HomeMy WebLinkAbout941606.tiff Atle3bf416.
EMERGENCY ORDINANCE NO. 179
IN THE MATTER OF REFINANCING LEASE FOR HUMAN RESOURCES BUILDING; APPROVING AND
AUTHORIZING THE EXECUTION AND PERFORMANCE OF AN AMENDED AND RESTATED LEASE AND
PURCHASE OPTION AGREEMENT RELATING THERETO; DECLARING AN EMERGENCY WITH RESPECT
THERETO; AND AUTHORIZING PERFORMANCE OF ALL ACTION REQUIRED IN CONJUNCTION WITH
THE FOREGOING
BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF WELD, STATE
OF COLORADO:
WHEREAS, the Board of County Commissioners of the County of Weld, State of
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, Weld County, Colorado (the "County") , is a body politic and
corporate of the State of Colorado existing as a county pursuant to the Colorado
Constitution and Section 30-5-122, CRS, as amended, and
WHEREAS, Section 30-11-104, CRS, as amended, requires counties to provide
necessary county buildings, and to keep them in repair, and
WHEREAS, the County executed a Human Resources Building Lease Purchase
Agreement, dated as of July 1, 1988 (the "Original Lease") , between Weld County
Finance Corporation (the "Corporation") , as lessor thereunder, and the County,
as lessee thereunder, and
WHEREAS, the County desires to refinance the Original Lease pursuant to the
terms of an Amended and Restated Lease and Purchase Option Agreement, (the
"Lease") between the County and Norwest Investment Services, Inc. , (the "Lessor")
and to lease the property therein described (the "Project") upon the terms and
conditions set forth in the Lease, and
WHEREAS, there were issued Certificates of Participation (the
"Certificates") in the Original Lease, pursuant to a Mortgage and Indenture of
Trust, dated as of July 1, 1988 (the "Indenture") , between the Corporation and
the Colorado National Bank of Denver, as trustee (the "Trustee") , and
WHEREAS, the Original Lease may be terminated upon the discharge of the
Indenture, and
WHEREAS, it has been proposed that Indenture be discharged in accordance
with an Escrow Agreement (the "Escrow Agreement") with respect to the
Certificates, and
WHEREAS, it is necessary to provide for the approval of the Lease and the
other instruments and matters required for the refinancing of the Project
obligations, as hereinafter described.
ORDl79
B 144O RC 02387416 05/09/94 14 : 08 $0 . 00 1/003
E
F 1749 MARY ANN FEUEHSTEIN CLERK w RECORDER WELD CO, CO 941606
RE: EMERGENCY ORDINANCE #179
PAGE 2
NOW, THEREFORE, BE IT ORDAINED, by the Board of County Commissioners of the
County of Weld, State of Colorado:
Section 1. Finding and Determination Concerning the Project. The Board
of County Commissioners of the County hereby finds and determines that the
refinancing of the Project at lower interest rates under the terms and provisions
and for the purposes set forth in the Lease hereinafter approved and authorized
are appropriate and necessary for conducting County business, are suitable for
such purposes and in furtherance of the governmental and proprietary purposes of
the County and are in the best interests of the citizens of the County, and the
Board of County Commissioners of the County hereby grants its approval and
authorizes the leasing of the Project in the manner provided herein.
Section 2. Approval and Authorization of the Lease. The proposed Amended
and Restated Lease and Purchase Option Agreement, between the Lessor and the
County, as lessee (the "Lease") , in the form presented to the County and
incorporated herein by reference, is in all respects approved, authorized and
confirmed, and the Chairman of the Board of County Commissioners is authorized
and directed to execute and deliver the Lease in substantially the form and with
substantially the same content for and on behalf of the County.
Section 3. Approval and Authorization of Warranty Deed to the Lessor. A
warranty deed (the "Warranty Deed") conveying fee simple title in the Project to
the Lessor is in all respects approved and authorized and the County is
authorized and directed to execute the Warranty Deed on behalf of the County and
to deliver same to Norwest Investment Services, Inc. upon receipt of a deed from
the Corporation under the Original Lease. In lieu of the execution of the
Warranty Deed, a deed may be executed directly to the Lessor by the Corporation.
Section 4. Authority to Correct Errors, Etc. The Chairman of the Board
of County Commissioners of the County is hereby authorized and directed to make
any alterations, changes or additions in the instruments herein approved,
authorized and confirmed necessary to correct errors or omissions therein, to
remove ambiguities therefrom, or to conform the same to other provisions of said
instruments, to the provisions of this Ordinance, or to the provisions of
Colorado or federal law.
Section 5. Severability. If any provision of this Ordinance shall be held
invalid, the invalidity of such provision shall not affect any of the other
provisions of this Ordinance.
Section 6. Further Authority. The County Clerk to the Board is hereby
authorized to attest to all signatures and acts of any property official of the
County, and to place the County's seal on any documents authorized, necessary or
proper pursuant to this Ordinance. The Chairman of the Board of County
Commissioners of the County and other proper officials of the County, and each
of them, are hereby authorized to execute and deliver for and on behalf of the
County any and all additional certificates, documents and other papers and to
perform all other acts they may deem necessary or appropriate in order to
implement and carry out the matters herein authorized.
$O . 00 2/003 ORD179
B 1440 REC 62387410 05/09/94 14 : 08 CO
1750 MARY ANN FEDERSTEIN CLERK & RECORDER WELD CO,
RE: EMERGENCY ORDINANCE #179
PAGE 3
Section 7. Bank Eligibility. The County has not issued or effected the
issuance of, and reasonably anticipates that it shall not issue or effect the
issuance of more than Ten Million Dollars ($10, 000,000.00) of tax-exempt
obligations during the. 1994 calendar year, and hereby designates the Lease as a
"qualified tax-exempt obligation, " as defined by Section 265(b) (3) of the
Internal Revenue code of 1986, as amended.
Section 8. Emergency. In order to assume the refinancing may proceed at
the lowest possible cost to the County, and in consideration of all recitals and
determinations herein contained, the Board pursuant to the Home Rule Charter of
the County determines this to be an emergency ordinance.
Section 9. Effective Date. This Ordinance shall be in full force and
effect upon the date of its passage and adoption.
BE IT FURTHER ORDAINED by the Board, if any section, subsection, paragraph,
sentence, clause, or phrase of this Ordinance is for any reason held or decided
to be unconstitutional, such decision shall not affect the validity of the
remaining portions hereof. The Board of County Commissioners hereby declares
that it would have enacted this Ordinance in each and every section, subsection,
paragraph, sentence, clause, and phrase thereof irrespective of the fact that any
one or more sections, subsections, paragraphs, sentences, clauses, or phrases
might be declared to be unconstitutional or invalid.
The above and foregoing Emergency Ordinance Number 179 was, on motion duly
made and seconded, adopted by the following vote on the 2nd day of May, A.D. ,
1994.
