise, all
liability of Issuer to the Registered Owner(s) thereof for the
payment of such Bonds , shall forthwith cease, determine and be
completely discharged, and thereupon it shall be the duty of the
Trustee to hold such fund or funds , without liability for
interest thereon, for the benefit of the Registered Owner(s) of
such Bond, who shall thereafter be restricted exclusively to such
fund or funds for any claim of whatever nature on his or their
part under this Indenture or on, or with respect to , said Bond.
If any Bond shall not be presented for payment within the period
of six (6) years following the date when such Bond becomes due ,
whether by maturity or otherwise, the Trustee shall return to
Borrower the funds theretofore held by it for payment of such
Bond and such Bond shall, subject to the defense of any
applicable statute of limitation, thereafter be an unsecured
obligation of Borrower.
Section 3.07. Creation of the Reserve Fund. There is
hereby created and established with the Trustee, a separate fund
to be designated "Weld County, Colorado, Mental Health Facilities
Revenue Bonds (Weld Mental Health Center Project) Bond Reserve
Fund," for the purpose of providing additional security for the
payment of the principal of and interest on the Bonds .
3-2
Moneys on deposit in the Reserve Fund shall be .
transferred to Bond Fund if on any Interest Payment Date or
mandatory redemption date or prepayment or maturity date the
amount then on hand in the Bond Fund is not sufficient to pay the
principal of and interest on the Bonds as the same shall mature
and become due or upon the redemption or mandatory prepayment
thereof prior to maturity.
Section 3.08. Payments into the Reserve Fund. There
shall be deposited to the Reserve Fund from the proceeds of the
issuance and sale of Bonds , the amount of $96,000 (the "Required
Reserve") . In the event moneys from the Reserve Fund are
transferred to the Bond Fund to make up any deficiencies therein,
the Issuer agrees to increase the payments due under the Loan
Agreement sufficient to restore the Reserve Fund moneys so used
within one (1) year of their transfer. Any income accruing from
the moneys in the Reserve Fund will annually be transferred to
the Bond Fund. The Issuer may reduce payments due under the Loan
Agreement by that amount so long as the Reserve Fund balance does
not fall below the Required Reserve.
Section 3.09. Creation of Construction Fund. There is
hereby created and established with the Trustee in the name of
the Issuer, an account designated as the "Weld County, Colorado,
Mental Health Facilities Revenue Bonds (Weld Mental Health Center
Project) Construction Fund," into which shall be deposited the
net proceeds of the sale of the Bonds pursuant to Section 3 .02 .
hereof.
Section 3.10. Disbursements from the Construction
Fund.
(a) The proceeds in the Construction Fund shall be
disbursed to or on behalf of Borrower in accordance and strict
compliance with the provisions of this Section 3 .10. The Trustee
is hereby authorized and directed to issue its checks on the
Construction Fund for each payment pursuant to this Indenture.
(b) The Trustee shall keep and maintain adequate
records pertaining to the Construction Fund and all payments
therefrom, which shall be open to inspection by the Issuer' s
Representative or Borrower during normal business hours of the
Trustee. The Trustee shall on October 1 , 1984 and quarterly
thereafter prior to the Completion Date file with the Borrower a
quarterly statement of income and disbursements with respect to
the Construction Fund.
(c) On or before two (2) business days prior to the
tenth (10th) day of each calendar month, Borrower shall deliver
to the Trustee the following:
(i) A draw request , in the form acceptable to the
Trustee, and certification by the Borrower that all proceeds
of the Construction Fund theretofore disbursed have been
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spent in accordance with the draw request applicable thereto
and that the improvements have been and are being
constructed or installed in accordance with the Plans and
Specifications;
(ii) A certificate from the Borrower identifying all
contractors and suppliers who have furnished services or
materials for the improvements and who are entitled to any
of the proceeds of the next scheduled disbursements ,
including those Costs of the Project previously paid by the
Borrower out of its own funds for which it has not been
previously reimbursed together with such supporting invoices
as the Trustee may reasonably request;
(iii) Partial or complete lien waivers from the
general contractor for services or site materials for the
amounts for which the general contractor is requesting
disbursements ; and
(iv) Certifications from the Borrower that the
improvements have been and are being constructed or
installed in accordance with Plans and Specifications and
that all materials for which payment is requested have been
delivered to and remain on the Project Sites in such form as
Trustee may reasonably request.
(d) After receipt of all the documents delivered
pursuant to Subsection 3.10(c) hereof, on the tenth (10th) day of
the month or the next succeeding business day if the tenth (10th)
day is not a business day, Trustee shall make disbursements of
the proceeds of the Construction Fund in the amounts determined
as set forth in this Section. If at any time there shall exist
an Event of Default or any event which would , with notice or the
passage of time or both, constitute an Event of Default, Trustee
may, in its full discretion, suspend disbursement or disburse
directly to any person entitled to the proceeds of such
disbursement .
(e) In the case of any contract providing for the
retention by the Borrower of a portion of the contract price ,
there shall be paid from the Construction Fund only the net
amount remaining after deduction of any such portion until such
time as the amount retained is required to be released.
(f) Upon the occurrence of an Event of Default
hereunder and the election by the Trustee of the remedy specified
under Section 12.02 (a) (acceleration of principal) of the Loan
Agreement , any moneys in the Construction Fund shall be applied
to the payment of the principal of and interest on the Bonds .
Section 3.11. Completion of Project if Construction
Fund Insufficient. In the event the moneys in the Construction
Fund available for payment of the Costs of the Project should not
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be sufficient to pay Costs of the Project in full , the Borrower ,
shall complete the Project and pay that portion of the Costs of
the Project in excess of the moneys available therefor in the
Construction Fund. The Issuer does not make any warranty, either
express or implied, that the moneys which will be paid into the
Construction Fund will be sufficient to pay all the Costs of the
Project. If the Borrower pays any portion of the Costs of the
Project pursuant to this Section, it shall not be entitled to any
reimbursement therefor from the Issuer or the Trustee, nor shall
it be entitled to any reduction or diminution in or abandonment
or postponement of the payments due under the Loan Agreement.
Section 3.12. Trustee' s Fees, Charges and Expenses .
Pursuant to the Loan Agreement, Borrower has agreed to pay to the
Trustee, commencing with the effective date of the Loan Agreement
and continuing until the principal of, redemption premium, if
any, and interest on the Bonds shall have been fully paid or
provision for the payment thereof shall have been made in
accordance with the provisions of this Indenture, the reasonable
and necessary fees and expenses of the Trustee , as and when the
same become due, upon the submission by the Trustee of a
statement therefor. Borrower may, without creating a default
hereunder, contest in good faith the reasonableness of any such
fees and expenses .
Section 3.13. Moneys to be Held in Trust. All moneys
required to be deposited with or paid to the Trustee under any
provision of this Indenture shall be held by the Trustee in trust
for the purposes , or moneys deposited with or paid to the Trustee
for the redemption of Bonds for which the notice of redemption
has been duly given, shall , while held by the Trustee , constitute
part of the Trust Estate and be subject to the lien hereof.
Section 3.14. Insurance and Condemnation Proceeds .
The Trustee hereby accepts and agrees to perform the duties and
obligations specified in the Loan Agreement with respect to the
collection and disbursement of insurance and condemnation
proceeds and the same are incorporated herein by reference.
Section 3.15. Repayment to Borrower from the Bond
Fund. Any amounts remaining in the Bond Fund after payment in
full of the Bonds , the fees and expenses of the Trustee, the
Administration Expenses , and all other amounts required to be
paid under the Loan Agreement and this Indenture shall be paid to
Borrower upon the expiration of the term of the Loan Agreement .
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•
ARTICLE FOUR
COVENANTS OF THE ISSUER
Section 4.01 . Performance of Covenants' Authority.
Issuer covenants that it will faithfully perform and observe at
all times any and all covenants , undertakings , stipulations and
provisions contained in this Indenture, the Loan Agreement , in
any and every Bond, and in all proceedings of its Board of County
Commissioners pertaining thereto. Issuer covenants that it is
duly authorized under the Constitution and laws of the State of
Colorado, including, particularly and without limitation, the
Act , and under its Home Rule Charter to issue the Bonds and to
execute this Indenture and to pledge the revenues and receipts
hereby pledged and to assign its rights under and pursuant to the
Loan Agreement in the manner and to the extent herein set forth,
that all action on its part of this Indenture has been duly and
effectively taken and will be duly taken as provided herein, and
that the Bonds in the hands of the Registered Owners thereof are
and will be valid and enforceable obligations of Issuer according
to the terms thereof.
Section 4.02. Instruments of Further Assurance.
Issuer covenants that it will do , execute , acknowledge and
deliver or cause to be done , executed, acknowledged and
delivered , such indentures supplemental hereto and such further
acts , instruments and transfers as the Trustee may reasonably
require for the better assuring, transferring, and pledging unto
the Trustee all and singular the Trust Estate and the revenues
and receipts pledged hereby to the payment of the principal of,
redemption premium, if any, and interest on the Bonds .
Section 4.03. Payment of Principal, Redemption
Premium, if any, and Interest . Issuer hereby covenants and
agrees that so long as any of the Bonds are Outstanding it will
cause to be deposited in the Bond Fund sufficient sums solely and
only from revenues and receipts derived pursuant to the Loan
Agreement (except interest paid from the proceeds from the sale
of the Bonds and accrued interest) promptly to meet and pay the
principal of, redemption premium, if any and interest on the
Bonds as the same become due and payable. Upon the occurrence of
an Event of Default under the Loan Agreement , Issuer covenants
and agrees that so long as any Bonds are Outstanding, it will
fully cooperate with the Trustee and with the Registered Owners
of the Bonds to protect the rights and security of the Registered
Owners of the Bonds . Nothing herein shall be construed as
requiring Issuer to operate the Project or to use any funds or
revenues from any source other than funds and revenues derived
pursuant to the Loan Agreement.
Section 4.04. Recordation. Issuer will execute and
deliver all indentures supplemental hereto, and Trustee will
cause this Indenture, the Loan Agreement and all supplements
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hereto and thereto as well as all Security Documents , and all .
supplements thereto and other instructions as may be required at
all times to be recorded, registered and filed and to be kept ,
recorded, registered and filed in such manner and in such places
as may be required by law in order fully to preserve and protect
the security of the Registered Owners of the Bonds and all rights
of the Trustee.
Section 4.05. Rights Under the Loan Agreement.
(a) Issuer will observe all of the obligations , terms
and conditions required on its part to be observed or performed
under the Loan Agreement .
(b) The Indenture and the rights and privileges of the
Trustee and the Registered Owners of the Bonds hereunder are
specifically made subject to the rights and privileges of
Borrower under the Loan Agreement and nothing herein shall be
construed to impair the rights and privileges granted to Borrower
under the Loan Agreement, except as otherwise provided in the
Loan Agreement.
(c) Issuer agrees that the Trustee as assignee of the
Loan Agreement may enforce , in its name or in the name of Issuer,
all rights of Issuer and all Obligations of Borrower under and
pursuant to the Loan Agreement for and on behalf of the
Registered Owners of the Bonds , whether or not Issuer is in
default hereunder.
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4-2
ARTICLE FIVE
REDEMPTION OF BONDS
Section 5 .01 . Mandatory Redemption of Bonds . The
Bonds shall all be redeemed in full at any time at the redemption
price equal to 100% of the principal amount thereof plus accrued
interest to the redemption date, if (i) as a result of any
changes in the Constitution of the State of Colorado or the
Constitution of the United States of America or of legislative or
administrative action (whether state or federal) or of final
decree, judgment or order of any court or administrative body
(whether state or federal) , or change in the Home Rule Charter of
the Issuer, the Loan Agreement becomes void or unenforceable or
impossible to perform in accordance with the intent and purpose
of the parties as expressed in the Loan Agreement , or (ii) all or
substantially all of the Project shall have been damaged or
destroyed or there occurs condemnation of all or substantially
all of the Project or the taking by eminent domain of such use of
control of the Project as in each case renders the Project
unsatisfactory to Borrower for its intended use and Borrower has
not elected, as expressed in a certificate delivered to the
Trustee within 120 days after the occurrence of such event , to
rebuild or restore the Project , or (iii) any Registered Owner has
elected to exercise his or its option to tender the Bonds to the
Trustee pursuant to the provisions of Section 2.03 hereof.
Section 5.02. Optional Redemption of Bonds. All Bonds
of this issue are subject to optional redemption prior to the
maturity date on July 1 , 1989, and on Interest Payment Dates
thereafter upon payment of the principal amount thereof plus
accrued interest thereon to the redemption date plus a premium of
one percent (1%) of the principal amount so redeemed. All Bonds
of this issue subject to optional redemption prior to their
respective maturity dates are redeemable in inverse order of
maturity and by lot within maturity.
Section 5.03. Partial Redemp.tion of Bonds. Bonds
shall be called for redemption only in integral multiples of
$5,000. If less than all of the Outstanding Bonds are to be
redeemed, except to the extent otherwise provided herein, the
Trustee shall select by lot those to be redeemed from among the
Bonds then subject to redemption, and for this purpose the
Trustee shall treat each Bond as representing that number of
Bonds which is obtained by dividing the principal amount of such
Bond by $5,000. Any Bond in a denomination greater than $5,000
and to be redeemed only in part shall be surrendered by the
Registered Owner thereof and the Issuer shall execute and the
Trustee shall authenticate and deliver to such Registered Owners ,
without charge, a new Bond of any authorized denomination
requested by such Registered Owner in an aggregate principal
amount equal to the unredeeme portion of the Bond so surrendered.
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Section 5.04. Notice of Redemption.
(a) The Bonds shall be called for redemption by the
Trustee as herein provided upon receipt by the Trustee at least
forty-five (45) days prior to the redemption date of a
certificate of Borrower specifying the principal amount of the
Bonds to be called for redemption, the applicable redemption
price or prices and the provision or provisions of this Indenture
pursuant to which such Bonds are to be called for redemption. In
the case of every redemption, the Trustee shall cause notice of
such redemption to be given by mailing a copy of the redemption
notice by certified or registered first-class postage prepaid
mail not less than thirty (30) days before the redemption date to
United Bank of Greeley and Prudential-Bache Securities, Inc. ,
Anderson DeMonbrun Division, Denver, Colorado and to each
Registered Owner of the Bonds. Failure to give such notice by
mailing to the Registered Owner of any Bond designated for
redemption, or any defect therein, shall not affect the validity
of the proceedings for the redemption of any other Bond. Any
notice mailed as provided in this subsection shall be
conclusively presumed to have been duly given, whether or not the
Registered Owner receives the notice.
(b) Each notice of redemption shall specify the date
fixed for redemption, the Bond or Bonds to be redeemed, the
redemption price, the place or places of payment , that payment
will be made upon presentation and surrender of the Bonds , that
interest accrued to the date fixed for redemption will be paid as
specified in said notice, and that on and after said date
interest thereon will cease to accrue. If less than all the
Outstanding Bonds are to be redeemed, the notice of redemption
shall specify the numbers of the Bonds to be redeemed.
Section 5 .05. Bonds Due and Payable on Redemption
Date; Interest Ceases to Accrue. On or before the business day
prior to the redemption date specified in the notice of
redemption, an amount of money sufficient to redeem all the Bonds
called for redemption at the appropriate redemption price,
including accrued interest to the date fixed for redemption,
shall be deposited with the Trustee. Interest due on or prior to
any redemption date shall continue to be payable to the
Registered Owners of the Bonds according to their terms and in
the customary manner. On the redemption date the principal
amount of each Bond to be redeemed, together with the accrued
interest thereon to such date and redemption premium, if any,
shall become due and payable and from and after such date, notice
having been given and deposit having been made in accordance with
the provisions of this Article, then, notwithstanding that any
Bonds called for redemption shall not have been surrendered, no
further interest shall accrue on any such Bonds. If any Bond
called for redemption shall not be paid upon surrender thereof
for redemption, the Bond shall continue to bear interest until
paid at the Initial Interest Rate or the Adjusted Interest Rate,
as the case may be, specified in the Bond. From and after such
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date of redemption (such notice having been given and such .
deposit having been made) the Bonds to be redeemed shall no
longer be deemed to be Outstanding hereunder, and Issuer shall be
under no further liability in respect thereof.
Section 5.06. Cancellation. All Bonds which have been
redeemed shall be cancelled by Trustee and destroyed as provided
in Section 2 . 10 hereof.
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5-3
ARTICLE SIR
INVESTMENTS
Section 6.01 Investment of Bond Fund, Construction
Fund and Reserve Fund Moneys . All moneys held as a part of the
Bond Fund, Construction Fund and Reserve Fund shall be invested
or reinvested by the Trustee , at the written request and
direction of Borrower' s Representative, in Federal Securities ,
certificates of deposit or repurchase agreements secured by
Federal Securities .
The Trustee shall sell and reduce to cash a sufficient
amount of such investments in the Construction Fund upon the
written direction of the Borrower' s Representative and shall sell
and reduce to cash a sufficient amount of such investments in the
Bond Fund and/or Reserve Fund whenever the cash balance in the
Bond Fund is insufficient to make a payment on the Bonds. The
Trustee may make any and all such investments through its trust
department.
Any and all such investments or reinvestments shall be
subject to full and complete compliance at all times with the
covenants and provisions of Section 6.02 hereof.
Article 6.02. Arbitrage.
(a) In reliance upon the Borrower' s covenant in
Section 11 .01 of the Loan Agreement, Issuer and Trustee each
hereby covenant for the benefit of each Registered Owner of the
Bonds that no use will be made of the proceeds of the Bonds which
will cause the Bonds to be "arbitrage bonds" within the meaning
of Section 103 (c) of the Internal Revenue Code of 1954, as
amended .