//s BOARD OF COUNTY COMMISSIONERS
ATTEST: - ? WELD COUNTY, COLORADO
Weld County Clerk to the Board
H. Webster, C air n
BY: 5 I '.. l I
Deputy _Yerik_ o, the Board Dale K. Hall, ro- em
APPROVED AS TO -FORM: �r, j , . �Jx.
eorge ,E: Baxter
County Attorne nstance L. Harbert
:'Barbara J. Kirkmeye
Read and Approved: May 2, 1994
Publication: May 5, 1994
Effective: May 2, 1994
B 1440 NKr 02187416 05/09/94 14: 08 $0 . 00 3/003 ORD179
H' 1 /5L MARY ANN FEUERSTEIN CLERK & RECORDER WELD CO, CO
psteROPseCY WillIAMK I WHEREAS, the oval,
NQ.]tySection 4. Authority to '
Lens may be terar et se Correa Errors,Etc. The
open et elaaherSe a M
IN THE MATTER OF _and Chairman County
the Board of.
REFINANCING LEASE FOR Ceenty iCommissioners of
HUMAN RESOURCES WHEREAS, it has been the County is hereby
BUILDING; APPROVING proposed that Indenture M authorized and directed to
AND AUTHORIZING THE discharged in accordance
add any altetatlens, e
EXECUTION AND with an Escrow Agreement Sew or additions in M
PERFORMANCE OF AN E e ins Agreement.) Ills ruments herein AFFIDAVIT OF PUBLICATION
AMENDED AND respect to the approved.authorized and
withRESTATED LEASE AND CerlaesYa and caveat
necessary to STATE OF COLORADO
PURCHASE OPTION coved errors or omissionsto
AGREEMENT RELATING 1MIPIiN M is neceaeay therein, to remove
THERETO; DECLARING M/Ieddelef S ecesdd ambiguities therefrom,or to SS
AN EMERGENCY WITH Nye Leine and the oilierconform the same to other COUNTY OF WELD
RESPECT THERETO:AND. ismcnts end molten provisions of said
AUTHORIZING Instruments, to the
PERFORMANCE OF AI2. Her the retina praWlens of this Ordinance, ROGER A. LIPMEY
of said County of Weld, being duly
ACTION REQUIRED IN PMMmobligati es or to the provisions of
COtuutic ION WITH THE IleraNaM described. sworn,
. Cobrado or federal knsworn,say that I am publisher of
FOREGOING THEREFORE,SE IT
by the Bosh a Section 5. SeversbINry. If
BE IT ORDAINED BY THE CBndl'�missioners a any' provision of M s WINDSOR BEACON
BOARD OF COUNTY Ordinance shall be held
COMMISSMM/CA al Weld,Stela q
COUNTY1O OF OF TIE Weld,the invalidity of such
COUNTY OF WELD. Coloredspraeleb^shallnotEledmy a weekly newspaper having a general circulation in said
STATE OF COLORADO: Entire 1. Finding and Hawether provisions a this County and State, published in the town of WINDSOR, in°ns""C
Detsrminetlon Concerning e' said County and State; and that the notice, of which the
WHEREAS,the Board of
the Proud. The Board of Matro pry.. annexed is a true copy,
County Commissioners ofSete 6. Further
comas y herebyoner.dto has boon published in said weekly
Co on d Was, vet to v hereby finds red The County Clerk o the for ! 8UO^.BSgjye weeks, that the notice was
Colorado, pursuant to determines that IM send le hereby authorised
Colorado statute and the vep,mnpyq of the Project N M arm to all signatures and
published in the regular and entire issue of every number d
Weld County Home Rule loiter Interest rates under d rsgCwnryroper d m Met
the paper during the period and time of publication, and in
prrtet k vested with the the terms and provisions w County's seal on any the newspaper proper and not in a supplement,
authority of administering and for the purposes se pp r1t, and that
doesmenta authorized,
the chairs of Weld County, lath In the Lease hereinafter the first publication of said notice was in said paper bearing
Culererb.and approved end authorized ere ases S toary or proper
appropriate and necessary ►nesrmrx to this Ordkwnoe. gate of the
WHEREAS,Weld County, for conducting County The Chairman of the BOW _d of
ay �. A.D., 19 `7Y and the
. d pro 'County'),is• u sou are suitable for d County COmmitwYms d
body politic and corporate of such purposes and in w County and other proper last publication bearing he date of the
the Bland of Colorado furtherance of theM aids of the Comity,and _day of
existing as a county governmental and seal.of them,are hereby , AD., 19 and that
pursuant to the Colorado proprietary purposes of w authorized to execute and the said WINDSOR BEACON has been published
IConstitution and Section 30- Coady and ere in the best daMwr for and on be1Wl q continuously and uninterruptedly for the period of 5
5-122, M 22,CRS, as amended, erss of a tethe citizens the County any end ell
and the Cmmy,and the Bearded additional cenBlcaMs, consecutive weeks, insaid County and State, prior to the
County Commissioners 01 Ilearsintsandetherpapers date of first publication of said notice, and the same is a
WHEREAS,Section 30-11- the Cony hereby grin its all M Perform all Other KU newspaper within the meaning of an Act to regulate printing
104, CRS, as amended, approval end authorizes w they may doom n
requires counties to provide k the Project or eeetoPrlate in order to
Hasty ofn wof legal notices and advertisements, approved May 18,
lamnecessary county buildings, merxwplwidedheren. eMrmeraherepneutl Y M
1931,and all prior acts so far as in force.
and to keep them in repair,
end Section 2. Approval and Seiko 7. Basket .
/‘ 61
Awhersatlaon of the Leal. The County has net WPM
WHEREAS, the County The proposed Amended we sr ererW the ssuana a, s
executed a Human Restated Lease and we reasonably anticipates •
Resources Building Lease Purchase Option that It shall not issue or _
Puretmse Agreement,dated Agreement, between the GSM w issuance d more ()CA- ISFiER
as at Ary Lamm 1, 1988 (the Las and the County,as than Ten Million Dollars V
'Original Lease•),between ewes(the'Lease'),in w (110,000,000.00) of tax- Subscribed and sworn to before e this �/
Weld County Finance form presented to the exempt obligations duringJn day of
Corporation (the County and incorporated w twos calendar year,and GC.c� 19 x�7J
'Corporation•),as lessor horde by reference,s n/ hereby designates the
thereunder,et,and the County, rashers approved, Up exempt a"qualifiedobligation,'l as
ax- J''�O�"""'"4" / /LLf1N'/vs
es lesseswreurMer,eM and the Che'�authorized tlrmanfaw !tllMW by Seddon led(n3)
WHEREAS, the County Board of County of M Internal Revenuer NOTARY PUBLIC
desires to refinance the Commissioners is coda al 1986.es amended.