(b) Unless otherwise required by Section 103 (c) of the
Code, the Chairman of the Board of County Commissioners or any
other officer of the Issuer having responsibility with respect to
the issuance of any of the Bonds shall , on or prior to the date
of issuance of such Bonds , either alone or in conjunction with
any other officer, employee, consultant or agent of the Issuer,
deliver to the Trustee and Borrower a certificate on behalf of
Issuer stating the reasonable expectations of the Issuer on the
date of the issue of the Bonds as to future events , and set forth
(in brief and summary terms) the facts and estimates on which the
Issuer' s expectations are based and state that , to the best of
the knowledge and belief of the certifying officer(s) the
Issuer' s expectations are reasonable.
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ARTICLE SEVEN
DISCHARGE OF LIEN
Section 7 .01 . Discharge of the Lien.
(a) If the Issuer shall pay or cause to be paid to the
Trustee, for the Registered Owners of the Bonds , the principal
and interest to become due thereon at the times and in the manner
stipulated herein, and if the Issuer shall keep , perform and
observe all and singular the covenants and promises in the Bonds
and in this Indenture expressed to be kept , performed and
observed by it or on its part, and if all fees and expenses of
the Trustee required by this Indenture to be paid shall have been
paid, then these presents and the estate and rights hereby
granted shall cease, determine and be void, and thereupon the
Trustee shall cancel and discharge the lien of this Indenture,
and execute and deliver to the Issuer or Borrower such
instruments in writing as shall be requisite to satisfy the lien
hereof, and assign and deliver to the Borrower any property at
the time subject to the lien of this Indenture which may then be
in its possession, and deliver any amounts required to be paid to
the Issuer under Section 8.05 hereof except cash and securities
held by the Trustee for the payment of the principal of, interest
on, and any premium due in connection with the redemption of the
Bonds still Outstanding.
(b) If the Trustee shall hold sufficient moneys
hereunder to provide for payment of the whole amount of the
principal of, redemption premium, if any, and interest due and
payable and thereafter to become due and payable upon all of the
Bonds , together with all other sums payable or which may
thereafter become payable hereunder by Issuer, notwithstanding
that all of the Bonds have not yet become due and payable, the
Trustee , on demand of Borrower, shall turn over to Borrower any
surplus in the Bond Fund and Reserve Fund and in any other fund
created under this Indenture in excess of the sum sufficient to
pay the whole amount of principal of, redemption premium, if any,
and interest due and payable and thereafter to become due and
payable upon all the Bonds, together with all other sums payable
or which may thereafter become payable hereunder by Issuer.
(c) All Outstanding Bonds shall , prior to the
maturity, mandatory prepayment date or redemption date thereof,
be deemed to have been paid within the meaning and with the
effect expressed in this Section if (i) in case such Bonds are to
be redeemed on any date prior to their maturity, Borrower shall
have given to the Trustee, in form satisfactory to it ,
irrevocable instructions to give, on a date in accordance with
the provisions of Section 5.04 hereof, notice of redemption of
such Bonds on said redemption date , (ii) there shall have been
deposited with the Trustee either moneys in an amount which shall
be sufficient , or Federal Securities which shall not contain
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provisions permitting redemption prior to maturity at the option .
of the issuer thereof, the principal of and the interest on which
when due, and without any reinvestment thereof, will provide
moneys which, together with other available moneys , if any,
deposited with or held by Trustee at the same time shall be
sufficient to pay when due the principal of, redemption premium,
if any, and interest due and to become due on said Bonds on and
prior to the redemption date or maturity date thereof, as the
case may be, and (iii) in the event said Bonds are not by their
terms subject to redemption within the next sixty (60) days ,
Borrower shall have given the Trustee, in form satisfactory to
it , irrevocable instructions to give, as soon as practicable in
the same manner as the notice of redemption is given pursuant to
Section 5.04 hereof, a notice of the Registered Owners of such
Bonds that the deposit required by (ii) above has been made with
the Trustee and that said Bonds are deemed to have been paid in
accordance with this Section and stating such maturity or
redemption date upon which moneys are to be available for the
payment of the principal of, redemption premium, if any, and
interest on said Bonds . Neither the Federal Securities , nor
moneys deposited with the Trustee pursuant to this Section, nor
principal or interest payments on any such Federal Securities
shall be withdrawn or used for any purpose other than, and shall
be held in trust for, the payment of the principal of, redemption
premium, if any, and interest on said Bonds ; provided any cash
received from such principal or interest payments on such Federal
Securities deposited with the Trustee, if not then needed for
such purpose , shall , to the extent practicable , be reinvested in
Federal Securities maturing at the times and in amounts
sufficient to pay when due the principal of, redemption premium,
if any, and interest to become due on said Bonds on or prior to
such redemption date or maturity date thereof, as the case may
be.
(d) The release of the obligations of Issuer under
this Section shall be without prejudice to the rights of Trustee
to be paid reasonable compensation for all services rendered by
it hereunder and all its reasonable expenses , charges and other
disbursements incurred in the administration of the trust hereby
created and the exercise of its powers and performance of its
duties hereunder.
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ARTICLE EIGHT
DEFAULT AND REMEDIES
Section 8.01 . Events of Default. The occurrence of
any one or more of the following events or the existence of any
one or more of the following conditions shall constitute an Event
of Default under this Indenture:
(a) Default in the payment of the principal of or
redemption premium, if any, on any Bond when the same shall
become due and payable, whether at the stated maturity thereof or
upon presentation for redemption in accordance with Article Five
of this Indenture; or
(b) Default in the payment of any installment of
interest on any Bond when the same shall become due and payable;
or
(c) The occurrence of an Event of Default under
Section 12.01 of the Loan Agreement or Section 8 of the Mortgage .
Section 8.02. Remedies on Occurrence of Events of
Default . Upon the occurrence of an Event of Default , the Trustee
shall have the following rights and remedies which may be
pursued:
(a) Acceleration. The Trustee may, and upon the
written request of the Issuer or the Registered Owner of not less
than fifty percent (50%) in aggregate principal amount of the
Bonds then Outstanding, shall , by notice in writing given to
Issuer and Borrower , declare the principal amount of all Bonds
then Outstanding and the interest then accrued thereon to be
immediately due and payable, and said principal and interest
shall thereupon become immediately due and payable. Upon any
declaration of acceleration hereunder, Issuer and Trustee shall
immediately declare all payments under the Loan Agreement to be
immediately due and payable as provided in Section 12.02 of the
Loan Agreement.
(b) Receivership. Upon the filing of a bill in equity
or other commencement of judicial proceedings to enforce the
rights of the Trustee and of the Registered Owners of the Bonds
the Trustee shall be entitled, as a matter of right, to the
appointment of a receiver or receivers of the Trust Estate , and
of the revenues , income, produce and profits thereof, pending
such proceedings , but , notwithstanding the appointment of any
receiver, trustee or other custodian, the Trustee shall be
entitled to the possession and control of any cash, securities or
other instruments at the time held by, or payable or deliverable
under the provisions of this Indenture to , the Trustee.
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(c) Suit for Judgment on the Bonds . The Trustee may, .
and upon the written request of the Registered Owners of not less
than twenty-five percent (25%) in aggregate principal amount of
Bonds then Outstanding shall , proceed to protect and enforce its
rights and the rights of the Registered Owners under the Act , the
Bonds , the Loan Agreement , this Indenture, and any provision of
law by such suit , action or special proceedings as the Trustee ,
being advised by counsel , shall deem appropriate. Any judgment
against Issuer shall be enforceable only against the funds and
accounts hereunder in the hands of the Trustee pursuant to this
Indenture and the Loan Agreement. There shall not be authorized
any deficiency judgment against the general credit of Issuer. No
recovery of any judgment by Trustee shall in any manner or to any
extent affect the lien of this Indenture or any rights , powers or
remedies of Trustee hereunder, or any lien, rights , powers and
remedies of the Registered Owners of the Bonds , but such lien,
rights , powers and remedies of the Trustee and of the Registered
Owners shall continue unimpaired as before.
(d) Rights and Remedies Not Exclusive. No right or
remedy is intended to be exclusive of any other right or remedy,
but each and every such right or remedy shall be cumulative and
in addition to any other right or remedy given hereunder or now
or hereafter existing at law or in equity or by statute .
(e) Trustee Action Required by Registered Owners of
the Bonds . If any Event of Default shall have occurred and if
requested by the Registered Owners of twenty-five percent (25%)
in aggregate principal amount of the Bonds then Outstanding and
indemnified as provided in Section 9.01 hereof, the Trustee shall
be obligated to exercise such one or more of the rights and
powers conferred by this Section 8.02 as Trustee, which it shall ,
being advised by counsel , deem most expedient in the interests of
the Registered Owners of the Bonds.
Section 8.03. Majority of Registered Owners of the
Bonds May Control Proceedings . Anything in this Indenture to the
contrary notwithstanding, the Registered Owners of a majority in
aggregate principal amount of the Bonds then Outstanding shall
have the right, at any time, to the extent permitted by law, by
an instrument or instruments in writing executed and delivered to
the Trustee, to direct the time, method and place of conducting
all proceedings to be taken in connection with the enforcement of
the terms and conditions of this Indenture or for the
appointment of a receiver, and any other proceedings hereunder;
provided that such direction shall not be otherwise than in
accordance with the provisions hereof.
Section 8.04. Rights and Remedies of Registered Owners
of the Bonds . No Registered Owner of any Bond shall have any
right to institute any suit , action or proceeding in equity or at
law for the enforcement of this Indenture or for the execution of
any trust hereof or for the appointment of a receiver or any
other remedy hereunder, unless a default has occurred of which
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the Trustee has been notified as provided in Subsection 9.01 (i) •
hereof, or of which under that Subsection it is deemed to have
notice and unless such default shall have become an Event of
Default and the Registered Owners of not less than twenty-five
percent (25%) in aggregate principal amount of Bonds then
Outstanding shall have made written request to Trustee and shall
have offered reasonable opportunity either to proceed to exercise
the powers hereinabove granted or to institute such action, suit
or proceedings in its own name, nor unless they have also offered
to Trustee indemnity as provided in Section 9 .01 hereof, nor
unless Trustee shall thereafter fail or refuse to exercise the
powers hereinbefore granted, or to institute such action, suit or
proceeding in its own name ; and such notification, request and
offer of indemnity are hereto declared in every case at the
option of the Trustee to be conditions precedent to the execution
of the powers and trusts of this Indenture, and to any action or
cause of action for the enforcement of this Indenture , or for the
appointment of a receiver or for any other remedy hereunder; it
being understood and intended that no one or more Registered
Owners of Bonds shall have any right in any manner whatsoever to
affect , disturb or prejudice the lien of this Indenture by his ,
her , its or their action or to enforce any right hereunder except
in the manner herein provided and that all proceedings at law or
in equity shall be instituted , had and maintained in the manner
herein provided and for the equal benefit of the Registered
Owners of all Bonds then Outstanding. Nothing contained in this
Indenture shall , however, affect or impair the right of any
Registered Owner of Bonds to enforce the payment of the principal
of, redemption premium, if any, or interest on any Bond at and
after the maturity or mandatory prepayment date thereof, or the
obligation of Issuer to pay the principal of , redemption premium,
if any, and interest on each of the Bonds to the respective
Registered Owner of the Bonds at the time and place, from the
source and in the manner herein and in the Bonds expressed.
Section 8 .05. Application of Moneys . All moneys
received by the Trustee pursuant to any right given or action
taken under the provisions of this Article shall , after payment
of the costs and expenses of the proceedings resulting in the
collection of such moneys and the expenses , liabilities and
advances incurred or made by the Trustee, be deposited in the
Bond Fund and all moneys so deposited in the Bond Fund and all
moneys held or deposited in the Bond Fund during the continuance
of an Event of Default and available for payment of the Bonds
shall (after payment of the fees and expenses of the Trustee) be
applied as follows :
(a) Unless the principal of all the Bonds shall have
become or shall have been declared due and payable, all such
moneys shall be applied :
First--To the payment to the persons entitled thereto
of all installments of interest then due on the Bonds ,
in the order of the maturity of the installments of
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such interest and, if the amount available shall not be .
sufficient to pay in full any particular installment,
then to the payment ratably, according to the amounts
due on such installment, to the persons entitled
thereto, without any discrimination or privilege; and
Second--To the payment to the persons entitled thereto
3r-mi unpaid principal of and redemption premium, if
any, on any of the Bonds which shall have become due
(other than Bonds called for redemption for the payment
of which moneys are held pursuant to the provisions of
this Indenture) , in the order of their due dates (with
interest on such Bonds from the respective dates upon
which they become due, to the maximum extent permitted
by law, at the rates borne by the Bonds) , and, if the
amount available shall not be sufficient to pay in full
the Bonds due on any particular date , together with
such interest , then to the payment ratably, according
to the amount of principal due on such date, to the
persons entitled thereto, without any discrimination or
privilege.
(b) If the principal of all the Bonds shall have
become due or shall have been declared due and payable, all such
moneys shall be applied to the payment of the principal and
interest then due and unpaid upon all of the Bonds (together with
interest on overdue Bonds) , without preference or priority of
principal over interest or of interest over principal , or of any
installment of interest over any other installment of interest ,
or of any Bond over any other Bond, ratably according to the
amount due respectively for principal and interest , to the
persons entitled thereto, without any discrimination or
privilege.
(c) If the principal of all the Bonds shall have been
declared due and payable, and if such declaration shall
thereafter have been rescinded and annulled under the provisions
of this Article then, subject to the provisions of Subsection
8 .05(b) hereof, in the event that the principal of all the Bonds
shall later become due or be declared due and payable, the moneys
shall be applied in accordance with the provisions of Subsection
8.05(a) hereof.
(d) Whenever monies are to be applied pursuant to the
provisions of this Section, such monies shall be applied at such
time , and from time to time, as the Trustee shall determine,
having due regard to the amount of such monies available for
application and the likelihood of additional monies becoming
available for such application in the future. Whenever the
Trustee shall apply such funds , it shall fix the date (which
shall be an Interest Payment Date unless it shall deem another
date more suitable) , upon which such application is to be made,
and upon such date interest on the amount of principal to be paid
on such date shall cease to accrue. Such interest shall be paid
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to the Registered Owners , determined as of the close of business
on the special record date (the "Special Record Date") , which
shall be fixed by the Paying Agent for such purpose, irrespective
of any transfer of ownership of any Bond subsequent to such
Special Record Date and prior to the date fixed by the Paying
Agent for the payment of such interest . Notice of the Special
Record Date and of the date fixed for the payment of such
interest shall be given by sending a copy thereof by first-class ,
postage prepaid mail, at least ten (10) days prior to the Special
Record Date , to Prudential-Bache Securities , Inc. , Anderson
DeMonbrun Division, and United Bank of Denver, N.A. , Denver,
Colorado, and to the Registered Owner of each Bond upon which
interest will be paid, determined as of the close of business on
the day preceding such mailing, at the address appearing on the
registration books of the Issuer maintained by the Registrar.
The Trustee shall not be required to make payment to the
Registered Owner of any Bond until such Bond shall be presented
to the Trustee for appropriate endorsement or for cancellation if
fully paid.
(e) Whenever all of the Bonds and interest thereon
have been paid under the provisions of this Section and all
expenses and fees of the Trustee and Issuer and all
Administration Expenses have been paid, any balance remaining in
the Bond Fund shall be paid to Borrower upon the expiration of
the term of the Loan Agreement , as provided in Section 3.15
hereof.
Section 8.06. Trustee May Enforce Rights Without
Bonds . All rights of action and claims under this Indenture or
any of the Bonds Outstanding hereunder may be enforced by the
Trustee without the possession of any of the Bonds or the
production thereof in any trial or proceedings relative thereto.
Any suit or proceeding instituted by the Trustee shall be brought
in its name as the Trustee, without the necessity of joining as
plaintiffs or defendants any Registered Owners of the Bonds , and
any recovery of judgment shall be for the ratable benefit of the
Registered Owners of the Bonds , subject to the provisions of this
Indenture.
Section 8.07. Trustee to File Proofs of Claim in
Receivership, Etc. In the case of any receivership, insolvency,
bankruptcy, reorganization, arrangement, adjustment , composition
or other judicial proceedings affecting the Project or Borrower,
the Trustee shall , to the extent permitted by law, be entitled to
file such proofs of claims and other documents as may be
necessary or advisable in order to have claims of the Trustee and
of the Registered Owners of the Bonds allowed in such proceedings
for the entire amount due and payable by Issuer under this
Indenture, or by Borrower, as the case may be , at the date of the
institution of such proceedings and for any additional amount
which may become due and payable by it after such date , without
prejudice, however, to the right of any Registered Owner to file
a claim in his own behalf.
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Section 8.08. Delay or Omission No Waiver. No delay .
or omission of the Trustee or of any Registered Owner to exercise
any right or power accruing upon any default shall exhaust or
impair any such right or power or shall be construed to be a
waiver of any such default, or acquiescence therein; and every
power and remedy given by this Indenture may be exercised from
time to time and as often as may be deemed expedient.
Section 8.09. No Waiver of One Default to Affect
Another. No waiver of any default hereunder, whether by the
r'1' ustee or the Registered Owners , shall extend to or affect any
subsequent or any other then existing default or shall impair any
rights or remedies consequent thereon.
Section 8.10. Discontinuance of Proceedings on
Default ; Position of Parties Restored. In case the Trustee shall
have proceeded to enforce any right under this Indenture and such
proceedings shall have been discontinued or abandoned for any
reason, or shall have been determined adversely to the Trustee ,
then and in every such case Issuer and the Trustee shall be
restored to their former positions and rights hereunder with
respect to the Trust Estate, and all rights , remedies and powers
of the Trustee shall continue as if no such proceedings had been
taken.
Section 8.11 . Waivers of Events of Default. The
Trustee may in its discretion, waive any Event of Default
hereunder and its consequences and rescind any declaration of
maturity of principal of and interest on the Bonds , and shall do
so upon the written request of the Registered Owners of two-
thirds (2/3) in aggregate principal amount of all the Bonds then
Outstanding; provided , however, that there shall not be waived
without the consent of the Registered Owners of one hundred
percent (100%) of the Bonds then Outstanding as to which the
Event of Default exists : (a) Any Event of Default with respect to
the payment of the principal of or redemption premium, if any, on
any Bonds at the date of maturity specified therein or the date
of redemption applicable thereto; or (b) Any Event of Default
with respect to the payment when due of the interest on any such
Bonds , unless prior to such waiver or rescission, all arrears of
interest or all arrears of payments of principal and redemption
premium, if any, then due, as the case may be (with interest upon
such principal and redemption premium, if any, to the maximum
extent permitted by law, at the rates borne by the Bonds) , and
all expenses of the Trustee in connection with such default shall
have been paid or provided for. In case of any such waiver or
rescission, or in case any proceedings taken by Trustee on
account of any such default shall have been discontinued or
abandoned or determined adversely to Trustee, then in every such
case Issuer, Trustee and the Registered Owners shall be restored
to their former positions and rights hereunder respectively, but
no such waiver or rescission shall extend to any subsequent or
other default, or impair any right consequent thereon.
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Section 8.12. Notice of Default ; Opportunity to Cure
Defaults .
(a) Trustee will file written notice with the Borrower
and the Issuer of any default under this Indenture or the Loan
Agreement of which it has actual knowledge within ten (10) days
of its receipt of such actual knowledge.
(b) Anything herein to the contrary notwithstanding,
no default under Subsection 8.01 (c) hereof occasioned by a
default under Subsection 12.01 (b) of the Loan Agreement or
Subsection 8 (b) of the Mortgage shall constitute an Event of
Default until actual notice of such default by registered or
certified mail shall be given by the Trustee or by the Registered
Owners of not less than twenty-five percent (257) in aggregate
principal amount of all Bonds Outstanding to Issuer and Borrower,
and Issuer or Borrower shall have had ninety (90) days after
receipt of such notice to correct said default or cause said
default to be corrected, and shall not have corrected said
default or caused said default to be corrected within the
applicable period; provied, however, if said default be such that
it cannot be corrected within the applicable period, it shall not
constitute an Event of Default if corrective action is instituted
within the applicable period and diligently pursued thereafter
until the default is corrected.
(c) With regard to any alleged default concerning
which notice is given to Borrower under the provisions of
Subsection 8. 12 (a) hereof, Issuer hereby grants to Borrower full
authority for account of Issuer to perform any covenant or
obligation the nonperformance of which is alleged in said notice
to constitute a default , in the name and stead of Issuer with
full power to do any and all things and acts to the same extent
that Issuer could do and perform any such things and acts and
with full power of substitution.
(d) The Trustee shall give to the Registered Owners of
all Bonds notice of all defaults or Events of Default known to
the Trustee , within ninety (90) days after the occurrence of a
default or Event of Default unless such default or Event of
Default shall have been cured before the giving of such notice;
provided that , except in the case of Events of Default in the
payment of the principal of or interest on any of the Bonds , the
Trustee shall be protected in withholding such notice if and so
long as the Board of Directors , the executive committee or a
trust committee of directors or the chief executive officer of
the Trustee in good faith determines that the withholding of such
notice is not detrimental to the interest of the Registered
Owners of the Bonds .
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ARTICLE NINE
CONCERNING TAE TRUSTEE
Section 9.01 . Duties of Trustee. Trustee hereby
accepts the trusts imposed upon it by this Indenture and agrees
to perform said trusts , but only upon and subject to the
following express terms and conditions , and no implied covenants
or obligations shall be read into this Indenture against Trustee:
(a) The Trustee, prior to the occurrence of an Event
of Default and after the curing of any Event of Default which may
have occurred, shall undertake to perform such duties and only
such duties as are specifically set forth in this Indenture. In
case an Event of Default has occurred (which has not been cured
or waived) the Trustee shall exercise such of the rights and
powers vested in it by this Indenture and use the same degree of
care and skill in their exercise , as a reasonable and prudent man
would exercise or use under the circumstances in the conduct of
his own affairs .
(b) The Trustee may execute any of the trusts or
powers hereof and perform any of its duties by or through
attorneys , agents , receivers or employees but shall be answerable
for the conduct of the same in accordance with the standard
specified above, and shall be entitled to act upon an Opinion of
Counsel concerning all matters of trust hereof and the duties
hereunder, and may in all cases pay such reasonable compensation
to all such attorneys , agents , receivers and employees as may
reasonably be employed in connection with the trusts hereof. The
Trustee shall not be responsible for any loss or damage resulting
from any action or nonaction taken or omitted to be taken in good
faith in reliance upon an Opinion of Counsel.
(c) The Trustee shall not be responsible for any
recital herein or in the Bonds (except in respect to the
certificate of authentication of the Trustee endorsed on the
Bonds) , or collecting any insurance moneys or for the validity of
the execution by Issuer of this Indenture or of any supplements
hereto or instruments of further assurance, or for the
sufficiency of the security for the Bonds issued hereunder or
intended to be secured hereby, or for the value or title to the
Project, and the Trustee shall not be bound to ascertain or
inquire as to the performance or observance of any covenants ,
conditions or agreements on the part of Issuer or on the part of
Borrower in connection with the matters referred to in Section
3.11 hereof, except as hereinafter set forth; but Trustee may
require of Issuer or Borrower full information and advice as to
the performance of the covenants , conditions and agreements
aforesaid. The Trustee shall have no obligation to perform any
of the duties of Issuer under the Loan Agreement; and the Trustee
9-1
shall not be responsible or liable for any loss suffered in •
connection with any investment of funds made by it in accordance
with Section 6.01 hereof.
(d) The Trustee shall not be accountable for the use
of any proceeds of the Bonds authenticated or delivered
hereunder.
(e) The Trustee may become the owner of the Bonds with
the same rights which it would have if not Trustee.
(f) The Trustee shall be protected in acting upon any
notice, request , consent, certificate, order, affidavit , letter,
telegram or other paper or document believed to be genuine and
correct and to have been signed or sent by the proper person or
persons . Any action taken by the Trustee pursuant to this
Indenture upon the request or authority or consent of any person
who at the time of making such request or giving such authority
or consent is the owner of any Bond shall be conclusive and
binding upon all future owners of the same Bond and any Bond or
Bonds issued in place thereof.
(g) As to the existence or nonexistence of any fact or
as to the sufficiency or validity of any instrument, paper or
proceedings , the Trustee shall be entitled to rely upon a
certificate signed on behalf of Issuer by the Issuer' s
Representative or such other person as may be designated for such
purpose by a Certified Ordinance or Resolution, as the case may
be, of the Governing Body of the Issuer as sufficient evidence of
the facts therein contained, and, prior to the occurrence of a
default of which the Trustee has been notified as provided in
Subsection 9.01 (i) hereof or of which by said Subsection it is
deemed to have notice, shall also be at liberty to accept a
similar certificate to the effect that any particular dealing,
transaction or action is necessary or expedient , but may at its
discretion secure such further evidence deemed necessary or
advisable, but shall in no case be bound to secure the same.
(h) The permissive right of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty and
the Trustee shall not be answerable for other than its negligence
or willful default as provided herein.
(i) The Trustee shall not be required to take notice
or be deemed to have notice of any default hereunder except
failure by the Issuer to cause to be made any of the payments to
the Trustee required to be made by Article Three hereof unless
the Trustee shall be specifically notified in writing of such
default by Issuer or by the Registered Owners of at least
twenty-five percent (25%) in aggregate principal amount of Bonds
then Outstanding, and all notices or other instruments required
by this Indenture to be delivered to the Trustee , must, in order
to be effective, be delivered at the principal office of the
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Trustee, and in the absence of such notice so delivered, the .
Trustee may conclusively assume there is no default except as
aforesaid.
(j) All moneys received by the Trustee shall , until
used or applied or invested as herein provided, be held in trust
in the manner and for the purposes for which they were received
but need not be segregated from other funds except to the extent
required by this Indenture or by law. The Trustee shall not be
under any liability for interest on any moneys received hereunder
except such as may be agreed upon.
(k) At any and all reasonable times the Trustee or its
duly authorized agents , attorneys , experts, engineers ,
accountants and representatives , shall have the right , but shall
not be required , to inspect any and all of the property pledged
herein, including all books , papers and records of Issuer
pertaining to the Project and the Bonds.
(1) The Trustee shall not be required to give any bond
or surety in respect of the execution of the said trusts and
powers or otherwise in respect of the premises .
(m) Notwithstanding anything in this Indenture
contained, the Trustee shall have the right , but shall not be
required, to demand, in respect of the authentication of any
Bonds, the withdrawal of any cash, or any action whatsoever
within the purview of this Indenture, any showings , certificates ,
opinions , appraisals or other information, or action of the
Borrower or evidence thereof, in addition to that by the terms
hereof required , as a condition of such action by the Trustee
deemed desirable for the purpose of establishing the right of
Issuer to the authentication of any Bonds , the withdrawal of any
cash, or the taking of any other action by the Trustee.
(n) Before taking any action under this Section the
Trustee may require that satisfactory indemnity be furnished to
it for the reimbursement of all expenses which it may incur and
to protect it against all liability, except liability which may
result from its negligence or willful default, by reason of any
action so taken.
(o) All records of the Trustee pertaining to the
Series 1984 Bonds shall be open during reasonable times for
inspection by representatives of the Borrower or the Issuer or
any Registered Owner of the Bonds.
(p) The Trustee shall notify the Borrower not more
than ninety (90) days nor less than sixty (60) days prior to the
beginning of any period during which any action must be taken to
continue the perfection of the security interest in the Project.
9-3
(q) Upon receipt by the Trustee of a certificate from .
the Borrower certifying compliance with the provisions of the
Loan Agreement, the Trustee shall do all acts necessary to
accomplish the partial or full release of the Project from the
Mortgage and Security Agreement as specifically requested by the
Borrower.
Section 9.02. Fees and Expenses of the Trustee. The
Trustee shall be entitled to payment and reimbursement for
reasonable fees for its services rendered hereunder as and when
the same become due and all expenses reasonably and necessarily
made or incurred by the Trustee in connection with such services
as and when the same become due as provided in Section 3 .12
hereof.
Section 9.03. Resignation or Replacement of Trustee.
(a) The present or any future Trustee may resign by
giving thirty (30) days ' notice of such resignation, to Issuer,
the Borrower, and by first-class , postage prepaid mail to each
Registered Owner of each Bond determined as of the close of
business on the day preceding such mailing, at the address
appearing on the registration books of the Issuer maintained by
the Registrar, specifying the date when such resignation shall
take effect. Such resignation shall take effect on the date
specified in such notice unless a successor shall be previously
appointed as hereinafter provided, in which event such
resignation shall take effect immediately on the appointment of
such successor. The present or any future Trustee may be removed
at any time by an instrument in writing, executed by a majority
of the Registered Owners in aggregate principal amount of the
Bonds then Outstanding.
(b) In case the present or any future Trustee shall at
any time resign or be removed or otherwise become incapable of
acting, a successor may be appointed by the Registered Owners of
a majority in aggregate principal amount of the Bonds then
Outstanding by an instrument or concurrent instruments signed by
such Registered Owners , or their attorneys-in-fact appointed;
provided that Issuer may, by an instrument executed by order of
its Governing Body appoint a successor until a new successor
shall be appointed by the Registered Owners as herein authorized .
Issuer, upon making such appointment , shall forthwith give notice
thereof to the Registered Owners and to Borrower, which notice
may be given concurrently with the notice of resignation given by
any resigning Trustee . Any successor so appointed by Issuer
shall immediately and without further act be superseded by a
successor appointed in the manner above provided by the
Registered Owners of a majority in aggregate principal amount of
the Bonds then Outstanding.
(c) Every successor Trustee shall always be a bank or
trust company in good standing, qualified to act hereunder, and
having a capital and surplus of not less than $10,000,000, if
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there be such an institution willing, qualified and able to .
accept the trust upon reasonable or customary terms . Any
successor appointed hereunder shall execute, acknowledge and
deliver to Issuer an instrument accepting such appointment
hereunder, and thereupon such successor shall, without any
further act , deed or conveyance, become vested with all the
estates , properties , rights , powers and trusts of its predecessor
in the trust hereunder with like effect as if originally named as
the Trustee herein; but the Trustee retiring shall , nevertheless,
on the written demand of its successor, execute and deliver an
instrument or instruments conveying and transferring to such
successor, upon the trusts herein expressed , all the estates ,
properties, rights, powers and trusts of the predecessor, who
shall duly assign, transfer and deliver to the successor all
properties and moneys held by it under this Indenture. If any
instrument from Issuer is required by any successor for more
fully and certainly vesting in and confirming to it , those
instruments shall be made , executed, acknowledged and delivered
by Issuer on request of such successor.
(d) The instruments evidencing the resignation or
removal of the Trustee and the appointment of a successor
hereunder, together with all other instruments provided for in
this Section shall be filed or recorded by the successor Trustee
in each recording office, if any, where this Indenture shall have
been filed or recorded.
Section 9.04. Conversion, Consolidation or Merger of
Trustee . Any bank or trust company or other Person into which
Trustee or its successor may be converted or merged, or with
which it may be consolidated , or to which it may sell or transfer
its trust business as a whole shall be the successor of the
Trustee under this Indenture with the same rights , powers , duties
and obligations and subject to the same restrictions , limitations
and liabilities as its predecessor, all without the execution or
filing of any papers or any further act on the part of any of the
parties hereto or thereto, anything herein or therein to the
contrary notwithstanding. In case any of the Bonds to be issued
hereunder shall have been authenticated, but not delivered, any
successor Trustee may adopt the certificate of any predecessor
Trustee, and deliver the same as authenticated. In case any of
such Bonds shall not have been authenticated, any successor
Trustee may authenticate such bonds in the name of such
predecessor Trustee.
Section 9.05. Trustee Protected in Relying upon
Resolutions, Ordinances , Etc. The resolutions , ordinances ,
opinions , certificates and other instruments provided for in this
Indenture may be accepted by the Trustee as conclusive evidence
of the facts and conclusions stated therein and shall be full
warrant , protection and authority to the Trustee for the release
of property and the withdrawal of cash hereunder. The Trustee
shall not be under any responsibility to seek the approval of any
expert for any of the purposes expressed in this Indenture,
9-5
except that nothing contained in this Section shall relieve the
Trustee of its obligations to exercise reasonable care with
respect to the approval of independent experts who may furnish
opinions or certificates to the Trustee pursuant to any provision
of this Indenture.
(Balance of this page intentionally left blank.)
9-6
ARTICLE TEN
SUPPLEMENTAL INDENTURES AND
AMENDMENTS OF THE LOAN AGREEMENT
Section 10.01 . Supplemental Indentures Not Requiring
Consent of Registered Owners of the Bonds. Issuer and the
Trustee may, without the consent of, or notice to, the Registered
Owners of the Bonds , enter into such Indentures or agreements
supplemental hereto (which supplemental indentures or agreements
shall thereafter form a part hereof) for any one or more or all
of the following purposes :
(a) To add to the covenants and agreements in this
Indenture;
(b) To cure any ambiguity, or to cure, correct or
supplement any formal defect or omission or inconsistent
provision contained in this Indenture, or to make any provisions
with respect to matters arising under this Indenture or for any
other purpose if such provisions are necessary or desirable and
do not adversely affect the interests of the Registered Owners of
the Bonds ;
(c) To authorize the issuance of Additional Bonds,
subject to the requirements of Section 2.11 hereof;
(d) To subject to this Indenture additional revenues ,
properties or collateral ; or
(e) To grant or confer upon the Trustee for the
benefit of the Registered Owners of the Bonds any additional
rights , remedies , powers or authority that may lawfully be
granted to or conferred upon the Registered Owners of the Bonds
or the Trustee .
Section 10.02.Supplemental Indentures Requiring Consent
of Registered Owners of the Bonds .
(a) Except for supplemental indentures delivered
pursuant to Section 10.01 hereof, the Registered Owners of not
less than two-thirds (2/3) in aggregate principal amount of the
Bonds then Outstanding shall have the right, from time to time,
to consent to and approve, the execution by Issuer and the
Trustee of such indenture or indentures supplemental hereto as
shall be deemed necessary or desirable by Issuer for the purpose
of modifying, altering, amending, adding to or rescinding, in any
particular any of the terms or provisions contained in this
Indenture; provided, however, that without the consent of the
Registered Owners of all the Bonds then Outstanding, nothing
herein contained shall permit , or be construed as permitting:
10-1
(i) Any change in the terms of redemption or .
maturity of the principal of or the interest on
any Outstanding Bonds or a reduction in the
principal amount of or redemption premium
payable upon any redemption of any Outstanding
Bond or the rate of interest thereon, without
the consent of the Registered Owner of such
Bond;
(ii) The deprivation of the Registered Owner of any
Bond then Outstanding of the lien created by
this Indenture (other than as originally
permitted hereby) ;
(iii) A privilege or priority of any Bond or Bonds
over any other Bond or Bonds ; or
(iv) A reduction in the aggregate principal amount of
the Bonds required for consent to such
supplemental indenture.
(b) Upon the execution of any supplemental indenture
pursuant to the provisions of this Section, this Indenture shall
be deemed to be modified and amended in accordance therewith, and
the respective rights, duties and obligations under this
Indenture of Issuer, the Trustee and all Registered Owners of
Bonds then Outstanding, shall thereafter be determined , exercised
and enforced hereunder, subject in all respects to such
modifications and amendments .