Original Leese pursuant to sumaised and directed to
Ma terms of an Amended execute and deliver the SeYon 8. Emergency. In My commission expires Z, re /J(n
and Restated Lease and Lem In substantially the order to assume the
Percao Option tom,and with subslentley Mwnpng may proceed al
ASreemav,(the'Lean') wpm w content for m on m lowest est possible cost to BE IT FURTHER
• es th
e County and Shell ol the County. the County, and In ORDAINED by the Beard.It The above and foregoing
M
Natereet Investment emtelderation of all recess any section, subsection, Emerlseey Ordinance
fleralie..(the'Lessor•) Section 3. Approval and one determinations herein paragraph, sentence,
Nopr4 lA srss,on malerr
contained, the Bated clause, orphrase of its duly made antl seconds,
as� ldlialee the property Authorization of Warranty adopted b the followin
herein described (the Deed to the Lesser. A aes^r to the Horge Rule Ordnance is for any reason wain the 2nd de g
'hdMd')upon the terms warranty Deer)deed � Charter of the County held or decided to be AO.,1eN. Y d m--
(the
ad eNMlons set forth in deteannea this to be an unconstitutional,tutll nal, such AM 1S,and tee staple cps n w peg ' avwgncy ordinance. decision shall not affect the BOARD OF COUNTY
to the Lesser s m all validity of the remaining
facllsn 9. Effective Dere. -portions hereof. The Board COMaM11ONERS
there were respects approved and This Ordinance shall be in !of County Commissioner. EST:WELD COUNTY, APPROVED AS TO FORM:
/asalsa Certificates of authorsed and w County s Mime lap and effect upon the 'hereby declares that t would C°LORADO George E.Baxter
n)ew Wn (the authorized and directed 10 date of its passage and have enacted this Ordinance
in the Original expos the Warranty DeedWeld County Clerk to the County Attorney Constance
pursuant to a edogbn. In each and every paragraph,
baN• !p on behalf of the County andBoard: W. H. Webster,
and Indenture d subsection,clause, and
Boar den L.Harbert
erMAMeto deliver same to Naves sentence, and Barbara J.Kirkmeyer
Aunt,Sled as of Jul 1, Y
Y Investment Services, Inc. phrase thereof irrespective o e
Tent Ellie 'Indenture'), upon receipt of a deed from of the fact that any one or Deputy Clerk to the
N the
t ea the Corporation under the
moss esetbns,tu►estYY, rantiey IL Nees Pro-Tem Read and Approved: May 2,
SrM d Worm;as non Onpkrel lease. In Wv of w Paragraphs, sentences. 1994
,T ,)'and Deed,
a the Werra* clauses,or phrases might be
She Deed, a deed may be declared to be Effectle:May 2,1904
executed directly to the unconstitutional or invalid.
Lessor by the Corporation. Published In the Windsor
Beecan on lay 5,INC
ti Avg
CLERK TO THE BOARD
\ P.O. BOX 730
' GREELEY,COLORADO 00092
0091330.1000 EXT.1223
C.
COLORADO
STATE OF COLORADO )
ss
COUNTY OF WELD
I, Donald D. Warden, Clerk to the Board of County Commissioners, in
and for the County of Weld, State of Colorado, do hereby certify that the
attached Ordinance No. 179 is a duplicate of the original Ordinance
adopted at a regular meeting of the Board, held in the Chambers of the
Board of Weld County Commissioners, Weld County, Colorado, at the
Centennial Center in Greeley, Colorado, on Monday, the 2nd day of May,
1994, commencing at the hour of 9:00 a.m. as recorded in the official
Record of the Proceedings of said County kept in my office, insofar as
said proceedings relate to an ordinance authorizing the execution of an
Amended and Restated Lease and Purchase Option Agreement; that said
proceedings were duly had and taken; the meeting was duly held; and that
the persons were present at said meeting as therein shown.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal
of said County at Greeley, Colorado, this 2nd day of May, 1994.
LuMa7
CLERK TO THE
BOARD
apzqBY: j
/�-
DEPUTY C RK TO THE BOARD
WELD COUNTY, COLORADO
AMENDED AND RESTATED LEASE
AND PURCHASE OPTION AGREEMENT
Dated
CERTIFICATE AS TO AMOUNT AND USE Or PROCEEDS
1 , the duly chosen, qualified and acting Chairman
(the "Chairman") of the Board of Commissioners (the "Board") of Weld County, Colorado
(the "County"), do hereby certify in the name and on behalf of the County, but not in an
individual capacity, the following facts, estimates, circumstances and expectations, as of the
date of execution of the above-captioned Lease (the "Lease"), as follows:
1. General.
1.1 can. As the Chairman, charged with others with the responsibility
for executing the Lease, my certification may be relied upon as the certification of the
"Issuer" pursuant to Treasury Regulation Section 1.103-13(a)(2)(ii).
1.2 Documents. I am familiar with the official action taken by the County
at a regular meeting of the Board of County Commissioners of the County held on May _,
1994, authorizing the execution and delivery of the Lease (the "Ordinance") and with the
Lease.
1.3 capitalized Terms. Capitalized terms used but not defined herein shall
have the meanings assigned by the Ordinance or the Lease unless the context hereof requires
otherwise.
2. The Lease.
2.1 Purpose. The Lease is being executed to refund the Certificates of
Participation maturing on and after July 1, 1994 (the "Refunded Certificates") and to pay
certain costs of issuance in the amount of $11,303.35. All proceeds of sales
of ffnterests uansen
the Lease are to be applied to refund the Refunded Certificates, and pay costs
2.2 Authority. The Lease is being executed pursuant to the Ordinance and
the laws of the State of Colorado.
2.3 Date of Lease and of Issue. The Lease is dated as of May _, 1994,
and the date of issue is also May _, 1994.
CN-05394
DN-69969.I
3. Amount and Distribution of Proceeds at Closing.
3.1 Sale to Purchasers. The Lease has been sold by Norwest Investment
Service, Inc. (the "Lessor") for the price of $704,953.35.
3.2 Issuance Costs and Net Proceeds.
(a) The net amount of proceeds to be received by the County for
purposes of the refunding, after payment of costs of issuance, from the sale of the
Lease will be $693,650.
•
(b) The costs of executing the Lease, to be paid from proceeds of
the sale of the Lease to the public will be $11,303.35. The costs have been incurred
or are reasonably expected to be incurred as a cost of executing the Lease, and is
believed to be reasonable for the services being rendered there for.
3.3 Initial Purchase Price and Yield. "Yield" means that percentage rate
which when used in computing the present value of payments of principal of and interest and
all the payments for a qualified guarantee paid and to be paid with respect to the Lease
produces an amount equal to the purchase price thereof. Under Section 148 (h) of the
Internal Revenue Code of 1986, as amended (the "Code"), "yield" on the Lease is
determined on the basis of issue price within the meaning of Section 1273 of the Code,
which is the initial offering price to the public (excluding bond houses and brokers) at which
a substantial amount of the Lease was sold, or Section 1274 of the Code. Based on the issue
price, the Lessor has certified that the initial yield on the Lease is 4.65%.