(c) If at any time Issuer shall request the Trustee to
enter into such supplemental indenture for any of the purposes of
this Section, Trustee shall , upon being satisfactorily
indemnified with respect to expenses , cause notice of the
proposed execution of such supplemental indenture to be mailed by
registered mail, first-class postage prepaid, to the Borrower
and the original purchasers of the Bonds , at least thirty (30)
days prior to the proposed date of execution and delivery of any
such supplemental indenture, and by certified or registered
first-class postage prepaid mail to the Registered Owner of each
Bond determined as of the close of business on the date preceding
such mailing, at the address appearing on the registration books
of the Issuer maintained by the Registrar. Such notice shall
briefly set forth the nature of the proposed supplemental
indenture and shall state that copies thereof are on file at the
principal office of the Trustee for inspection by all parties
notified. If, within sixty (60) days or such longer period as
shall be prescribed by Issuer following the giving of such
notice, the Registered Owners of not less than two-thirds (2/3)
in aggregate principal amount of the Bonds then Outstanding at
the time of the execution of any such supplemental indenture
shall have consented to and approved the execution thereof as
herein provided , no Registered Owner of any Bond shall have any
right to object to any of the terms and provisions contained
10-2
therein, or the operation thereof, or in any manner to question
the propriety of the execution thereof, or to enjoin or restrain
the Trustee or Issuer from executing the same or from taking any
action pursuant to the provisions thereof.
Section 10.03. Execution of Supplemental Indenture.
The Trustee is authorized to join with Issuer in the execution of
any such supplemental indenture and to make further agreements
and stipulations which may be contained therein, but the Trustee
shall not be obligated to enter into any such supplemental
indenture which affects its rights , duties or immunities under
this Indenture.
Section 10.04. Consent of Borrower. Anything herein
to the contrary notwithstanding, a supplemental indenture under
this Article Ten which affects the rights of Borrower shall not
become effective unless and until Borrower shall have consented
to the execution and delivery of such supplemental indenture.
Section 10.05. Amendments , Etc. , of the Loan Agreement
Not Requiring Consent of the Registered Owners of the Bonds .
Issuer and the Trustee may, without the consent of or notice to
the Registered Owners of the Bonds, consent to any amendment ,
change or modification of the Loan Agreement as may be required
(a) by the provisions of the Loan Agreement and this Indenture,
(b) for the purpose of curing any ambiguity or formal defect or
omission in the Loan Agreement , or (c) in connection with any
other change therein which, in the judgment of the Trustee, does
not prejudice the Trustee or the Registered Owners of the Bonds .
Section 10.06. Amendments, Etc. of the Loan Agreement
Requiring Consent of Regisitered Owners of the Bonds. Except for
the amendments , changes or modifications permitted by Section
10.05 hereof, neither Borrower nor the Trustee shall consent to
any other amendment , change or modification of the Loan Agreement
without the giving of notice and the written approval or consent
of the Registered Owners of not less than two-thirds (2/3) in
aggregate principal amount of the Bonds at the time Outstanding
given and procured as provided in Section 10.02 hereof. If at
any time Issuer and Borrower shall request the consent of the
Trustee to any such proposed amendment, change or modification of
the Loan Agreement the Trustee shall , upon being satisfactorily
indemnified with respect to expenses , cause notice of such
proposed amendment , change or modification to be given in the
same manner as provided in Section 10.02 hereof. Such notice
shall briefly set forth the nature of such proposed amendment ,
6 change or modification and shall state that copies of the
instrument containing the same are on file at the principal
office of Trustee for inspection by all Registered Owners of the
Bonds .
10-3
ARTICLE ELEVEN
MISCELLANEOUS
Section 11 .01 . Evidence of Signature of Registered
Owners and Ownership of Bonds . Any request , consent or other
instrument which the Indenture may require or permit to be signed
and executed by the Registered Owners of the Bonds may be in one
or more instruments of similar tenor, and shall be signed or
executed by such Registered Owners of the Bonds in person or by
their attorneys-in-fact or legal representatives appointed in
writing. Proof of the execution of any such instrument or by an
instrument appointing any such attorneys-in-fact or legal
representatives , or the ownership of Bonds shall be sufficient
(except as otherwise herein expressly provided) if made in the
following manner, but the Trustee may, nevertheless , in its
discretion, require further or other proof in cases where it
deems the same desirable:
(a) The fact and date of the execution by any
Registered Owner or its attorney-in-fact or legal representative
of such instrument may be proved by the certificate of any
officer authorized to take acknowledgments in the jurisdiction in
which he purports to act that the person signing such request or
other instrument acknowledged to him the execution hereof, or by
an affidavit of a witness of such execution, duly sworn to before
a notary public ;
(b) The fact of ownership or the Bonds and the amount
or amounts , numbers and other identification of such Bonds , and
the date of holding the same shall be proved by the registration
books of the Issuer maintained by the Registrar;
(c) Any request or consent of the owner of any Bond
shall bind all future owners of such Bond in respect of anything
done or suffered to be done by Issuer or the Trustee in
accordance herewith.
Section 11 .02. Disclaimer of General Liability. No
agreements or provisions contained in this Indenture nor any
agreement, covenant or undertaking by the Issuer contained in any
document executed by the Issuer in connection with the Project
shall give rise to any pecuniary liability of the Issuer or a
charge against its general credit or taxing powers , or shall
obligate the Issuer financially in any way except with respect to
the Project and the application of revenues therefrom and the
proceeds of the Bonds. No failure of the Issuer to comply with
any term, condition, covenant or agreement herein shall subject
the Issuer to liability for any claim for damages , costs or other
financial or pecuniary charge except to the extent that the same
can be paid or recovered from the Project , revenues therefrom or
proceeds of the Bonds ; and no execution on any claim, demand,
cause of action or judgment shall be levied upon or collected
11-1
Issuer: WELD COUNTY, COLORADO
P. 0. Box C
Greeley, Colorado 80632
Attn: County Clerk and Recorder
With Copy to County Attorney
Borrower: WELD MENTAL HEALTH CENTER, INC.
1306 11th Avenue
Greeley, Colorado 80631
Trustee : United Bank of Greeley
1000 10th Street
Greeley, Colorado 80632
Attn: Corporate Trust Division
(b) A duplicate copy of each notice, certificate or
other communication given hereunder by or to Issuer or Trustee
shall also be given to Borrower.
(c) Issuer, Borrower and Trustee, may, by notice given
hereunder, designate any further or different addresses to which
subsequent notices , certificates or other communications shall be
sent .
Section 11 .09. Payments Due on Holidays . If the date
for making any payment or the last day for performance of any act
or the exercising of any right , as provided in this Indenture
shall be a legal holiday or a day on which banking institutions
in Greeley, Colorado are authorized by law to remain closed, such
payment may be made or act performed or right exercised on the
next succeeding day which is not a legal holiday or a day on
which such banking institutions are authorized by law to remain
closed with the same force and effect as if done on the nominal
date provided in this Indenture.
(Balance of this page intentionally left blank.)
11-3
from the general credit , general funds or taxing powers of the .
Issuer. Nothing herein shall preclude a proper party in interest
from seeking and obtaining specific performance against the
Issuer for any failure to comply with any term, condition,
covenant or agreement herein; provided, that no costs , expenses
or other monetary relief shall be recoverable from the Issuer
except as may be payable from the Project or its revenues .
Section 11 .03. Parties Interested Herein. With the
exception of rights herein expressly conferred on Borrower,
nothing in this Indenture expressed or implied is intended or
shall be construed to confer upon, or to give to, any person
other than Issuer, Trustee, and the Registered Owners of the
Bonds , any right , remedy or claim under or by reason of this
Indenture or any covenant , condition or stipulation thereof; and
all the covenants , stipulations, promises and agreements in this
Indenture contained by and on behalf of Issuer shall be for the
sole and exclusive benefit of Issuer, the Trustee , and the
Registered Owners of the Bonds.
Section 11 .04. Titles , Headings, Etc. The titles and
headings of the articles , sections and subdivisions of this
Indenture have been inserted for convenience of reference only
and shall in no way modify or restrict any of the terms or
provisions hereof.
Section 11 .05. Severability. In the event any
provision of this Indenture shall be held invalid or
unenforceable by any court of competent jurisdiction, such
holding shall not invalidate or render unenforceable any other
provision hereof and such remaining provisions shall remain in
full force and effect .
Section 11 .06. Governing Law. This Indenture shall be
governed and construed in accordance with the laws of the State
of Colorado.
Section 11 .07. Execution in Counterparts. This
Indenture may be; executed in several counterparts , each of which
shall be an original and all of which shall constitute but one
and the same instrument.
Section 11 .08. Notices .
(a) All notices , certificates or other communications
required to be given to any party pursuant to any provision of
this Indenture shall be in writing, shall be given by certified
or registered mail and shall be deemed received three (3) days
after having been deposited in a receptacle for United States
mail , postage prepaid, addressed as follows :
11-2
IN WITNESS WHEREOF, the County of Weld, in the State of
Colorado, has caused this Indenture to be executed on its behalf
by the Chairman of the Board of County Commissioners of the
County, to be attested and countersigned by its County Clerk and
Recorder, to be approved by its Assistant County Attorney and its
corporate seal to be hereunto affixed, and to evidence its
acceptance of the trusts hereby created and United Bank of
Greeley, has caused this Indenture to be executed on its behalf
by one of its Vice Presidents andn its co rate seal to
behereunto affixed and attested by U,:„ 1o„o,,Q fpoOfr , all
as of the date first above written.
( S E A L )
ATTESTED AND COUNTERSIGNED: WELD COUNTY, COLORADO
ea-fa
/7 o--
o nt er and Recorderte— Chairman, Board of County
Commissioners
APPROVED:
CP"vG
s st t ount Attorney
UNITED BANK OF GREELEY
Greeley, Colorado
as Trustee
( S E A L )
, t .
Title: C �/ , ✓ /7O e
ATTESTED:
B ' #/ffe //1.6a7
Title : /(e oA_Iid Z/L/C,
- 4 -
STATE OF COLORADO )
) ss .
COUNTY OF WELD )
The foregoing instrument was acknowledged before me
this 31 day of July, 1984, by Norman Carlson as Chairman of
the Board of County Commissioners of Weld County, Colorado, by
Lee Morrison as Assistant County Attorney of said County and by
Mary Ann Feuerstein as County Clerk and Recorder.
Notary Public
( S E A L )
r
My commission expires: / `
STATE OF COLORADO )
) ss .
COUNTY OF WELD )
The foregoing instrument was acknowledged before me
this 31 day of c!'. July, 1984, by /'u /z_
asi Vice President of United tank of
Greeley, and by c -/ ',.', roc , as ;, e--
of said Bank.
Notary Public
( S E A L )
My commission expires : `- ��
`
/,
- 5 -
EXHIBIT A
(Legal Description of Project Sites and Description of Buildings)
-6-
PROJECT DESCRIPTION
(Commonly known as 1306 11th Avenue and 1025 14th Street, Greeley Colorado)
The North 130 feet of the W 1/2 of Lot 2, in Block 106 in the city of
Greeley, County of Weld, State of Colorado, and improvements thereon, and,
the E 1/2 of the W 1/2 of Lot 3 in Block 106, in the City of Greeley,
County of Weld, State of Colorado, and improvements thereon excepting the
South One-half (1/2) thereof.
The South 90 feet of Lots Two(2) , Three (3), and Four(4) , Block Twenty-
eight (28 ) , City of Greeley, County of Weld, Colorado, known as 510 13th
Avenue . , Greeley, Colorado, and improvements thereon.
EXHIBIT B
(Schedule of Trustee Fees)
-7-
EXHIBIT "B"
SCHEDULE OF TRUSTEE FEES
MENTAL HEALTH FACILITIES REVENUE BOND
(1). Set Up Fee (Includes Issuance of Bonds) $800.00
(2). Construction Fund
Base Annual Fee $200.00
Each Construction Check Issued $ 25.00
(3). Bond Fund
Base Annual Fee $100.00
Each Registered Bond .50
Each Interest Check 1.00
Minimum Each Interest Payment Date 100.00
If Wire Transfer Used in Lieu of Check-
Per Transfer 8.00
Each Bond Transferred 5.00
Each Interest Adjustment 75.00
Each Bond Paid 3.00
Minimum Each Principal Payment Date 50.00
(4) . Reserve Fund
Base Annual Fee $300.00
Each Investment in Excess of 6/year 15.00
Each Other Transaction in Excess of 50/year 2.00
$650,000
WELD COUNTY, COLORADO
MENTAL HEALTH FACILITIES REVENUE BONDS
(Weld Mental Health Center Project)
Series 1984
FINANCIAL ADVISORS AGREEMENT
Dated as of July 1 , 1984 , and actually executed on
July , 1984
$650,000
Weld County, Colorado
Mental Health Facilities Revenue Bonds
(Weld Mental Health Center Project)
Series 1984
FINANCIAL ADVISORS AGREEMENT
Weld County
P. 0. Box C
Greeley, Colorado 80632
Prudential-Bache Securities , Inc.
Anderson DeMonbrun Division
5675 South DTC Boulevard
Englewood, Colorado 80111
United Bank of Denver, N.A.
United Bank Center
1740 Broadway
Denver, Colorado 80202
Gentlemen:
Prudential-Bache Securities , Inc. , Anderson DeMonbrun
Division and United Bank of Denver, N.A. (the "Financial
Advisors") hereby offer to place , upon the terms and conditions
hereinafter specified , $650,000 Mental Health Facilities Revenue
Bonds (Weld Mental Health Center Facility Project) Series 1984,
dated July 1 , 1984 (the "Bonds") , to be issued by Weld County,
Colorado (the "Issuer") . The Bonds are described in the Bond
Ordinance finally passed and adopted by the Issuer on or about
June 27 , 1984. Terms not specifically defined herein shall have
the respective meanings used in the Bond Ordinance, the
Indenture , Loan Agreement or Mortgage relating to this financing.
1 . General . The Bonds are to be issued by the Issuer
pursuant to an Indenture of Trust (the "Indenture") dated as of
July 1 , 1984 , and actually to be executed on the date of delivery
of the Bonds , between the Issuer and United Bank of Greeley, in
Greeley, Colorado (the "Trustee") . The proceeds of the sale of
the Bonds will be loaned by the Issuer to Weld Mental Health
Center, Inc . , a Colorado nonprofit corporation (the "Borrower")
pursuant to a Loan Agreement dated as of July 1 , 1984 and
actually executed on the date of delivery of the Bonds . The net
proceeds from the sale of the Bonds are to be used to provide
financing for the acquisition , remodeling and equipping of
facilities the Borrower currently occupies and the acquisition,
remodeling and equipping of certain additional existing
facilities (the "Project") all for the provision of mental health
services . The Bonds are to be secured by a Combination Mortgage
and Security Agreement (the "Mortgage") dated as of July 1 , 1984,
and actually executed on the date of delivery of the Bonds ,
between the Borrower, as debtor or mortgagor, and the Trustee, as •
secured party or mortgagee. Pursuant to the Loan Agreement , the
Issuer will assign all of its right , title and interest in and to
the Loan Agreement to the Trustee .
2 . Borrower' s Representations . The Borrower makes the
following representations :
(a) The Borrower is a nonprofit corporation duly
formed and existing under the laws of the State of Colorado and
described in Section 501 (c) (3) of the Internal Revenue Code of
1954, as amended. The Borrower, has full power and authority to
own properties and conduct business in the State of Colorado.
The Borrower is conducting its business in substantial compliance
with all applicable and valid laws , rules and regulations of each
jurisdiction where it owns or leases substantial property or
where it transacts material intrastate business .
(b) The Borrower has full power and authority to
execute and deliver the Loan Agreement , the Note, the Mortgage
and this Agreement and to carry out the terms thereof and hereof.
The Issuer has full power and authority to execute and deliver
the Loan Agreement, Indenture and this Agreement and to carry out
the terms thereof and to execute and deliver the Bonds . This
Agreement , the Mortgage, the Indenture, and the Loan Agreement ,
when executed and delivered , will have been duly and validly
authorized , executed and delivered, will be in full force and
effect and will be valid and binding instruments of the Issuer or
Borrower enforceable in accordance with their terms except to the
extent that their enforceability may be limited by bankruptcy,
reorganization or other laws of general application relating to
or affecting enforcement of creditors ' rights .
(c) The consummation of the transaction herein
contemplated and carrying out of the terms hereof will not result
in violation of any provision of, or in default under, the
Articles of Incorporation or Bylaws of the Borrower or any
indenture, mortgage, deed of trust , indebtedness , agreement,
judgment , decree , order, statute, rule or regulation to which the
Borrower is a party or by which it or its property is bound.
(d) The Borrower is not in violation of any provision
of its Articles of Incorporation or Bylaws and the Borrower is
not in violation of any provision of, or in default under, any
indenture, mortgage, deed of trust, indebtedness , agreement,
instrument , judgment , decree or order , statute, rule or
regulation to which it is a party or by which it or its property
is bound, other than violations and defaults , the effect of which
would not have a material effect on the financial position or
results of operations of the Borrower or on the transactions
contemplated hereby. There is no provision of its Articles of
Incorporation or Bylaws or any indenture, mortgage, deed of
trust, indebtedness, agreement , instrument, judgment, decree,
order, statute, rule or regulation that materially adversely
affects the business , properties , assets , liabilities or
condition (financial or other) of the Borrower.
(e) There are no legal or governmental proceedings
pending or, to the best of the Borrower s knowledge, threatened
or contemplated by governmental authorities or threatened by
others or to which the Borrower is or may become a party or of
which any property of the Borrower is or may become subject,
other than ordinary litigation arising in the ordinary course of
the business conducted by the Borrower which, if determined
adversely to the Borrower would individually or in the aggregate
have a material adverse effect on the financial position or
results of operations of the Borrower.
(f) (i) It is expressly agreed and understood that
the Private Offering Memorandum to be prepared prior to the
placement of the Bonds shall be used only in conjunction with the
placement by the Financial Advisors of those Bonds specifically
covered by said Private Offering Memorandum, the description of
which will be set forth therein, and shall not be used in
connection with any purchase or sale of any other securities of
Weld County, Colorado, whether issued prior to or subsequent to
the issuance of the Bonds specifically referred to above .
(ii) It is further agreed and understood that the
Private Placement Memorandum to he prepared prior to the sale of
the Bonds and distribution to any purchasers shall be the only
official sales documents with respect to the above cited issue.
A copy of the Private Placement Memorandum shall be provided by
the Financial Advisors to each and every purchaser of Bonds and
shall accompany or precede the delivery of the Bonds .