For purposes of this certificate, "yield" on any obligation purchased for
investment will mean the yield which, when used in computing the present worth of all
payments of principal and interest to be paid on the obligation, produces an amount equal to
the purchase price. Such yield will be calculated using the same frequency interval of
compounding interest as that used in calculating the yield on the Lease.
3.4 Distribution of Proceeds at Closing. The proceeds of the Lease totaling
$704,953.35 received by the County from the sale of the Lease are expected to be needed
and fully expended as follows:
(a) $693,650 will be used to acquire certain Federal Securities (as
defined and set forth in the Escrow Agreement) in order to refund the Refunded
Certificate.
(b) $11,303.35 will be used to pay costs of issuance at closing and,
accordingly, will not be deposited into any fund or account of the County.
CN-05394
DN-69%8.I 2
Lease will therefore be used to pay costs of
All used the acquire
theof the
refund the Refunded oceedsor to be to acquire Federal Securities in order to
issuance, final proceeds of
Certificates. On the date hereof, all of the original Refunded Proceeds. governmental purposes of the Issuer,
3.5expended for the g o 1
have been ;
the Refunded Certificates of the Refunded Certificates will be transferred proceeds.
and thus no proceeds
4 Funds Investments. Lease proceeds deposited into the Certificate
Certificate Account. The Le
4.1 e used on th Refunded Cehe date rtificates
to
with al respect curi to the be used
to defease and discharge he Refund d Certif
0 ificates will be Account createdtransferred
the Escrow Agreement. Prior to the date on which }
purchase the Federal Securities to use 5 u and (iii) is Y
as provided in the yield permitted on the Federal Securities (other than trans
ed
Regulation \-
Section 1.103se (416(50%)(and P equals the I Original
Certificate is discharged,ere Treasury yield on the proceeds, if any) equals the Y plus accrued interest of $0 minus original 0Refunding
x Y Proceeds
where I qaccrued
interest
of such minus must n l
Refunding unt of $ (pquals $ of ,953.$704,953.35
or 4.692°ID• ase set out above. The
equals $7ly higher
yield on the proceeds is
issue discount yield
d not materially higheL than the yield.
be
purchased with Refunding
invested at a Y the Federal Securities to be
purchase price of e d on the Federal Securities is less than the permittedgeneral
$693,650. The y fund or
Lease payments will be made when dusl�°i g
4 2 Sinkin unndd does not expect to create or establish any
The County other account or funds
that
f
funds of the County•respect to the Lease. No other amounts in any
the Co fund with r pledged reasonableits any
are reserved or p ed for debt service ion a y e and it is not ex
the rwill , available theret pay debt service assurance if the that ty
any on other accounts accounts s funds will n s used,
portion of such other difficulty r fundsfor investment
encounters financi
al and amounts in the General Fund are-insufficient tit therefore.
Minor Portion To the exteoof the proceeds otherwise g of the Lease not
be invested at an dseofrthe yield pursuant
4.3 herein, an amount yield under this
yield os provided ase maY
t Sn ction 148 o proceeds . the of
exceeding e of the Code. The total amount invested at an unrestricted to Section ( ) allproceeds of
paragraph 4.6 will not exceed $100,000. as specifically set out above,
4 4 yield Restrictions.
Except specifically
the a et out l n
the Lease must be invested at a yield not to exceed the yield
paragraph 3.2 above.
3
0-0539
DI•699611
5. Rebate.
5.1 Amount. It is expected that all of the gross proceeds of the Lease will
be subject to the rebate requirement; however, it is not anticipated that rebatable arbitrage
will be earned on the Lease proceeds.
5.3 Payment. If any of the requirements and expectations set out in
paragraph 5.1 are not fulfilled, the County agrees to compute and pay arbitrage rebate in
accordance with Section 6.1 (2) hereof.
6. Covenants and Representations.
6.1 Tax Covenants. The County covenants to and for the benefit of the
holders of the Lease that it will not take any action, or fail to take any action, if any such
action or failure to take action would adversely affect the exclusion from gross income of the
interest on the Lease and original issue discount properly allocable to the holders of the
Lease under Section 103 of the Code, including, but not limited to, the following:
a. Arbitrage. The County will not directly or indirectly use or
permit the use of any proceeds of the Lease or any other funds of the County in such
a manner, or take or omit to take any action, that would cause the Lease to be an
"arbitrage bond" within the meaning the Section 148 (a) of the Code. To that end,
the County will comply with all requirements of Section 148 of the Code to the extent
applicable to the Lease. In the event that at any time the County is of the opinion
that for purposes of this paragraph 6.1, it is necessary to restrict or limit the yield on
the investment of any moneys held by the Trustee for the benefit of the County under
the Ordinance, the County shall take such action as may be necessary.
b. Rebate. The County agrees that there shall be paid from time to
time all amounts required to be rebated to the United States pursuant to Section 148
(f) of the Code, any temporary, proposed or final Treasury Regulations as may be
applicable to the Lease from time to time. This covenant shall survive payment in
full or defeasance of the Lease.
c. Private Business Use Limitation. The County shall assure that
(i) not in excess of ten percent (10%) of the Net Proceeds of the Lease is used for
Private Business Use if, in addition, the payment of more than ten percent (10%) of
the principal or ten percent (10%) of the interest due on the Lease during the term
thereof is, under the terms of the Lease or any underlying arrangement, directly or
indirectly, secured by an interest in property used or to be used for a Private Business
Use or in payments in respect of property used or to be used for a Private Business
Use or is to be derived from payments, whether or not to the County, in respect of
property or borrowed money used or to be used for a Private Business Use; and (ii)
that, in the event that both (A) in excess of five percent (5%) of the Net Proceeds of
CN-05394
DN69958.1 4
the Bonds are used for a Private Business Use, and (B) an amount in excess of five
percent (5%) of the principal or five percent (5%) of the interest due on the Lease
during the term thereof is, under the terms of the Lease or any underlying
arrangement, directly or indirectly, secured by any interest in property used or to be
used for said private Business Use or in payments in respect of property used or to be
used for said Private Business Use or is to be derived from payments,or to be used fro r not
to the County, in respect of propertyor borrowed money u
Private Business Use, then said excess over said five percent (5%) of Net Proceeds of
the Lease used for a Private Business Use shall be used for a Private Business Use
related to the governmental use of the Improvements.
d. Private Loan Limitation. The County shall assure that not in
excess of the lesser of five percent (5%) of the Net Proceeds of the Lease or
$5,000,000 are used directly or indirectly, to make or finance a loan (other than�loans
f
the constituting
to personsse oherestments (within the meaning of than state or local government units Section 148 (f) (6) (A)
e. Registration. The County shall take all necessary action to have
the Lease registered in the books of the County within the meaning of Section 149(a)
of the Code and any regulations promulgated thereunder.
f. Federal Guarantee Prohibition. The County shall not take any taken if the result of the action or permit or f der any action within the meaning of Section 149 (b) of would be to
cause the Lease to "federally guaranteed"
the Code and any regulations promulgated thereunder.
g. Information Reporting. The County shall timely file a Federal
information return with respect to the Lease as required by Section 149 (e) of the
Code.
For purposes of this paragraph 6.1, the following definitions apply:
Net Proceeds: when used with reference to the Lease, means the face amount
of the Lease, plus accrued interest and premium, if any, less original issue discount and less
proceeds deposited in a reserve fund (if any).
Private Business Use: means use (directly or indirectly) in a trade or business carried on y carried on by a person other th natural
person, excluding,howevey a natural r user
erby a statetortlocal governmental unit and use as a
in any aamember
P
of the general public.
CN-05394 5
DNL9%8.
6.2 Refunding Representations.
(a) The Refunded Certificates were issued July 14, 1988, and have
not been previously refunded.
(b) The Refunded Certificates are first subject to redemption on
July 1, 1994.
(c) No device has been employed in connection with the issuance of
the Refunding Certificates to obtain a material financial advantage (based on arbitrage) apart
from any earnings attributable to lower interest rates.
(d) The Refunded Certificates are not private activity bonds whose
advance refunding is prohibited by Section 149(d)(2) of the Code.
6.3 The County has not been listed or advised of any proposed listing of
the County in the Internal Revenue Bulletin or otherwise by the commissioner of Internal
Revenue as an issuer that may not certify its bonds.
6.4 Subsequent Opinion of Bond Counsel. Notwithstanding any provision of
this certificate, if the County shall receive an opinion of nationally recognized bond counsel
to the effect that any action required under this certificate is no longer required, or to the
effect that some further action is required, to maintain the exclusion from gross income of
the interest on the Lease, the County may rely conclusively on such opinion in any deviation
from complying with the provisions hereof.
7. Expectations.
7.1 Use of Proceeds. All proceeds of the Lease will be used for the
payment of less than six months accrued interest attributable to the Lease, the costs of
construction of the Facility or the payment of administrative expenses with respect to the
Lease. Accordingly, the proceeds of the Lease will not exceed by more than 5% the amount
necessary for the purpose or purposes of the Lease as those terms are used in Treasury
Regulation Section 1.103-13 (b) (5) (iv), and there will be no excess proceeds of the Lease in
excess of 1% of the original proceeds of the Lease as those terms are used in Treasury
Regulation Section 1.103-15.
7.2 Section 148. The Lease is not and will not be part of a transaction or
series of transactions that attempts to circumvent the provisions of Section 148 of the Code
and the regulations promulgated thereunder (i) enabling the County to exploit the difference
between tax-exempt and taxable interest rates to gain a material financial advantage and (ii)
increasing the burden on the market for tax-exempt obligations.
CN-05398 6
DN-69968.1
7.3 Hedge Bonds. The Lease will not be hedge bonds because, as provided
in Section 149(g)(3)(C) of the Code, the Refunded Certificates were not hedge bonds and
would not have been hedge bonds had the provisions of Section 149(g) been in effect the
Refunded Certificates were issued, because:
(i) on the date of issue of the Refunded Certificates, the
County reasonably expected that eighty-five percent (85%) of the spendable proceeds
of the issue would be spent for the governmental purposes of the issue within three
years of the date of issue and such amount was spent within that time, and
(ii) not more than fifty percent (50%) of the proceeds of the
Refunded Certificates were invested in nonpurpose investments (as defined in Code
section 148 (f) (6) (A)) having a substantially guaranteed yield for four years or more.
7.4 Issuance of Additional Obligations. No bonds or other obligations have
been issued, sold or delivered by the District within thirty-one days (31) prior to the date of
delivery of the Lease, and ending thirty-one days (31) following the date hereof pursuant to a
common plan of financing with the plan for the issuance of the Lease and payable out of
substantially the same source of revenues.
7.5 Replacement. None of the proceeds of the Lease will be used directly
or indirectly to replace funds of the District, used directly or indirectly to acquire obligations
at a yield materially higher than the yield on the Lease or otherwise invested in any manner,
except as such investments are specifically authorized above.
7.6 Purpose. This certification is being executed and delivered pursuant to
Treasury Regulation Sections 1.103-13, 1.103-14 and 1.103-15.
7.7 Non-Arbitrage Bond. To the best of my knowledge, information and
belief, the above expectations are reasonable. On the basis of the foregoing, it is not
expected that the proceeds of the Lease will be used in a manner that would cause the Lease
to be an "arbitrage bond" under Section 148 (a) of the code and the regulations promulgated
thereunder, and, to the best of my knowledge and belief, there are no other facts, estimates
or circumstances that would materially change the foregoing conclusion.
WITNESS the hand and official seal of the County this t) = day of
1994.
�� WELD COUNTY, COLORADO
By: i _
(SEAL) _-1 ,,� _ ,
Chairman, Board of County (,
Commissioners
CN-05594
DN-69968.1
WELD COUNTY, COLORADO
HUMAN RESOURCES BUILDING
AMENDED AND RESTATED LEASE AND PURCHASE OPTION AGREEMENT
DATED MAY 4, 1994
INDEX
Date, Time and Place of Closing May 4, 1994, 10:30 a.m. at the offices of:
Brownstein Hyatt Farber & Strickland, P.C.
410 Seventeenth Street, 22nd Floor
Denver, Colorado 80202
Terms Used Herein:
Special Counsel Brownstein Hyatt Farber & Strickland, P.C.
County Weld County, Colorado
County Attorney Bruce Barker, Esq.
Lessor Norwest Investment Services, Inc.
04/22/94
CN-5394
DN-69858.1
DOCUMENTS
Operative Documents
1. Ordinance of Board of County Commissioners
2. Amended and Restated Lease and Purchase Option Agreement, dated May 4, 1994
3. Deed from Weld County Finance Corporation to Lessor, dated May 4, 1994
4. Irrevocable Letter of Instruction from the County, dated May 4, 1994
County Documents
5. Certificate as to Amount and Use of Proceeds
6. General and No-Litigation Certificate
7. IRS Form 8038-G
Legal Opinions and Other
8. Opinion of County Attorney
9. Opinion of Special Counsel
04/22/94
O4-5394
DN-69858.1
Form 8038-G Information Return for Tax-Exempt Governmental Obligations
fr Under Internal Revenue Code section 149(e) OMB No. 1545-0720
(Rev.May 1993) ► see separate Instructions.