(iii) The Borrower will sign a certificate stating
that the information contained in the Private Placement
Memorandum is complete and accurate and the Private Placement
Memorandum does not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which
they are made , not misleading; provided , however, that the
Borrower will make no representations , warranties or agreements
as to the information contained in the Private Placement
Memorandum in reliance upon and in conformity with written
information furnished by the Financial Advisors or by the Issuer
specifically for use in the preparation thereof.
(g) As of the date of this Financial Advisors
Agreement , (1) the Borrower has not incurred or shall not have
incurred any material liabilities or obligations , direct or
contingent , except in the ordinary course of business or have
entered or shall have entered into any material transaction not
in the ordinary course of business , (2) there has not been and
will not be any sale or transference of the property (exept as
permitted by the Loan Agreement) or an interest therein of the
Borrower, the Borrower shall not have dissolved or otherwise
disposed of all or substantially all of its assets , and shall not
have declared bankruptcy, (3) there has not been and will not
have been any material adverse change in the business or the
financial position or results of operations of the Borrower, (4)
no loss or damage (whether or not insured) to the property of the
Borrower has been or will have been sustained which materially
and adversely affects the operations of the Borrower and, (5) no
legal or governmental proceedings affecting the Borrower or the
transactions contemplated by this Financial Advisors Agreement
has been or will have been instituted or threatened which is
material .
(h) On the Closing Date, the Borrower is or shall be
the sole owner of the Project, with good right and lawful
authority to assign and grant a security interest in and pledge
the Project as provided in the Mortgage and the Project shall be
free of any prior or superior security interest , except those
excepted by the Trustee under the Indenture.
(i) The information furnished by the Borrower in the
form of its written certifications that has been relied upon by
Bond Counsel with respect to the tax-free status of the interest
on the Bonds is correct and complete.
3. Purchase, Sale and Delivery of the Bonds. On the basis
of the representations and warranties and subject to the terms
and conditions set forth herein, the Financial Advisors agree to
place and the Issuer agrees to sell to the purchasers , the total
principal amount of the Bonds at a purchase price of 100% of the
principal amount thereof.
Payment for the Bonds shall be made to the Issuer or
its order by certified or official bank check or checks payable
in immediately available funds (or in another form available for
immediate credit to the account of the Issuer at the office of
the Trustee) at the office of the Issuer or of the Trustee at 10
a.m. prevailing time on or before July 31 , 1984, or at such later
date as may be agreed upon by an appropriate officer of the
Issuer, the Borrower and the Financial Advisors , against delivery
of the Bonds to the Financial Advisors on behalf of and acting as
agents for the Purchasers. The date and time of such payment and
delivery are herein called the "Closing Date." The Bonds will be
delivered in registered form and will be made available to the
Financial Advisors for delivery to the purchasers , for inspection
at a reasonable time at least two (2) business days prior to the
Closing Date .
4. Covenants of the Borrower.
(a) If at any time prior to the delivery of the Bonds
by the Financial Advisors to the purchasers an event shall have
occurred as a result of which it is necessary to amend or
supplement the Private Placement Memorandum in order to make the
statements therein not untrue or misleading, or to make the .
Private Placement Memorandum comply with any state Blue Sky act,
the Borrower will notify the Financial Advisors promptly thereof
and furnish to the Financial Advisors an appropriate amendment or
a supplement that will correct the statements in the Private
Placement Memorandum in order to make the statements therein not
untrue or misleading.
(b) The Borrower will refrain from taking any action
or permitting any action to be taken with regard to which the
Borrower may exercise control that results in the loss of the
tax-free status of the interest on the Bonds.
(c) The Borrower will furnish to the Financial
Advisors so long as any Bonds remain outstanding copies of the
annual audited financial statements of the Borrower (which may be
consolidated) .
5. Conditions of Financial Advisors ' Obligations . The
obligation of the Financial Advisors to place the Bonds is
subject to the following conditions :
(a) Each of the representations and warranties of the
Borrower shall be true and correct as of the date hereof and the
Closing Date .
(b) At the Closing Date the Borrower shall have
performed all of its obligations hereunder theretofore to be
performed .
(c) At the Closing Date , there shall be delivered to
the Financial Advisors and dated as of the Closing Date:
(i) an opinion of Bond Counsel in substantially
the form attached hereto as Exhibit A.
(ii) an opinion of the Issuer' s counsel in
substantially the form attached hereto as Exhibit B.
(iii) an opinion of Borrower' s counsel in
substantially the form attached hereto as Exhibit C.
In rendering the above opinions , counsel may rely upon customary
certificates .
(d) The Indenture, Loan Agreement, and the Mortgage,
in substantially the forms existing on the date hereof, with such
changes therein as may be mutually agreed upon by the parties
thereto and the Finanical Advisors shall have been duly
authorized , executed and delivered by the respective parties
thereto and shall be in full force and effect on the Closing
Date.
(e) All proceedings and related matters in connection .
with the authorization, issue, sale and delivery of the Bonds
shall have been satisfactory to Bond Counsel and such counsel
shall have been furnished with such papers and information as
they may have reasonably requested to enable them to pass upon
the matters referred to in this paragraph.
(f) The Borrower shall have furnished or caused to be
furnished to us on the Closing Date certificates satisfactory to
us as to the accuracy of all representations and warranties
contained herein as of the date hereof and as of the Closing Date
and as to the performance by the Borrower of all of its
obligations hereunder to be performed at or prior to the Closing
Date.
(g) The offer and sale of the Bonds and underlying
securities shall be exempt from registration under the Securities
Act of 1933 , as amended , the Bonds and underlying securities
shall constitute "municipal securities" within the meaning of the
Securities Exchange Act of 1934, as amended, and the Indenture,
Loan Agreement and related security instruments shall be exempt
from qualification under the Trust Indenture Act of 1939 , as
amended.
(h) The Bonds shall be registered or exempt from
registration for sale in such states as the Financial Advisors
may designate.
All such opinions , certificates , letters and documents
will be in compliance with the provisions hereof only if they are
in all material respects satisfactory to the Financial Advisors
and to counsel to the Financial Advisors as to which we and such
counsel shall act reasonably.
If any condition of our obligations hereunder to be
satisfied prior to the Closing Date is not so satisfied, this
Financial Advisors Agreement may be terminated by the Financial
Advisors by notice in writing or by telegram to the Borrower and
the Issuer.
The Financial Advisors may waive in writing compliance
by the Borrower or the Issuer of any one or more of the foregoing
conditions or extend the time for their performance.
6 . Indemnification.
(a) The Borrower will indemnify and . hold harmless the
Financial Advisors and the Issuer and each person, if any, who
controls the Financial Advisors and the Issuer (in this paragraph
separately and collectively referred to as the "defendants")
within the meaning of the Securities Act of 1933 , as amended, and
the Securities Exchange of 1934, as amended, from and against any
and all losses , claims , damages , expenses or liabilities , joint
or several , to which they or any of them may become subject under
the Securities Act of 1933 , as amended, and the Securities •
Exchange Act of 1934, as amended, or under any other statute,
including any Blue Sky law of any jurisdiction, or at common law
or otherwise, and , except as hereinafter provided, will reimburse
the Financial Advisors , the Issuer and each such controlling
person, if any, for any legal or other expenses reasonably
incurred by them or any of them in connection with investigating
or defending any actions whether or not resulting in any
liability, insofar as such losses , claims , damages , expenses ,
liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact
contained in this Financial Advisors Agreement or any amendment
or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact
necessary in order to make the statements therein not misleading,
unless such untrue statement or omission was made in this
Financial Advisors Agreement in reliance upon and in conformity
with written information furnished by us or by the Issuer
specifically for use in the preparation thereof. Promptly after
receipt by the Financial Advisors , the Issuer or any such
controlling person of which indemnity may be sought against the
Borrower under this Section, such person will notify the Borrower
in writing in the commencement thereof, and, subject to the
provisions hereinafter stated, the Borrower shall assume the
defense of such action (including the employment of counsel , who
shall be counsel satisfactory to the Financial Advisors , the
Issuer or such controlling person, as the case may be, and the
payment of expenses) insofar as such action shall relate to any
alleged liability in respect of which indemnity may be sought
against the Borrower. The Financial Advisors , the Issuer or any
such controlling person shall have the right to. employ separate
counsel in any such action and to participate in the defense
thereof, but the fees and expenses of such separate counsel shall
not be at the expense of the Borrower unless the employment of
such separate counsel has been specifically authorized by the
Borrower. The Borrower shall not be liable to indemnify any
person for any settlement of any such action effected without the
Borrower' s consent.
(b) To the same extent as the foregoing indemnity
contained in this Section, paragraph (a) , from the Borrower to
the Financial Advisors , the Issuer and each person, if any, who
controls the Financial Advisors and the Issuer, the Financial
Advisors agree to indemnify and hold harmless the Borrower and
the Issuer and each person, if any, who controls the Borrower and
the Issuer within the meaning of the Securities Act of 1933 , as
amended , and the Securities Exchange Act of 1934, as amended
(hereinafter in this paragraph separately and collectively
referred to as the "defendants") but only with reference to
written information furnished by the Financial Advisors
specifically for use in the preparation of this Financial
Advisors Agreement. In case any such claim shall be presented in
writing or any action shall be brought against any of the
defendants based on this Financial Advisors Agreement , in respect
of which indemnity may be sought from the Financial Advisors on •
account of their agreement contained in this Section, the
Financial Advisors shall have the rights and duties given to the
Borrower in paragraph (a) above and the defendants shall have the
rights and duties given by the above paragraph to the persons
therein referred to as "defendants . "
7. Representations , Warranties and Agreements to Survive
Delivery. The representations , warranties , indemnities ,
agreements and other statements of the Borrower, the Issuer and
the Financial Advisors or their officers set forth in or made
pursuant to this Financial Advisors Agreement shall survive the
Closing Date and shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of
the Borrower, the Issuer or the Financial Advisors or controlling
person.
8. Payment of Costs and Expenses. All costs and expenses
incident to the execution and performance of this Financial
Advisors Agreement and to the sale and delivery of the Bonds to
the purchasers thereof, including, the fees and expenses of Bond
Counsel , Issuer' s Counsel, Counsel to the Financial Advisors and
Counsel to the Borrower, the costs and expenses of preparing and
distributing the Official Statement, this Financial Advisors
Agreement, the Loan Agreement , the Indenture, the Mortgage, the
Bonds , and related documents , the expenses of the Financial
Advisors (including fees and disbursements of Counsel) incurred
by them in connection with qualification of the Bonds for sale
under the laws of such jurisdictions as we may designate ,
preparation of Blue Sky Memoranda (if necessary in the judgment
of the Financial Advisors) , and for any fees charged by
investment rating agencies for the rating of the Bonds , shall be
payable by the Borrower or, if available , from Bond proceeds .
The Borrower shall pay the fees and expenses of Borrower' s
Counsel .
9. Termination of Agreement. This Agreement may be
terminated on the Closing Date by the Borrower if the conditions
set forth in Section 5 , paragraphs (c) (i) , (c) (ii) and (g) hereof
are not fulfulled as of the Closing Date and if the Borrower
cannot make, as of the Closing Date, the representation set forth
in Section 2 , paragraph (g) hereof.
If this Agreement shall be terminated pursuant to
Section 5 or this Section 9, or if the purchase provided for
herein is not consummated because any condition to the Financial
Advisors ' obligations hereunder is not satisfied or because of
any refusal , inability or failure on the part of the Borrower or
the Issuer to comply with any of the terms or to fulfill any of
the conditions of this Agreement, or if for any reason the
Borrower, or the Issuer shall be unable to perform all of their
respective obligations under this Financial Advisors Agreement ,
neither the Borrower nor the Issuer shall be liable to the
Financial Advisors for damages on account of loss of anticipated
profits arising out of the transactions covered by this Financial
Advisors Agreement , but the Borrower shall remain liable to the
extent provided in Section 8 hereof and the Borrower shall pay
all out-of-pocket expenses incurred by the Financial Advisors in
contemplation of the purchase of the Bonds .
10. Notices and Governing Law. All communications
hereunder shall be in writing and, except as otherwise provided,
shall be delivered at , or mailed or telegraphed to, the following
addresses : if to the Financial Advisors , Prudential-Bache
Securities, Inc . , Anderson DeMonhrun Division, 5675 South DTC
Boulevard, Suite 280, Englewood, Colorado 80111 and United Bank
of Denver, N.A. , United Bank Center, 1740 Broadway, Denver,
Colorado 80202 ; if to the Borrower, Weld Mental Health Center,
Inc. , 1306 11th Avenue, Greeley, Colorado 80631 ; if to the
Issuer, Weld County, P.O. Box C, Greeley, Colorado 80632 ,
Attention County Clerk and Recorder. This Financial Advisors
Agreement shall be governed by and construed in accordance with
the laws of the State of Colorado.
11 . Parties in Interest . This Financial Advisors Agreement
shall be binding upon and shall inure to the benefit of the
Financial Advisors , the Issuer and the Borrower and, to the
extent expressed, any person controlling the Issuer or the
Financial Advisors and their respective executors ,
administrators , successors and assigns , and no other person shall
acquire or have any right under or by virtue of this Financial
Advisors Agreement. The term "successors and assigns" shall not
include any purchaser of the Bonds through the Financial
Advisors.
12 . Time. Time shall be of the essence of this Financial
Advisors Agreement.
(Balance of this page intentionally left blank. )
13 . Counterparts . This Financial Advisors Agreement may be .
executed in any number of counterparts.
If the foregoing is in accordance with your
understanding, kindly sign and return to the Financial Advisors
the enclosed duplicate copies hereof, whereupon it will become a
binding agreement among the Issuer the Borrower and the
it
s Advisors in accordance with terms .
Very truly yours ,
ATTESTED: PRUDENTIAL-BACHE SECURITIES, INC.
Anderson DeMonbrun Division
(S E A L)
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I t s I d/ge. _-'
ATTESTED: UNITED BANK OF DENVER, N.A.
(S E A L)
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By � _� By
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The foregoing Financial Advisors Agreement is confirmed and
accepted as of the date first above written.
WELD COUNTY, COLORADO
BY Cd /40`-o'-nn.v.
Ctairman
Board of County Commissioners
ATTESTED:
(S E A L)
aa
unty C er
WELD MENTAL HEALTH CENTER, INC.
BY(4 i
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This Mortgage and Security Agreement contains After-Acquired
Property Provisions
WELD COUNTY, STATE OF COLORADO
MENTAL HEALTH FACILITIES REVENUE BONDS
(WELD MENTAL HEALTH CENTER PROJECT)
SERIES 1984
COMBINATION MORTGAGE AND
SECURITY AGREEMENT
Dated as of July 1 , 1984
WELD MENTAL HEALTH CENTER, INC.
TO
UNITED BANK OF GREELEY
GREELEY, COLORADO
$650,000 County of Weld, State of Colorado
Mental Health Facilities Revenue Bonds
(Weld Mental Health Center Project) Series 1984
TABLE OF CONTENTS
COMBINATION MORTGAGE AND
SECURITY AGREEMENT
PAGE
PARTIES , RECITALS AND GRANTING CLAUSES
Parties 1
Recitals 1
Granting Clauses 1
SECTION 1 Definitions 3
SECTION 2 Rules of Interpretation 7
SECTION 3 Amount , Maturity, Interest Rate and
Redemption of Series 1984 Bonds ; Loan
Repayment 7
SECTION 4 Additional Payments 9
SECTION 5 After-Acquired Property 9
SECTION 6 Release of Property 9
SECTION 7 Warranty of Title; Permitted
Encumbrances 9
SECTION 8 Events of Default 9
SECTION 9 Remedies 11
SECTION 10 Possession of Mortgagor 15
SECTION 11 Further Assurances 15
SECTION 12 Amendments 15
SECTION 13 Financing Statement 15
COMBINATION MORTGAGE AND SECURITY AGREEMENT
This Combination Mortgage and Security Agreement dated
71 . :2 ( , 1984 (the Mortgage) by and between Weld Mental
Health Center, Inc. , a Colorado nonprofit corporation, of
Greeley, Colorado, as mortgagor (the Mortgagor) , and United Bank
of Greeley, a state banking association having its main office in
Greeley, Colorado, as Mortgagee (the Mortgagee) .
WHEREAS, the Mortgagor, the Mortgagee and Weld County,
State of Colorado, a body corporate and politic duly formed and
existing under the laws of the State of Colorado (the "County") ,
have entered into a Loan Agreement (the "Loan Agreement") dated
as of July 1 , 1984, pursuant to which the County will lend to the
Mortgagor the net proceeds of Weld County, State of Colorado,
Mental Health Facilities Revenue Bonds (Weld Mental Health Center
Project) Series 1984, in the principal amount of $650,000 (the
"Series 1984 Bonds") , dated as of July 1 , 1984, to be issued
pursuant to the County and Municipality Development Revenue Bond
Act , Title 29 , Article 3 , Part 1 , Colorado Revised Statutes (the
"Act") ; and
WHEREAS, pursuant to the Loan Agreement the County has
endorsed and assigned to the Mortgagee , as security for the
repayment of the Series 1984 Bonds , moneys receivable by or
interests of the County in the Loan Agreement, in the principal
amount of $650,000, with interest thereon, dated as of July 1 ,
1984; and
NOW THEREFORE, in consideration of one dollar and other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged ; and to secure the due and punctual
payment of any and all liabilities of the Mortgagor under the
Loan Agreement , including (without limitation) loan repayments in
amounts and at times sufficient to pay the principal of, premium
(if any) and interest on the Series 1984 Bonds , the Mortgagor
does hereby grant , bargain, sell , convey, and warrant and assign
to the Mortgagee, its permitted successors and assigns a lien on
and security interest in, and does hereby mortgage and pledge
unto the Mortgagee, its successors and assigns , forever, with
power of sale, the following:
FIRST
The Mortgagor' s right , title and interest in and to the
Project Sites described in Exhibit A attached hereto and made a
part hereof, situated in the City of Greeley, County of Weld and
State of Colorado;
- 1 -
SECOND
The Mortgagor' s right, title and interest in and to the
Buildings and all other buildings , structures , additions and
improvements now or hereafter located on the Project Sites
described in Exhibit A, and all hereditaments, easements,
appurtenances , estates and other rights , privileges and
immunities thereunto belonging or appertaining;
THIRD
The Mortgagor' s right, title and interest in and to any
Fixtures , machinery and other personal property owned by the
Mortgagor now or hereafter attached to or installed within or
used or usable in connection with the operations of the Project.
"Fixtures" shall mean any and all items of fixtures
owned by the Mortgagor now or hereafter attached to or installed
within or used in connection with the Project , including, but not
limited to, any and all partitions , screens , awnings , motors ,
engines , boilers , furnaces , pipes , plumbing, elevators , cleaning,
call and sprinkler systems , fire extinguishing apparatus and
equipment, water tanks , heating, ventilating, air conditioning
and air cooling equipment , refrigeration equipment , and gas and
electric machinery, appurtenances and equipmen, permanently
affixed to the Project Sites;
FOURTH
All profits , rents , condemnation awards and insurance
proceeds arising from the ownership or operation of the Project
Sites and Buildings and all proceeds and products thereof
including Mortgagor' s inventory of goods held for retail sale
(herein collectively called "Profits and Income") .
To Have and To Hold the Project Sites and Buildings
(the "Mortgaged Property") , and the Profits and Income thereof,
together with all privileges , hereditaments and appurtenances
thereunto now or hereafter belonging, or in anywise appertaining,
and the proceeds thereof, unto the Mortgagee , its successors and
assigns forever.
Provided , nevertheless , that these presents are upon
the express condition that if the Mortgagor shall pay all Loan
Repayments under the Loan Agreement and thereby cause to be paid
the principal of, premium (if any) and interest on the Series
1984 Bonds , and if the Mortgagor shall strictly observe and
perform all of the terms , covenants and conditions contained in
the Loan Agreement and this Mortgage , then this Mortgage and the
estate , right and interest of the Mortgagee in and to the
Mortgaged Property, and the Profits and Income thereof, shall
cease and he and become void and of no force and effect , and
shall be satisfied at the Mortgagor' s expense, otherwise to
remain in full force and effect .
- 2 -
The Mortgagor and the Mortgagee further agree as
follows :
1 . Definitions . The following terms shall have the
respective meanings set forth below:
Act : County and Municipality Development Revenue Bond
Act , Title 3, Article 3 , Part 1 , Colorado Revised Statutes .
Additional Bonds : any bonds issued pursuant to and in
accordance with Section 2 .11 of the Indenture.
Administration Expenses : the reasonable and necessary
expenses incurred by the parties hereto pursuant to the Loan
Agreement , the Indenture or this Mortgage.
Bank: ("Mortgagee" under this Mortgage) United Bank of
Greeley, in Greeley, Colorado.
Bonds or Series 1984 Bonds : the Mental Health
Facilities Revenue Bonds (Weld Mental Health Center Project)
Series 1984, issued by Weld County, State of Colorado.
Bond Ordinance : the Ordinance of the Board of County
Commissioners of the County finally passed and adopted on June
27 , 1984, pursuant to which the Bonds are issued , including any
amendment thereto or supplement thereof.
Financial Advisors Agreement : the agreement of
Prudential-Bache Securities , Inc . , Anderson DeMonbrun Division,
and United Bank of Denver, N.A. , dated as of July 1 , 1984,
whereby Prudential-Bache Securities , Inc . , Anderson DeMonbrun
Division, and United Bank of Denver, N.A. has committed to act as
Financial Advisors to the County and place the Bonds .
Buildings : those buildings located on the Project
Sites as the same now or hereafter may exist and described in
Exhibit A attached hereto.
Code: the United States Internal Revenue Code of 1954,
as amended.
Combination Mortgage and Security Agreement (here-
inafter referred to as Mortgage) : the real estate mortgage and
security agreement granting the Bank a first lien on the Project
in
terest a security in the personal property described
therein as security for payment of the Bonds, as amended or
supplemented in accordance with the provisions hereof.
Completion Date: the date of issuance of the
certificate or certificates of completion of construction for the
Project issued by the Mortgagor.
- 3 -
Construction Fund : that fund created by Section 3.09
of the Indenture, and funded pursuant to Section 3 .02 thereof.
Construction Period: the period between either the
beginning of construction of the Project or the date on which the
Bonds are delivered to Prudential-Bache Securities , Inc. ,
Anderson DeMonbrun Division, and United Bank of Denver, N.A. , as
agents for the purchasers thereof, whichever is earlier, and the
Completion Date.
Costs or Costs of the Project: include the following
costs :
(a) The fees and expenses for recording or filing any
Security Documents , and any other documents or instruments,
including the Mortgage , that Mortgagor, the County or Bank may
consider desirable to file or record in order to perfect or
protect the rights of the County and Bank to receive revenues
pursuant to this Mortgage;
(b) Costs incurred in connection with the preparation
of the Plans and Specifications (including any preliminary study
or planning of the Project or any aspect thereof) ;
(c) Expenses incurred by the County and Mortgagor in
connection with the issuance of the Bonds , including , without
limitation, financial consultant , legal and accounting fees and
expenses , and printing, photocopying and engraving costs ;
(d) Costs incurred in connection with rights-of-way,
easements and other interests in the Project Sites or other real
property in connection with the Project;
(e) Expenses incurred for labor, services , materials
and supplies used or furnished in the acquisition, construction,
installation of the Buildings or other improvements , all as
provided in the Plans and Specifications;
(f) Fees incurred for architectural , engineering and
supervisory services with respect to the Project;
(g) To the extent not paid by a contractor for
construction or installation with respect to any part of the
Project , the premiums of all insurance required to be taken out
and maintained during the Construction Period;
(h) Expenses incurred by Mortgagor with approval of
the County and Bank in seeking to enforce any remedy against any
contractor, subcontractor, materialman or surety, if any, in
respect of any default under a contract relating to the Project;
(i) Interest accruing on the Bonds during the
Construction Period;
- 4 -
(j) Other costs and expenses relating to the Project •
which would constitute a cost or expense for which the County may
issue bonds under the Act and which will not impair the exemption
of interest on the Bonds from federal income taxation; and
(k) Any sums required to reimburse the County or
Mortgagor for any advances made by either of them for any of the
above items.
County: Weld County, State of Colorado , a body
corporate and politic duly formed and existing under the laws of
the State of Colorado.
County' s Representative: the person (who may be an
employee of the County) at the time designated to act on behalf
of the County by written certificate furnished to Mortgagor and
Bank containing the specimen signature of such person and signed
on behalf of County by the Chairman of the Board of County
Commissioners . A certificate may designate an alternate or
alternates .
Event of Default : the events and conditions described
in Section 7 hereof.
Financing Statements : the financing statements , if
any, perfecting the rights of the County and Bank to receive
revenues pursuant to the Loan Agreement and perfecting the
security interest granted by and including, but not limited to,
this Mortgage .
Indenture: the Indenture of Trust dated as of July 1 ,
1984 and actually executed on the date of delivery of the Series
1984 Bonds , by and between the County and United Bank of Greeley
as Trustee.
Loan: the loan made to the Mortgagor pursuant to the
Loan Agreement and secured by this Mortgage.
Loan Agreement : the Loan Agreement dated as July 1 ,
1984 and actually executed on the date of delivery of the Series
1984 Bonds , by and between the County and the Mortgagor including
any amendment thereof or supplement thereto entered into in
accordance with the provisions thereof.
Mortgage: this Combination Mortgage and Security
Agreement .
Mortgagor: Weld Mental Health Center, Inc .
Mortgagor' s Representative: the person (who may be an
employee of Mortgagor) at the time designated to act on behalf of
Mortgagor by written certificate furnished to Weld County, State
- 5 -
of Colorado, and the Bank containing the specimen signature of •
such person and signed by Mortgagor. A certificate may designate
an alternate or alternates .
Net Proceeds : when used with respect to any insurance
proceeds or condemnation award, the gross amount thereof less the
expenses (including reasonable attorneys ' fees) incurred in the
collection thereof.
Obligations : all obligations of Mortgagor to the
County and Bank, whether now existing or hereafter arising,
relating to or in connection with the financing of the Project ,
including without limitation, Mortgagor's obligations , covenants
and agreements under the Loan Agreement , this Mortgage , and the
Security Documents .
Opinion of Counsel : a written opinion of counsel (who
need not be independent counsel unless so specified) appointed by
the Bank or County and acceptable to the Mortgagor or appointed
by the Mortgagor.
Permitted Encumbrances : as of any particular time , (i)
liens for ad valorem taxes and special assessments not then of
record or delinquent, (ii) utility access and other easements and
rights-of-way, mineral rights , restrictions and exceptions that
will not interfere with or impair the use of or operations being
conducted on the Project Sites , (iii) such minor defects,
irregularities , encumbrances , easements , rights-of-way and clouds
on title as normally exist with respect to properties similar in
character to the Project and as do not in the aggregate ,
materially impair the property affected thereby for the purposes
for which it was acquired or is held by the Mortgagor, (iv) this
Mortgage and (v) those additional encumbrances , if any ,
identified in Exhibit B attached hereto and made a part hereof by
this reference.
Person: natural persons , firms , associations ,
partnerships , corporations , joint ventures , joint stock
companies , trusts and public bodies .
Plans and Specifications : the plans and specifications
for the Project, as the same may be revised in accordance with
the Loan Agreement.
Project : the Project Sites together with the Buildings
and any other improvements thereon (including Fixtures owned by
Mortgagor, or any entity or Person under the control of
Mortgagor) as the same are acquired, stored upon, or constructed ,
erected or installed thereon.
- 6 -
Project Budget : the budget or itemization of the Costs •
of the Project for acquisition and construction or installation
of the Project which has been heretofore initialled for
identification by Mortgagor, Bank and County, as amended from
time to time consistent with the provisions of this Mortgage .
Project Sites : the real property described in Exhibit
A attached hereto.
Registered Owner: any Registered Owner of any Bond .
Security Documents : the Indenture, the Combination
Mortgage and Security Agreement , the Financing Statements , if
any, and any other instruments or documents securing the
Obligations .
2. Rules of Interpretation.
(a) This Mortgage shall be interpreted in accordance
with and governed by the laws of the State of Colorado;
(b) The words "herein" and "hereof" and "hereunder"
and words of similar import , without reference to any particular
section or subsection, refer to this Mortgage as a whole rather
than to any particular section or subsection hereof;
(c) References in this instrument to any particular
article , section or subsection hereof are to the designated
article , section or subsection of this instrument as originally
executed;
(d) Any terms not defined herein but defined in the
Security Documents or other related documents shall have the same
meaning herein unless the context hereof requires otherwise;
(e) The Table of Contents and titles of sections
herein are for convenience only and are not a part of this
Mortgage;
(f) Unless the context hereof clearly requires
otherwise , the singular shall include the plural and vice versa
and the masculine shall include the feminine and vice versa;
(g) All accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles , and all computations provided for
herein shall be made in accordance with generally accepted
accounting principles .
3. Amount , Maturity, Interest Rate and Redemption of
the Series 1984 Bonds; Loan Repayment . The parties represent and
agree as follows :
- 7 -
The Series 1984 Bonds secured by this Mortgage are •
dated as of July 1 , 1984 and consist of fully registered Bonds in
the aggregate principal amount of $650,000, or so much thereof as
remains unpaid from time to time. The Bonds shall bear interest
at the Initial Interest Rate (the "Initial Interest Rate") of
8 .25% per annum from their date to April 1 , 1986, payable on the
1st day of January and the 1st day of July of each year,
commencing on January 1 , 1985, except that if the Bonds are
tendered to the Trustee on April 1 , 1986 as provided hereinafter,
such interest shall be payable on that date. On March 1 , 1986 ,
on June 1 , 1988 and biennially only thereafter (the "Interest
Adjustment Dates") , the interest on the Bonds payable on the next
succeeding Interest Payment Date shall be adjusted to equal 80%
of the average of the rates for twenty-four (24) month U.S.
Treasury Notes for the month immediately preceding each Interest
Adjustment Date (the "Adjusted Interest Rate") , as determined by
the Trustee and said Trustee shall give written notice to the
Registered Owners of the Bonds on the Interest Adjustment Date of
the Adjusted Interest Rate upon which the interest payable on the
next succeeding Interest Payment Date will be based; provided,
however, the Adjusted Interest Rate shall never be in excess of
21% per annum. The Bonds mature on July 1 , 2000 ; provided,
however, the Bonds are subject to mandatory sinking fund
redemption as provided by the terms thereof. In addition, the
Bonds are subject to optional redemption prior to the maturity
date thereof on July 1 , 1989 , and on Interest Payment Dates
thereafter upon payment of the principal amount thereof plus
accrued interest thereon to the redemption date plus a premium of
one percent (1%) of the principal amount so redeemed . All Bonds
of this issue subject to optional redemption prior to their
respective maturity dates are redeemable in inverse order of
maturity and by lot within a maturity. The Bonds of this issue
are also subject to mandatory prepayment prior to maturity, at
the option of the Registered Owners to tender (present for
acceptance) the Bonds to the Trustee, at a price equal to the
principal amount thereof plus accrued interest to the date of
such mandatory prepayment , without premium, which mandatory
prepayment dates shall be April 1 , 1986 , July 1 , 1988 and
biennially only thereafter. If the Registered Owner of any of
the Bonds elects to exercise the option to tender any Bonds of
this issue , notice shall be given in writing to the County, the
Trustee and the Mortgagor not more than ninety (90) nor less than
sixty (60) days prior to the mandatory prepayment date on which
such option is to be exercised. If any Registered Owner
exercises the option to tender, and as a result thereof any Bonds
are tendered, all Bonds of this issue shall be redeemed on the
applicable mandatory prepayment date for the price stated above
and upon thirty (30) days ' written notice to the Registered
Owners of the Bonds . The Trustee shall effect the redemption in
the manner provided generally for redemption pursuant to the
operation of the mandatory sinking fund provisions set forth in
the Bonds .
- 8 -
4 . Additional Payments . In addition to Loan •
Repayments , the Mortgagor has agreed to pay the County' s
Administration Expenses .
5. After-Acquired Property. The Mortgagor, at its
own expense , during the term of this Mortgage , shall maintain,
preserve and keep the Project in good repair, working order and
condition and shall from time to time make all proper repairs ,
renewals and replacements thereof. Mortgagor may, from time to
time and at its own expense , make any additions , modifications or
improvements to the Project, if such additions , modifications or
improvements do not impair the character of the Project as a
"project" within the meaning of the Act or impair the exemption
of interest on the Bonds from federal income taxation. All such
additions , modifications and improvements shall become a part of
the Project and shall be subject to this Mortgage.
6 . Release of Property. Property included in the
Mortgaged Property may be released from the lien of this Mortgage
upon satisfaction of the Mortgagor' s Obligations .
7 . Warranty of Title; Permitted Encumbrances . The
Mortgagor hereby covenants , represents and warrants that the
Mortgagor is the lawful owner of the Project Sites and the
Mortgagor is the lawful owner of the Buildings and other
improvements on the Project Sites and the Mortgagor has good
right and lawful authority to grant, bargain, sell , convey,
warrant , mortgage , assign and pledge the Mortgaged Property and
Profits and Income thereof as provided herein; that the Mortgagor
is and will continue to be well and truly seized of good and
marketable title to the Mortgaged Property; that the Mortgaged
Property and Profits and Income thereof are free and clear of all
mortgages , liens , pledges , charges and encumbrances excepting
Permitted Encumbrances if any; and that the Mortgagor warrants
and will defend the title to the Mortgaged Property and Profits
and Income thereof against all claims and demands whatsoever not
specifically excepted herein.