Department of the Treasury (Use Form 8038-GC if the Issue price is under 5100,000.)
internal Revenue Service
rein Reporting Authority If Amended Return, check here ► 0
1 Issuer's name 2 Issuer's employer identification number
Weld County, Colorado 84 6000813
3 Number and street (or P.O.box if mail is not delivered to street address) Room/suite 4 Report number
915 Tenth Street I G19 94 - 1
5 City,town,state,and ZIP code 6 Date of issue
Greeley, CO 80632 May , 1994
7 Name of Issue -8 CUSIP Number
�Amended and Restated Lease None
`r'11L Type of Issue (check applicable box(es) and enter the issue price)
• Issue price
9 0 Education (attach schedule—see instructions) $
10 0 Health and hospital (attach schedule-see instructions) 704,953.35
11 0 Transportation
12 0 Public safety
13 0 Environment (including sewage bonds) •
14 0 Housing
•
15 0 Utilities
16 0 Other. Describe (see Instructions) ►
18 If obligations are tax rm revenue anticipation l bonds,sale check box ► 0
18 If obligations are in the form of a lease or installment sale, check box ► 0
Part III Description of Obligations
Maturity e) date Interest rate Issue cprice Stated redemption Weighted yaM Net interest
price at maturity average mated cost
19 Final maturity. N/A N A % N/A N/A �/%//%/%%/%%%///��/////%%%/
20 Entire issue %///%/Q/////%%///���%////l/j 704,953.35 N/A 3.5 years 4.650 % 5.500 %
Part IV Uses of Original Proceeds of Bond Issue (including underwriters' discount) N/A
21 Proceeds used for accrued interest 21
22 Issue price of entire issue (enter amount from line 20, column (c)) 22
23 Proceeds used for bond issuance costs (including underwriters' discount) 23
24 Proceeds used for credit enhancement 24
25 Proceeds allocated to reasonably required reserve or replacement fund . 25
26 Proceeds used to refund prior issues 26
27 Total (add lines 23 through 26) 27
28 Nonrefunding proceeds of the issue (subtract line 27 from line 22 and enter amount here), , 28
Part V Description of Refunded Bonds (complete this part only for refunding bonds) N/A
29 Enter the remaining weighted average maturity of the bonds to be refunded ► years
30 Enter the last date on which the refunded bonds will be called ►
31 Enter the date(s) the refunded bonds were issued It-
Part VI Miscellaneous
32 Enter the amount of the state volume cap allocated to the issue • ► —0-
33 Enter the amount of the bonds designated by the issuer under section 265(b)(3)(B)(i)(1II) (small issuer
exception) ► 704,953.35
34 Pooled financings:
a Enter the amount of the proceeds of this issue that are to be used to make loans to other governmental units ►
b If this issue is a loan made from the proceeds of another tax-exempt issue, check box ► ❑ and enter the name of the
issuer ► and the date of the issue 0-
35 If the issuer ha lected to pay a penalty in lieu of rebate, check box ► 0
Under nalties of perjury,I declare that have examined this return and accompanying schedules and statements,and to the best of my knowledge
and b id,they are true,correct,end plat
Please pp f
Sign /6.17,42, /.// ��� / y7'/ �i2 Yi/lu,7::Le 2 ffj7r,;nis 6?h9-
Here
gn ere of office Dale / ,Type or print name and title
For Paperwork Reduction Act Notice, see page 1 of the Instructions. Cat.No.637738 Form 8038-G ( .5-93)
6/28/93 - Published by Tax Management Inc.,a Subsidiary of The Bureau of National Affairs, Inc. 8038-G.1
STATE OF COLORADO )
) ss. GENERAL AND NO-LITIGATION
COUNTY OF WELD ) CER r1rHCATE
The undersigned, being first duly sworn on oath, deposes and says:
to the Board
That the is the County Clerk andxReoa.rdenof Weld County, Colorado; that said
County has been regularly and duly organized, that for a period from the 1st day of April, 1994,
to and including the date of this Certificate, the following have been, and now are, duly elected
or appointed, qualified and acting officers and members of the Board of County Commissioners
of the County:
Chairman and Commissioner: Bill Webster
Commissioners: Connie Harbert
George Baxter
Dale Hale
Barbara Kirkmeyer
That there is no litigation pending or threatened relating in any way to the validity
of the organization of the District, to the existence or boundaries thereof, to the rights of the
members of the Board of County Commissioners and officers thereof to hold their respective
positions or to the authorization, execution or delivery or the legality the Amended and Restated
J P2 se and Purchase Option Agreement, between the County, as lessee, and Norwest Investment
Services, Inc., as lessor (the "I ease") and that so far as is known, nothing exists to hinder or
prevent the District from executing the J Pace.
That no authority or proceedings for executing the Lease has or have been
repealed, revoked or rescinded.
SIGNED AND CERTIFIED this , 11 d D day COUN of // ��v 1994.
TY, CO /
t ;COLORADO
7,
,,,,,,,/,/,/,/,/,//,, ,?:,//_
(SEAL) County Clerk Ito the Board
04/22/94
al-5394
DNfi9873.1
4 r
Subscribed and sworn to before me this 4— day of fit,/, , 1994.
My commission expires: J. -- Q—c2/
Witness my hand and official seal.
(NOTARY) „te,
(SEAL) Notary Public
04/22/94
CN-5394
DN-69873.I
IRREVOCABLE LETTER OF INSTRUCTION
THIS IRREVOCABLE LEVER OF INSTRUCTION, dated as of May 4, 1994 (the
"Letter of Instruction"), is made and executed by Weld County, Colorado (the "County"), duly
organized and existing under the Colorado Constitution and the laws of the State of Colorado,
and the Weld County Finance Corporation, a Colorado nonprofit corporation (the
"Corporation"), to Colorado National Bank (the "Trustee"), a national banking association and
a member of the Federal Deposit Insurance Corporation.
The parties hereto recite and, in consideration of the mutual covenants and payment
referred to and contained herein, covenant and agree as follows:
1. The County has previously entered into that certain Human Resources Building
Lease Purchase Agreement, dated as of July 1, 1988 (the "Original Agreement"), between the
County and the Corporation.
There have been issued certain Certificates of Participation (the "Certificates"), in the
original aggregate principal amount of$1,800,000 pursuant to the Original Agreement and the
Mortgage and Indenture of Trust, dated as of July 1, 1988 (the "Indenture"), between the
Corporation and The Colorado National Bank of Denver. The Trustee is the successor in
interest to The Colorado National Bank of Denver.
2. The Certificates evidence assignments of proportionate interests in rights to
receive certain payments under the Original Agreement. The County is desirous of effecting a
refunding of the Certificates and, in order to provide funds sufficient to provide moneys to effect
such refunding, the Corporation will enter into that certain Amended and Restated Lease and
Purchase Option Agreement (the "Agreement"), between the Corporation and Norwest
Investment Services, Inc. ("Norwest").
3. The Certificates maturing on and after July 1, 1994 (the "Refunded Certificates")
are payable prior to their maturity in whole or in part at the option of the County on July 1,
1994, upon payment of the par amount to be redeemed, plus accrued interest, plus (as to
Certificates maturing after July 1, 1994) a premium of 1% of the principal amount so redeemed.