8 . Events of Default . The occurrence of any one or
more of the following events , or existence of one or more of the
following conditions , with respect to Mortgagor shall constitute
an Event of Default under this Mortgage:
(a) Delay by Mortgagor in the payment when due of any
amounts required to be paid under this Mortgage or according to
the terms of the Loan Agreement;
(h) Any representation or warranty made in writing to
County or Bank herein or in connection with the making of the
Loan, or any certificate , statement or report made in compliance
with this Mortgage , by Mortgagor, or any contractor shall prove
at any time to have been incorrect or misleading in any material
respect when made, or Mortgagor shall fail to perform or observe
- 9 -
any covenant contained in this Mortgage, after notice thereof and
the same is not corrected within ten (10) days of the notice
thereof;
(c) There shall occur a default or Event of Default
under the terms of the Security Documents or any other document
executed in connection herewith (other than a default which
constitutes a separate and distinct Event of Default under the
terms of this Mortgage) which shall not be remedied within ten
(10) days after notice thereof to Mortgagor;
(d) Mortgagor shall make an assignment for the benefit
of creditors , file a petition in bankruptcy, be adjudicated
insolvent or bankrupt or admit in writing the inability to pay
its debts as they mature, petition or apply to any tribunal for
the appointment of a receiver or any trustee or similar officer
for Mortgagor or a substantial part of the assets of Mortgagor,
or shall commence any proceeding under any bankruptcy,
reorganization, arrangement , readjustment of debt , dissolution or
liquidation law or statute of any jurisdiction, whether now or
hereafter in effect or if there shall have been filed any such
petition or application, or any such proceeding shall have been
commenced against Mortgagor, which remains undismissed for a
period of thirty (30) days or more; or Mortgagor by any act or
omission shall indicate its consent to , approval of or
acquiescence in any such petition, application or proceeding, or
the appointment of a receiver of or any trustee or similar
officer for Mortgagor or any substantial part of any of the
properties of Mortgagor, or shall suffer any such receivership or
trusteeship to continue undischarged for a period of thirty (30)
days or more; or any judgment, writ , warrant or attachment or
execution or similar process shall be issued or levied against a
substantial part of the property of Mortgagor and such judgment ,
writ, or similar process shall not be released , vacated or fully
bonded within thirty (30) days after its issuance or levy;
(e) Any action shall be taken by any governmental
authority which would materially and adversely affect timely
substantial completion of remodeling or construction of the
Project or the use or occupation of the Project for its intended
purpose and such action shall not have been reversed or remedied
within a period of ten (10) days from the taking thereof,
provided, however, the Bank may extend such period if in its
reasonable discretion the Mortgagor is diligently pursuing such
reversal or remedy;
(f) Construction of the Project shall cease or be
otherwise discontinued for an aggregate period of thirty (30) or
more days or for any shorter period if, in Bank' s sole
discretion, such cessation or discontinuance may result in a
delay in completion of the Prbpject which will preclude the
completion thereof on or about ie ] 1, ;/ c/ ;
- 10 -
(g) Execution shall have been levied against the •
Project or any other property subject to any Security Document or
by lien creditor' s suit to enforce a judgment against the Project
or such other property shall have been brought and (in either
case) shall continue unstayed and in effect for a period of more
than ten (10) consecutive calendar days;
(h) A lien or other encumbrance shall be filed against
the Project or any other security for the Loan and the same shall
not have been removed or Mortgagor shall not have posted adequate
security therefor as determined by the Bank within thirty (30)
days after the filing thereof;
(i) Any contractor shall make an assignment for the
benefit of creditors , file a petition in bankruptcy or be
adjudicated insolvent or bankrupt, and Mortgagor shall fail to
procure a contract with a new contractor satisfactory to the Bank
within twenty-one (21) days thereafter;
(j) Mortgagor shall default under a contract with any
contractor;
(k) Mortgagor shall fail to pay or perform any other
of the Obligations (excluding payments of principal of, prior
redemption premiums , if any, or interest on the Bonds as payable
by the Mortgagor for the account of the County, pursuant to the
terms of the Loan Agreement) within ten (10) days after notice
the same are due;
(1) The Loan Agreement or the Security Documents shall
at any time for any reason cease to be in full force and effect
or shall be declared to be null and void , or the validity or
enforceability hereof or thereof shall be contested by Mortgagor,
or Mortgagor shall deny that it has any or further liability or
obligation hereunder or thereunder; or
(m) The Mortgagor shall fail to duly and punctually
pay and discharge all taxes , assessments and other charges
against Mortgagor or the Project .
9 . Remedies . If any Event of Default or any event
which with notice or the passage of time or both would constitute
an Event of Default shall occur and be continuing, the Bank (i)
shall have authority to suspend disbursements pursuant to Article
12.02 of the Loan Agreement , (ii) to accelerate the loan
repayments and to declare the Bonds immediately due and payable
as provided in the Loan Agreement , and (iii) to pursue one or
more of the remedies provided for in the Loan Agreement , and in
lieu thereof or addition thereto , one or more of the following
remedies and provisions for foreclosure or enforcement of this
Mortgage :
- 11 -
(a) The Bank may proceed to protect and enforce its '
rights by a suit or suits in equity or at law, either for the
specific performance of any covenant or agreement contained
herein or in aid of the execution of any power herein granted , or
for the foreclosure of this Mortgage , or for the enforcement of
any other appropriate legal or equitable remedy;
(b) The Bank shall have and may exercise with respect
to all personal property and Fixtures which are part of the
Mortgaged Property all the rights and remedies accorded upon
default to a secured party under the Uniform Commercial Code, as
in effect in the State of Colorado. If notice to the Mortgagor
of intended disposition of such property is required by law in a
particular instance, such notice shall be deemed commercially
reasonable if given (in the manner specified in the Loan
Agreement) at least 10 calendar days prior to the date of
intended disposition;
(c) The Bank shall be entitled , without notice and
without any showing of waste of the Mortgaged Property as
security, or insolvency of the Mortgagor, to the appointment of a
receiver of the rents and profits of the Project, including those
past due . The Bank or any receiver shall be entitled to receive
and dispose of the Profits and Income of the Mortgaged Property
and to sue for and recover any account or other item of Profits
and Income from the Mortgagor or any account debtor or other
third person. Subject to any order of a court appointing a
receiver or otherwise having jurisdiction, the Bank in its
discretion may apply the Profits and Income (i) to the expenses
of operating the Mortgaged Property and conducting the business
thereof, (ii) to the repairs , maintenance , renewals ,
replacements , alterations , additions , betterments and
improvements of the Mortgaged Property, (iii) to the payments or
reserves that may be made or set up in the Bank' s discretion for
taxes , assessments , insurance and other property charges upon or
in connection with the operation of the Mortgaged Property or any
part thereof, (iv) to the just and reasonable compensation of the
Bank for its own services and for the services of counsel , agents
and employees by them properly engaged and employed , (v) to the
reimbursement of advances made by the Bank pursuant to the
provisions of this Mortgage , and (vi) to the payment of the
indebtedness secured hereby in accordance with the Bonds ;
(d) The Bank may (and is hereby authorized and
empowered to) foreclose this Mortgage by action or advertisement,
pursuant to the statutes of the State of Colorado in such case
made and provided, power being expressly granted to sell the
Mortgaged Property at public auction and convey the same to the
purchaser in fee simple and to apply the proceeds arising from
such sale , first , as provided in the Indenture and Loan
Agreement , to the payment of the indebtedness secured thereby and
hereby, including all expenses , liabilities and advances of the
Bank and the Bonds and interest thereon, and all legal costs and
charges of such foreclosure and the maximum attorney' s fees
- 12 -
permitted by law, which costs, charges, and fees the Mortgagor '
agrees to pay, and , second , to the payment of any Obligations of
the Mortgagor, and , third , to return any surplus to the Mortgagor
or such other Person as may be entitled thereto. Such sale shall
be made at public auction and at such place or places and at such
time or times and upon such notice as the Bank may be advised by
counsel to be consistent with the laws applicable thereto, and
upon such terms as the Bank or the public officer conducting such
sale may fix. Any such sale made pursuant to judicial
proceedings or advertisement shall be made either as an entirety
or in such parcels as may be directed by the court or as the Bank
in its sole discretion may determine. The Mortgagor, for itself
and all Persons hereafter claiming through or under it, hereby
expressly waives and releases all right to have the properties
and rights comprising the Mortgaged Property marshaled upon any
foreclosure or other enforcement hereof. The Bank or public
officer conducting such sale from time to time may adjourn any
such sale to be made by it by announcement at the time and place
appointed for such sale or for such adjourned sale or sales , and
without further notice or publication it may make such sale at
the time to which the same shall be so adjourned , but in the
event of such adjournment or adjournments , sale shall be made
within any limitation of time or number of adjournments
prescribed by law and, in any event, within six months from the
date of sale fixed in the advertisement or court order, unless
notice of sale on some later date shall be given again in the
manner provided by law;
(e) Upon any foreclosure sale , the Bank may bid for
and purchase the Mortgaged Property or any part thereof and upon
compliance with the terms of sale may hold , retain and possess
and dispose of such property in its own absolute right without
further accountability, and any purchaser at any such sale may,
in paying the purchase money, turn in the Bonds or claims for
interest outstanding hereunder in lieu of cash to the amount
which shall, upon distribution of the net proceeds of such sale,
be payable thereon;
(f) Upon the completion of any sale or sales made
under or by virtue of this Mortgage, the Bank shall execute and
deliver, or cause to be executed and delivered , to the accepted
purchaser or purchasers the property sold with good and
sufficient transfers , assigning and transferring all their right,
title and interest in and to the properties sold. The Bank and
its successor or successors is hereby appointed the true and
lawful attorney irrevocable of the Mortgagor in its name and
stead or in the name of the Bank to make all necessary
assignments, transfers and deliveries of the property thus sold,
and for that purpose, the Bank and its successors may execute all
necessary instruments of assignment and transfer, and may
substitute one or more persons with like power, the Mortgagor
hereby ratifying and confirming all that said attorney or such
substitute or substitutes shall lawfully do by virtue hereof.
Nevertheless , the Mortgagor, if so requested in writing by the
- 13 -
Bank, shall ratify and confirm any such sale or sales by •
executing and delivering to the Bank or to such purchaser or
purchasers all such instruments as may be advisable, in the
judgment of the Bank, for the purpose and as may be designated in
such request;
(g) Upon any sale made under the power of sale hereby
granted or under judgment or decree in any judicial proceedings
for the foreclosure or otherwise for the enforcement of this
Mortgage, the receipt of the Bank or of the officer making such
sale shall be a sufficient discharge to the purchaser or
purchasers at any sale for his or their purchase money, and such
purchaser or purchasers , his or their assigns or personal
representatives shall not, after paying such purchase money and
receiving such receipt of the Bank or of such officer therefor,
be obliged to see to the application of such purchase money, or
be in anywise answerable for any loss , misapplication, or non-
application thereof;
(h) The Mortgagor hereby expressly consents to the
sale of the Mortgaged Property by advertisement pursuant to
Colorado Statutes . Except as required by the aforesaid statutory
provisions , the Mortgagors hereby expressly waive any and all
rights to notice of sale of the Mortgaged Property and any and
all rights to a hearing of any type in connection with the sale
of the Mortgaged Property;
(i) In case of any Event of Default as aforesaid, to
the extent that such rights may then lawfully be waived , neither
the Mortgagor nor anyone claiming through or under said Mortgagor
shall or will set up, claim, or seek to take advantage of any
appraisement, valuation, stay, extension or redemption laws now
or hereafter in force in any locality where any of the Mortgaged
Property may be situated , in order to prevent or hinder the
enforcement or foreclosure of this Mortgage or the absolute sale
of the Mortgaged Property, or the final and absolute putting into
possession thereof, immediately after such sale of the purchaser
or purchasers thereat , but the Mortgagor for itself and all who
may claim through or under said Mortgagor, hereby waives , to the
extent that the Mortgagor lawfully may do so , the benefit of all
such laws and all right of appraisement and redemption to which
the Mortgagor may be entitled under the laws of the State in
which it is situated;
(j) Any sale made under the power of sale granted
hereby or under judgment or decree in any judicial proceedings
for foreclosure or otherwise for the enforcement of this Mortgage
shall , if and to the extent then permitted by law, operate to
divest all right , title , interest, claims and demand whatsoever,
either at law or in equity, of the Mortgagor of, in and to the
property so sold, and be a perpetual bar both at law and in
equity against the Mortgagor and against any and all Persons
claiming or who may claim the property sold, or any part thereof,
from, through or under the Mortgagor.
- 14 -
10. Amendments. No term or provision of this Mortgage '
may be amended, modified, revoked, supplemented, waived or
otherwise changed except by a written instrument executed by the
parties hereto.
1 11 . Financing Statement . Pursuant to this Mortgage
the Mortgagor has granted to the Bank a security interest in the
Fixtures purchased in whole or in part from the proceeds of the
Mental Health Facilities Revenue Bonds (Weld Mental Health Center
Project) Series 1984 of Weld County, State of Colorado, and now
or hereafter located on the Project Sites described in Exhibit A
hereto, and all substitutions therefor and proceeds therefrom.
From the date of its recording, this Mortgage shall be effective
as a Financing Statement filed as a fixture filing with respect
to all goods constituting part of the Mortgaged Property which
are or are to become Fixtures related to the Project Sites
described herein. For this purpose, the following information is
set forth:
a. Name and Address of Mortgagor:
Weld Mental Health Center, Inc.
1306 11th Avenue
Greeley, Colorado 80631
b. Name and Address of Mortgagee:
United Bank of Greeley
1000 10th Street
Greeley, Colorado 80632
c. This document covers goods which are to
become Fixtures .
- 15 -
yam.
IN WITNESS WHEREOF, the Mortgagor and the Mortgagee
have caused this Mortgage to be duly executed as of the day and
year first above written.
ATTESTED: WELD MENTAL HEALTH CENTER, INC. ,
( S E A L ) as Mortgagor
a�/�.�) /LW,,e._ _�/If, r � �'
7retar � Pre dent
_
UNITED BANK OF GREELEY,
as Mortgage
( S E A L )
( -/ i (_ ---4://
Title: "len,ll ki c'titr✓ iiiT-' 1(7:-�
ATTESTED: //
itle:% 1 ��2
fAe��✓� zt
- 16 -
EXHIBIT A
TO
COMBINATION MORTGAGE AND
SECURITY AGREEMENT
(Description of Project Sites)
- 17 -
EXHIBIT B
TO
COMBINATION MORTGAGE AND SECURITY AGREEMENT
(Additional Permitted Encumbrances)
The following are included as Permitted Encumbrances
under this Mortgage:
- 18 -
STATE OF COLORADO )
) ss.
COUNTY OF WELD )
The foregoing instrument was acknowledged before me
this -PPP"- day of July, 1984, by ffdze / T cA, as
President of Weld M gtal Health Center, Inc. , a Colorado
corporation, and a f,.. Q C//, a„ as Secretary of the
Corporation, as Mortgagor under the foregoing instrument .
My commission expires :
( S E A L )
Notary Public
- 19 -
STATE OF COLORADO )
ss .
COUNTY OF WELD )
The foregoing instrument was acknowledged before me
this a/ sue- day of July, 1984, by 4sicze..r as
C2 ✓.e o ,%e2 and by Sre % ,-a — as
y. //,
. Y Tret.sr a ', eez of United /Bank of Greeley in Greeley,
Colorado, Mortgagee under the foregoing instrument.
My commission expires :
( S E A L )
Notary Public
- 20 -
County of Weld, State of Colorado
Mental Health Facilities Revenue Bonds
(Weld Mental Health Center)
Series 1984 - $650,000
BORROWER'S CERTIFICATE WITH RESPECT TO INSURANCE
The undersigned hereby certifies that there have been
delivered on this date, to United Bank of Greeley (the
Mortgagee) , under that certain Combination Mortgage and Security
Agreement , dated as of July 1 , 1984 between the Mortgagee and
Weld Mental Health Center, Inc . (the Borrower) , policies of
insurance (or certificates of the Borrower' s respective insurers)
required to be in full force and effect as of this date pursuant
to provisions of that certain Loan Agreement dated as of July 1 ,
1984 between the Borrower and Weld County, Colorado (the County) .
Copies of such insurance policies or certificates are attached
hereto as Exhibit A.
WITNESS the signature of the undersigned this day of
July, 1984.
i Gc�
Borrow rs Representative
PROJECT DESCRIPTION
(Commonly known as 1306 11th Avenue and 1025 14th Street, Greeley Colorado)
The North 130 feet of the tl 1/2 of Lot 2, in Block 106 in the city of
Greeley, County of Weld, State of Colorado , and improvements thereon, and,
the E 1/2 of the W 1/2 of Lot 3 . in Block 106, in the City of Greeley,
County of Weld, State of Colorado, and improvements thereon excepting the
South One-half (1/2) thereof.
The South 90 feet of Lots Two(2) , Three (3), and Four(4), Block Twenty-
eight (28), City of Greeley, County of Weld, Colorado, known as 510 13th
Avenue. , Greeley, Colorado, and improvements thereon.
STATE OF COLORADO )
) ss .
COUNTY OF WELD ) CERTIFICATE RELATING TO
THE ESTIMATE OF COSTS
I, Donald D. Warden, Director of Finance and Administration
of the County of Weld , Colorado, hereby certify that the estimate
of costs for the Weld Mental Health Center Project , in the County
of Weld, is as follows :
COST:
(a) Acquisition, Including Contingencies $ /30.
(b) Engineering $
(c) County Inspections (($..
(d) t Reserot Fund c ood,
(e) Financial Advisor' $s Fee $ /9,500,
(f) Issuing Expenses $ ? 3 �O
(g) Total $'750 600
SOURCE OF FUNDS :
(h) Bond Issue Par Amount $ 650, 000
(i) Cash Contribution by Weld Mental
Health Center, Inc. $ 100,000
(j) Total S '.SO, 000
That the total amount of bonds for the Weld Mental Health
Center Project does not exceed the estimated cost and expense of
acquiring and remodeling the buildings comprising the Project
within the County, or any other limitations imposed by law.
IN WITNESS WHEREOF, I have hereunto subscribed my name this
J day of July, 1984.
WELD NTY, 0 ORA
Di or o in an A m ni ration
STATE OF COLORADO )
) ss . GENERAL INCUMBANCY
COUNTY OF WELD ) CERTIFICATE
Each of the undersigned hereby certify as follows :
1 . That they are, respectively, the duly elected or
appointed, and qualified Chairman of the Board of County
Commissioners , and the Clerk and Recorder of Weld County,
Colorado.
2 . That Weld County, Colorado is a county duly organized
and existing under the provisions of the Constitution and Laws of
the State of Colorado and the Weld County Home Rule Charter and
that the County became a Home Rule County in the year 1975 .
3. That for the period from June 1 , 1984 , to and including
the date of this affidavit, the following have been and now are
the duly elected or appointed and qualified officers or members
of the Board of County Commissioners , Weld County, Colorado:
Chairman: Norman Carlson
Pro Tem: Jacqueline Johnson
Commissioners : Gene R. Brantner
Chuck Carlson
John T. Martin
Treasurer: F.M. Loustalet
Clerk & Recorder and
Clerk to the Board: Mary Ann Feuerstein
Director of Finance
and Administration: Donald D. Warden
County Attorney Thomas O. David
-1-
4. That a Facsimile Signature Certificate containing the
manual signature of the Chairman and a sample of the seal of the
County, was duly filed with the Secretary of State, State of
Colorado, as required by law, and a copy of each document is
attached hereto.
IN WITNESS WHEREOF, we have hereunto subscribed our names
and affixed the official seal of the County of Weld, Colorado
r
this 3/ f day of July, 1984 .
( S E A L ) WELD COUNTY, COLORADO
Co nt} C erk and Recor er ]� I //Chairman
-2-
(Attach copy of Facsimile Signature Certificate of the •
Chairman as filed with the
Secretary of State, State of Colorado)
a; col
vityr 44(5%-44,44H
N re
DEPARTMENT OF {*
STATE * /876
UNITED STATES OF AMERICA" SS. CERTIFICATE.
STATE OF COLORADO.
NATALIE pp MEYER, Jeaxe
Jute ?'ee J� k ? W044,4, 4 ("44 dal
the attached is a true and exact copy of the Certi ied Signature of
NORMAN CARLSON
AS
CHAIRMAN, BOARD OF WELD
COUNTY COMMISSIONERS
as filed in this office on November 15, 1979
IIV TESTIMONYWIIEREOF 1��G�✓%fat /
a/71/7 freilielletaled
1�1� 2,P/l1iJ/PPl!// i 1st
�
Aare/ st
May 1 84
SECRETARY OF STATE
L-1774D UTY S�ARYtTATE
State of Colorado )
)
County of Weld )
I hereby certify that the following is the manual
signature of Norman Carlson , Chairman , Board of Weld
County Commissioners.
Signed and sealed before me this /7 day of
November , 1979.
(4- 97
ll
Notary Public
My Commission expires 44,./ o2 m2.
•
STATE OF COLORADO )
) ss .
COUNTY OF WELD ) NO LITIGATION
CERTIFICATE
The undersigned officers of the Weld County Board of County
Commissioners , Weld County, Colorado, being at the date of this
Certificate about to issue that certain series of registered
Mental Health Facilities Revenue Bonds , for the County of Weld,
Colorado, dated July 1 , 1984, in the principal amount of
$650,000 , and being about to receive the consideration therefor,
hereby certify as follows :
1 . That no litigation of any nature is now pending or
threatened, so far as is known to the undersigned, seeking to
restrain or enjoin the issuance or delivery of said Bonds , or in
any manner questioning the authority or proceedings for the
issuance of said Bonds ;
2 . That neither the corporate existence of the County, the
present boundaries thereof, nor the rights of the members of the
Board of County Commissioners or the officers of Weld County to
hold their respective offices , is being contested or challenged;
3 . That no authority or proceedings for the issuance of
said Bonds has or have been repealed , revoked or rescinded;
4. That the Bonds have not been heretofore issued under or
pursuant to such proceedings ;
5. That , so far as is known to the undersigned nothing
exists to hinder or prevent the County from issuing such Bonds .
-1-
IN WITNESS WHEREOF, the Weld County Board of County .
Commissioners , Weld County, Colorado, has caused this Certificate
to be signed by the Chairman, the Clerk and Recorder and the
Assistant County Attorney, and sealed with the seal of the
5
County, this 3/ day of July, 1984.
( S E A L ) WELD COUNTY, COLORADO
fat--
Chairman
ATTESTED:
asC rk and�Reco County A torney
g.
-2-
County of Weld, State of Colorado
Mental Health Facilities Revenue Bonds
(Weld Mental Health Center)
Series 1984 - $650 ,000
BORROWER' S CERTIFICATE AS TO
ABSENCE OF LITIGATION AND OTHER MATTERS
T UP'epyyygned/ does hereby certjfy chat .the is
C k ( ``cc& ', the :j/4(r/« [ L-_ (office)
ofyt a�el . tal Health Center, Inc. (the Borrower) .
1 . ach of the following listed documents has been signed,
acknowledged and delivered on behalf of the Borrower by the
appropriate officer thereof:
(a) Loan Agreement , dated as of July 1 , 1984 and
actually executed on the date of delivery of the Series 1984
Bonds (the Loan Agreement) , by and between Weld County, Colorado
(the County) and the Borrower;
(b) Combination Mortgage and Security Agreement , dated
as of July 1 , 1984 and actually executed as of the date of
delivery of the Series 1984 Bond (the Mortgage) , from the
Borrower as Mortgagor to the United Bank of Greeley, as
Mortgagee.
(c) Promissory Note, dated as of the date of delivery
of the Series 1983 Bond (the Note) , payable by the Borrower to
the order of the County and endorsed to the Bank.
2. The execution and delivery of each of the documents
listed in paragraph 1 has been duly authorized by the Borrower
and all changes , modifications and additions to said documents
from the form thereof submitted to the Borrower are deemed to be
necessary or advisable and are hereby approved.
3 . No default or no Event of Default under the Loan
Agreement or the Combination Mortgage and Security Agreement has
occurred which is continuing or which, with notice or the lapse
of time, will constitute such an Event of Default.
4 . The information contained in the documents described
above is true in all material respects , and the documents do not
contain any untrue statement of a material fact nor do they omit
to state a material fact required to be stated therein or
necessary to make the statements therein, in light of
circumstances under which they were made, not misleading.
s „
or result in a breach of any of the terms and provisions of, or '
constitute a default under any indenture, mortgage, deed of
trust, loan or other agreement or instrument to which the
Borrower is a party or by which its property is bound , or any
order, rule or regulation of any court or of any federal or state
regulatory body or administrative agency or other governmental
body having jurisdiction over the Borrower or any of its
properties (including the Project as defined in the Loan
Agreement) provided , however, that the representations and
warranties in this paragraph shall not apply to the qualification
or registration of the Bond under federal securities laws or
under the law of any jurisdiction outside the United States .
6 . Any financial statements of the Borrower delivered to
the Mortgagee, under generally accepted accounting procedures ,
fairly present the financial condition and results of operations
of the Borrower as of the date and for the periods indicated and
there have been no material adverse changes therein from their
date to the date hereof.
7 . The Borrower is not in violation of any provision of,
or in default in any material respect under any indenture , lease ,
loan agreement, franchise , governmental permit or other agreement
to which it is a party or by which its properties are bound .
Except as specifically disclosed herein, there is no provision of
or any indenture, mortgage, deed of trust, indebtedness ,
agreement, instrument , judgment , decree, order, statute, rule or
regulation that materially adversely affects the business ,
properties , assets, liabilities or condition (financial or other)
of the Borrower.
8 . There are no legal , governmental or other proceedings
pending or, to the best of the knowledge of the undersigned ,
threatened or contemplated by governmental authorities or
threatened by others to which the Borrower is or may be a party,
or of which any property of the Borrower is or may become
subject , other than as disclosed in writing by the Borrower
which, if determined adversely to the Borrower would individually
or in the aggregate have a material adverse effect on the
financial position or results of operations of the Borrower or
its ability to observe and perform its obligations under the
documents listed in paragraph 1 .
9 . The Project to be acquired , constructed and installed
pursuant to the Loan Agreement will consist of financing the
acquisition and remodeling of a building the Borrower currently
occupies and the acquisition and remodeling of an additional
existing building for use by the Borrower. The application of
proceeds of the $650 ,000 Mental Health Facilities Revenue Bonds
Series 1984 anticipated as of the date of this Certificate is as
follows :
Bond Proceeds $650,000
Application
(a) Acquisition of the Facilities $ 770 Soo
(b) Remodeling & Equipping $ S3 &3 o
(c) Legal Fees $ &', 17 o
(d) Title Insurance $ Z,000
(e) Financial Advisor Fees $ /7 5-00
(f) Other _ Reset ye- FvM o $ 9 G 000
TOTAL PROJECT COST $650,000
10. A copy of the Articles of Incorporation of the Borrower
and all amendments thereof, is attached hereto as Exhibit A and
is a full , true and correct copy of such Articles and all
amendments thereto , and such Articles have not been further
amended, nor has any action been taken by the Borrower for the
purpose of effecting any further amendments or modification
thereof.
11 . Attached hereto as Exhibit B is a true and complete
copy of a resolution of the Board of Directors of the Borrower
authorizing the entering into of the Mortgage between the
Borrower, and the Mortgagee, and such resolution has not been
amended or revoked and is in full force and effect on the date
hereof.
12. The Borrower is a nonprofit corporation duly organized ,
legally existing and in good standing under the laws of the State
of Colorado and has full power, right and authority to conduct
the business in which it is now engaged and to enter into the
Loan Agreement and the Mortgage . Attached hereto as a true and
correct copy of a letter, as Exhibit C, from the District
Director of the Internal Revenue Service of the United States of
America, concerning the status of the Borrower as an organization
described in Section 501 (c) (3) of the Internal Revenue Code of
1954, as amended, and exempt from federal income taxation under
Section 501 (a) of the Code . The Borrower has not been notified
by the Internal Revenue Service of any action taken or proposed
to be taken concerning the status of the Borrower as a Section
501 (c) (3) organization, as of the date hereof.
13 . The warranties and representations of the Borrower in
the documents described in paragraph 1 hereof were true and
correct on the date of the execution of each of such documents
and are true and correct as of the date hereof.
14. The undersigned acknowledges that the covenants , '
representations and warranties contained in the documents
described in paragraph 1 of this certificate will be relied upon
by the County, the Mortgagee, the County Attorney, and Erick D.
Stowe, Professional Corporation, in giving their opinions in
connection with this transaction.
IN WITNESS WHEREOF, I have hereunto set my hand, this`-sr- th
day of July, 1984.
�/ /
(J! r
`WELD jMENTA HEALTH CENTER, INC.
A lorad Nonprofit Corporation
EXHIBIT A
(Attach Articles of Incorporation of
Weld Mental Health Center, Inc.
STATE OF COLORADO )
ss .
COUNTY OF WELD ) CERTIFICATE OF BOND
REGISTRAR
I , the undersigned, hereby certify as follows :
1 . United Bank of Greeley, Greeley, Colorado, (the Bank)
has been designated as the Bond Registrar for the issue of Mental
Health Facilities Revenue Bonds of the County of Weld, Colorado,
dated July 1 , 1984, in the principal amount of $650,000 (the
Bonds) ;
2 . On or before the date hereof, the Bank did execute the
Certificate of Authentication appearing on each of the Bonds by
the signature of an Authorized Officer;
3. That each individual whose signature appears on the
Certificate of Authentication is duly authorized to act as an
Authorized Officer of the Bank.
IN WITNESS WHEREOF, I have hereunto subscribed my name and
affixed the seal of the Bank, this — day of July, 1984 .
(BANK SEAL) UNITED BANK OF GREELEY
By: Se .g,9_49 (..L- 7lCc
/ n
Office: e
STATE OF COLORADO )
) ss . CERTIFICATE AS TO AMOUNT
COUNTY OF WELD ) AND USE OF BOND PROCEEDS
1 . In General
1 .1 I , the undersigned, as the Director of Finance and
Administration of the County of Weld, Colorado, (the Issuer) do
hereby certify that as an officer of the Issuer I am charged
either alone or with others with the responsibility of issuing
and delivering the Issuer' s Mental Health Facilities Revenue
Bonds , dated July 1 , 1984, in the principal amount of $650,000
(the Bonds) .
1 . 2 This Certificate is executed for the purpose of
establishing the reasonable expectations of the Issuer as to
future events regarding the Issuer' s Bonds . The Issuer has not
been notified of any listing or proposed listing of the Issuer by
the Internal Revenue Service as an issuer that may not certify
its bonds .
1 .3 This certification is based upon the
representations made to the County by Weld Mental Health Center,
Inc. , a Colorado nonprofit corporation. To the best of the
undersigned' s knowledge, information and belief, the expectations
contained in this Certificate are reasonable.
1 .4 The facts and estimates in this Certificate are
based on representations made by the undersigned.
-1-
2 . The Purpose of the Bonds .
2 . 1 The Bonds are being issued for the purpose of
providing funds for paying the costs of acquiring, remodeling and
equipping facilities currently occupied by Weld Mental Health
Center, Inc . , and acquiring, remodeling and equipping additional
existing facilities (the Project) within the County.
3 . Source and Disbursement Funds.
3 .1 The Bonds will be sold at a price equal to par
plus accrued interest from July 1 , 1984 to the date of this
Certificate .
3 .2 The par amount received by the Issuer from the
sale of the Bonds will be used to pay part of the costs and
expenses of completing the Project, or to reimburse the County
for amounts previously paid , as follows :
COST:
(a) Acquisition and Remodeling,
Including Contingencies $ .z (,, 13o
(b) Engineering $ - o -
(c) County Inspections f f-. ( $ - o -
(d) $ , coo
(e) Financial Advisor' s Fee $ 19.s0n
(f) Issuing Expenses $ 8.370
(g) Total $ 7� Sib
SOURCE OF FUNDS :
(h) Bond Issue Par Amount $ Cos-o, 00 -
(i) Investment Income of Bond Proceeds $ — 0 -
(j) Cash Contribution by Weld Mental
Health Center, Inc. $ /OO, 00a
(k) Total $ 7so 000
3 .3 That at least 85% of the spendable proceeds from
the sale of the Bonds will be used for completion of the Project
by 'eremites I , 197V.
-2-
4. Temporary Period.
4.1 Within six (6) months of the date of this
Certificate, the Borrower will enter into a binding obligation
with a third party to commence or acquire the Project obligating
an expenditure in excess of 2-1/2% of the Project cost or
$100 ,000, whichever is less .
4.2 Upon entering into a binding obligation for the
acquisition and completion of the Project, such acquisition and
completion will commence immediately and proceed with due
diligence to completion.
5. Bond Fund.
5 . 1 Money deposited in the Bond Fund will be used to
pay the principal of, redemption premium, if any, and interest on
the Bonds and the Issuer reasonably expects that there will be no
other funds that will be so used, except the Reserve Fund as
described in Section 3 .07 of the Indenture of Trust .
5 .2 Any money deposited in the Bond Fund will be
depleted within a thirteen-month period beginning on the date of
deposit , and any amount received from investment of money held in
the Bond Fund will be spent within a one-year period beginning on
the date of receipt.
6. Covenants and Representations .
6 .1 In Section 11 .01 of the Loan Agreement, the
Borrower has covenanted to the County that no use will be made of
the proceeds of the Bonds which will cause the Bonds to be
-3-
classified as "arbitrage bonds" within the meaning of Section •
103(c) of the Internal Revenue Code of 1954, as amended , and
regulations promulgated thereunder.
6 .2 The County has not been notified of any listing of
it by the Internal Revenue Service as an issuer that may not
certify its bonds .
7 . Expectations .
7 .1 It is reasonably expected that the Borrower and
the County will comply with the provisions of the Loan Agreement .
7 .2 This Certificate is being executed and delivered
pursuant to Sections 1 .103-13, 1 .103-14, and 1 .103-15 of the
Income Tax Regulations under the Internal Revenue Code of 1954,
as amended, and the undersigned is one of the officers of the
County charged by the Bond Ordinance and order of the County with
the responsibility of issuing the Bonds .
sr
Dated as of the 3/ day of July, 1984.
COUNT 0 WELD, 0' I '/il
re "f' o,> n
and Adm'nistration
-4-
I, ARLycc .l . os , represent that, to the best
of my knowledge, information and belief, the expectations
contained in the foregoing Certificate As To Amount and Use of
Bond Proceeds are reasonable and there are not other facts,
estimates or circumstances that would materially change the
foregoing conclusion.
57-
WITNESS , my hand this 3r day of July, 1984.
WELD MENTAL HEALTH CENTER, INC .
By: O.-- A )�X44-'--
Bo rower's Representative
-5-
STATE OF COLORADO )
) ss .
COUNTY OF WELD ) SIGNATURE CERTIFICATE
Each of the undersigned , as officers of and on behalf of the
County of Weld, Colorado, in connection with the issuance by the
County of that certain series of Mental Health Facilities Revenue
Bonds , of the County of Weld, Colorado, dated as of July 1 , 1984,
in the principal amount of $650,000 (the Bonds) , hereby certify
as follows :
1 . That the undersigned were the Chairman of the Board of
County Commissioners , and the Clerk and Recorder, respectively ,
of the County on the date of the execution and on the date of
delivery of the Bonds ;
2 . That the facsimile signature of the Chairman appearing
upon the Bonds is the facsimile signature of such officer,
respectively;
3 . That the facsimile signature was duly affixed with the
knowledge and consent of the Chairman whose facsimile signature
it purports to be and the same is hereby adopted;
4. That the manual signature of the Clerk and Recorder was
duly and manually affixed by her;
5 . That the seal which appears on each of the Bonds is a .
facsimile of the duly adopted official corporate seal of the
County, a manual impression of which is impressed on this
Certificate.
IN WITNESS WHEREOF, we have hereunto subscribed our names
and affixed the official seal of the County, this 3/ '—� day of
July, 1984.
WELD COUNTY, COLORADO
( S E A L ) 'Sao. \VMS V\Ck\p,
Cha man Prp Tem L-7111.erktrs/a/co�
Signatures affixed to the above Certificate and upon each of
the above described Bonds guaranteed as those of the officials ,
respectively, designated above.
UN TED BANK OF GREELEY
By: 7 tee,6t
Titl : � � `�
Y CERTIFICATE
COLORADO ) ss . DELI�� the duly
STATE OF ) the undersigned ,
y OF WELD Weld,
COUNT CERTIFIED by the Bounty of
IS HEREBY of the
IT County Treasurer ° Bonds ,
and acting Revenue the
Facilities 1 , 1984 in
qualified Mental Health July
that as of to
Colorado, dated duly delivered
Colorado , (the Bonds) were Inc,
of Weld, of $650 ,000 ,
County DeMonbrun
al amount Inc. , Anderson the
principal Securities, interest to
Division,
Prudential-Bache Colorado , together with accrued
Division, Denver ,
date set forth below , as follows :
$650 ,000
Principal Amount:
Interest .63g
d Int 1984: the
Accrued
1 ' made in
from statements
Total that the the Bonds,
further certified
the County and
And it is concerning relating
to
Affidavits and Certificates
e not limited
i ed to provisions therein s and
their
but Ilm Commissioners the
of County regarding
including the Board litigation
of any and
officers °f the absence true and correct to
remain if execute
signatures and to the Bonds , same as
officers °r the se
this Certificate' paragraphs therein
County , its date of the P
including the and each of
said date; specific reference. 4.
and dated on J of July, 198
incorporated herein by
forth is Colorado, this day
DATED at
Greeley, cm
Treasurer
Hello