July 1, 1994 is referred to herein as the "Payment Date" for each of the Certificates.
4. The County has, in accordance with a Ordinance adopted by the Board of County
Commissioner of the County on May 2, 1994 (the "Ordinance"), approved the execution of the
Agreement for the purposes of providing funds to pay and discharge the Certificates.
04/29/94
CN-5394
DN-70826.1
5. In accordance with the Indenture, there is herewith deposited with the Trustee in
the Certificate Fund (as therein defined) the amount necessary to pay the Certificates on the
Payment Date. The Trustee shall pay from any funds so deposited such Certificates being
refunded hereby presented to the Trustee on the Payment Date.
At the time of execution of this Letter of Instruction, the Trustee will immediately invest
the funds on deposit in the Trust Fund in Federal Securities listed on Exhibit "A" attached hereto
and by this reference made a part hereof (the "Federal Securities") and shall fully secure any
cash balance in said account in the manner set forth herein.
6. The Trustee, by execution of receipt of a copy hereof, acknowledges the receipt
of the deposit of $910,820. The Trustee shall hold any cash deposit and the Federal Securities
acquired with the proceeds of such deposit and will collect and receive on behalf of the County
all payments of principal and interest on the Federal Securities, and without the requirement of
any action being taken by the County, will apply such payments to make punctual payments of
the Certificates as the same shall become due and payable to the holders thereof. After
provision for payment of the principal of all remaining outstanding Certificates, including the
interest accrued and premium thereon, the Trustee shall pay any Funds created under the
Indenture to the County.
7. The Trustee will not reinvest any cash or redeem and reinvest the proceeds of the
Federal Securities held in the Certificate Fund unless and until the County requests in writing
that such reinvestment be made.
8. If at any time it shall appear to the Trustee that the monies in the Certificate Fund
allocable for such use hereunder will be insufficient to make any payment of the principal of and
interest on the Certificates when due and payable to the holders thereof, the Trustee shall
immediately notify the County. The County thereupon shall forthwith deposit in the Certificate
Fund from funds on hand and legally available such additional funds as may be required to meet
fully the amount to become due and payable.
9. It is recognized that title to the Federal Securities and money held in the
Certificate Fund from time to time shall remain vested in the County but subject always to the
prior charge and lien thereon of the Indenture and the use thereof required to be made by the
provisions of the Indenture.
10. The Trustee shall not be liable or responsible for any loss resulting from any
investment made pursuant to the Indenture and in full compliance with the provisions hereof.
11. This Letter of Instruction is made by the County for the benefit of the holders of
the Certificates being refunded and is not revocable by the County, and the Federal Securities
04/29/94
CN-5394
DN-70826.I
2
and other funds held in the Certificate Fund and all income therefrom have been irrevocably
appropriated for the payment of the Certificates.
IN WITNESS WHEREOF, the County and the Corporation have caused this
instrument to be duly executed by their duly authorized officers as of the 4th day of May, 1994.
[SEAL] WELD COUNTY, COLORADO
/ / /
Attest: / � 7/'
/ :af � 'By: ' Alga}
}
County Clerk i,ltd(,She Board Chairman, Board of County Commissioners
[SEAL]
WELD COUNTY FINANCE CORPORATION
By: YdW4/L
Its: PeGS/ de /,
Received this day of May, 1994.
COLORADO NATIONAL BANK
By:
Authorized Officer
04/29/94
CN-5394
DN-70826.I
3
EXHIBIT A
DESCRIPTION OF U.S. TREASURY SECURITIES
U.S. Treasury Bills dated July 1, 1993, maturing June 30, 1994, in the
total principal amount of $926,000.00.
04/29/94
04-5394
DN-70826.1
A-1
O
AMENDED AND RESTATED LEASE AND PURCHASE OPTION AGREEMENT
Dated as of
May 4, 1994
NORWEST INVESTMENT SERVICES, INC.
as Lessor
WELD COUNTY, COLORADO
as Lessee
TABLE OF CONTENTS
PAGE
LEASING CLAUSE 1
TERM AND CONSIDERATION 2
ARTICLE I - DEFINITIONS, PROJECT DESCRIPTION 3
Section 1.01 Defined Terms Generally 3
Section 1.02 Additional Provisions as to Interpretation 6
ARTICLE II - REPRESENTATIONS 7
Section 2.01 Representations by the Lessee 7
Section 2.02 Representations by the Lessor 8
ARTICLE III - DEMISING CLAUSE 10
ARTICLE IV - RENT, PURCHASE PRICE, PREPAYMENT 11
Section 4.01 Rent 11
Section 4.02 Place of Payment of Rent 11
Section 4.03 Net Lease 11
Section 4.04 Interest on Unpaid Rent 12
Section 4.05 Prepayment of Rents 12
Section 4.06 Termination by Lessee upon Nonappropriation 12
ARTICLE V - USE, MAINTENANCE, CHARGES AND INSURANCE 14
Section 5.01 Use of Leased Property 14
Section 5.02 Quiet Enjoyment 14
Section 5.03 Maintenance of Leased Property by Lessee 14
Section 5.04 Alterations 14
Section 5.05 Liens 15
Section 5.06 Certification as to Leased Equipment and Alterations 15
Section 5.07 Removal of Leased Equipment 15
Section 5.08 Taxes 16
Section 5.09 Fire and Extended Coverage and Boiler and Machinery
Insurance 17
Section 5.10 Public Liability Insurance 17
Section 5.11 Worker's Compensation Coverage 17
Section 5.12 Additional Provisions Respecting Insurance 17
TABLE OF CONTENTS
(cont.)
PAGE
ARTICLE VI - DAMAGE, DESTRUCTION AND CONDEMNATION 19
Section 6.01 Damage and Destruction 19
Section 6.02 Condemnation 20
Section 6.03 Proceeds of Insurance or Condemnation of Lessee-Owned
Property 21
ARTICLE VII - SPECIAL COVENANTS 22
Section 7.01 No Warranty of Condition or Suitability; Indemnification 22
Section 7.02 Lessee to Maintain its Existence and Qualification: Conditions
Under Which Exceptions Permitted 22
Section 7.03 Granting Easements 22
Section 7.04 Reports 23
Section 7.05 Lessee to Maintain Machinery and Movable Equipment 23
Section 7.06 To Observe Laws, Ordinances and Regulations 23
Section 7.07 Further Assurances 23
Section 7.08 Participations 24
Section 7.09 Tax Exempt Status of Interest Payments 24
Section 7.10 Nonsubstitution 25
ARTICLE VIII - ASSIGNMENT, SUBLEASING AND SELLING 26
Section 8.01 Assignment and Subleasing by Lessee 26
Section 8.02 Assignment by the Lessor 26
Section 8.03 Restrictions on Transfer and Encumbrances of Leased Property
by the Lessee 26
ARTICLE IX - EVENTS OF DEFAULT AND REMEDIES 27
Section 9.01 Events of Default 27
Section 9.02 Remedies on Default 28
Section 9.03 Remedies Cumulative, Delay Not to Constitute Waiver 28
Section 9.04 Agreement to Pay Attorney's Fees and Expenses 29
Section 9.05 Advances 29
Section 9.06 Waiver of Appraisement, Valuation, Etc 29
ARTICLE X - OPTION TO PURCHASE 30
Section 10.01 Option to Purchase Leased Property 30
Section 10.02 Conveyance on Exercise of Option to Purchase 31
Section 10.03 Relative Position of this Article and Article IX 31
ii
TABLE OF CONTENTS
(cont.)
PAGE
ARTICLE XI - MISCELLANEOUS 32
Section 11.01 Surrender of Leased Property 32
Section 11.02 Amounts Remaining 32
Section 11.03 Notices 32
Section 11.04 Binding Effect 32
Section 11.05 Amendments, Changes and Modifications 32
Section 11.06 Counterparts 33
Section 11.07 Short Form Lease 33
Section 11.08 Severability 33
Section 11.09 Captions 33
SCHEDULE I 36
EXHIBIT A A-1
iii
AMENDED AND RESTATED LEASE AND
PURCHASE OPTION AGREEMENT
PARTIES
THIS AMENDED AND RESTATED LEASE AND PURCHASE OPTION
AGREEMENT, made as of this 4th day of May, 1994, between NORWEST INVESTMENT
SERVICES, INC., a Minnesota corporation having its principal office and address in
Minneapolis, Minnesota, as lessor (herein sometimes called the "Lessor"), and Weld County,
Colorado, a duly organized political subdivision of the State of Colorado having its main office
and place of business at 915 10th Street, Greeley, Colorado 80631 (herein sometimes called the
"Lessee").
WITNESSETH:
WHEREAS, the Lessee has heretofore arranged for the construction of the building (as
hereinafter more fully described, the "Project Building") on the property legally described in
Exhibit A hereto; and
WHEREAS, the Lessee executed a Human Resources Building Lease Purchase
Agreement, dated as July 14, 1988, between Weld County Finance Corporation, as lessor
thereunder (the "Corporation), and the Lessee, as Lessee thereunder, as heretofore amended (the
"Original Lease"); and
WHEREAS, Lessor has advanced funds sufficient to defease certificates of participation
in the Original Lease, in consideration for which Lessee has transferred or caused the
Corporation to transfer the Leased Property (as herein defined) to Lessor as successor to the
Corporation; and
WHEREAS, the Lessee desires to amend the Original Lease in its entirety pursuant to
the terms of this Amended and Restated Lease and Purchase Option Agreement, (the "Lease")
and to lease the Project Building and the real estate described in Exhibit A upon the terms and
conditions set forth in this Lease.
LEASING CLAUSE
The Lessor hereby leases to the Lessee, and the Lessee hereby leases from the Lessor,
the following (the "Leased Property"):
I. All of the Lessor's right, title and interest in and to the tract of land in
Weld County, Colorado, set forth in Exhibit A hereto attached (the "Land"); and
05394\9000\69918.1 1
II. The premises, buildings and improvements situated or to be situated
thereon, together with all items of fixtures, machinery, equipment, trade fixtures and
related property which is or will be situated on or in the Leased Property.
TERM AND CONSIDERATION
The Lease Term shall commence as of May 4, 1994. The initial Lease Term shall
terminate on December 31, 1994 (the "Initial Term"). The Lease Term may be continued,
solely at the option of the Lessee, to three additional terms (each term after the Initial Term
being referred to herein as a "Renewal Term") each of one-fiscal year duration (provided that
the final Renewal Term shall terminate on November 4, 1997). The terms and conditions during
any Renewal Term shall be the same as the terms and conditions during the Initial Term. Any
appropriation of amounts due hereunder shall be deemed a determination by Lessee to exercise
its option to renew the Lease for the next ensuing Renewal Term. Notwithstanding the
foregoing, the Lease may be terminated upon the occurrence of the earliest of the following
events:
(a) Termination hereof by the Lessee because of nonappropriation pursuant
to Section 4.06 hereof.
(b) The exercise by the Lessee of its option to purchase the Leased Property
pursuant to Article X hereof.
(c) The occurrence of an Event of Default and termination of this Lease by
the Lessor pursuant to Article IX hereof.
(d) The payment by the Lessee of all Rent and other amounts required to be
paid by the Lessee hereunder.
This Lease is granted and accepted upon the following representations, terms, covenants
and conditions, and the Lessor and the Lessee hereby agree to keep and perform all the terms,
covenants and conditions hereof on their part to be kept and performed, as follows:
[The balance of this page is intentionally left blank.]
05394\9000\69918.1 2
ARTICLE I
DEFINITIONS, PROJECT DESCRIPTION
Section 1.01 Defined Terms Generally. In addition to the words and terms elsewhere
defined in this Lease, the following words and terms as used in this Lease shall have the
following meanings unless the context or use indicates another or different meaning or intent and
such definitions shall be equally applicable to both the singular and plural forms of any of the
words and terms herein defined:
"Authorized Lessee Representative" means the person at any time designated to act on
behalf of the Lessee by written certification furnished to the Lessor, containing the specimen
signature of such person and signed on behalf of the Lessee by the Chairman of the Board of
County Commissioners of the Lessee. Such certification may designate an alternate or
alternates.
"Business Day" means any day other than a Saturday, a Sunday, a day on which banking
institutions or governmental offices are authorized by law to close for general banking purposes
in the State of Colorado or a day on which the Lessor or the Lessee is unable to open or be open
for reasons not related to its financial condition.
"Certification" means a certification in writing required or permitted by the provisions
of this Lease, signed and delivered to the Lessor or other proper person or persons.
"Certified Ordinance" means a copy of a resolution of the Governing Body, certified by
the County Clerk and Recorder to have been duly adopted by said Governing Body and to be
in full force and effect on the date of such certification.
"Default" means default by the Lessee in the performance or observance of any of the
covenants, agreements or conditions on its part contained in this Lease, exclusive of any notice
or period of grace required to constitute a default an "Event of Default" as described in Section
9.01 of the Lease.
"Event of Default" means an Event of Default described in Section 9.01 of the Lease
which has not been cured.
"Financial Newspaper" or "Financial Journal" means any newspaper or journal of general
circulation carrying financial news authorized to publish legal notices in Weld County, Colorado.
"Fiscal Year" means the Lessee's fiscal year, and shall initially mean the 12-month
period commencing on the first day of January in each year.
05394\9000\69918.1 3
"Hazardous Materials" means, without limitation, any flammable explosives, radioactive
materials, hazardous waste, hazardous or toxic substances or related materials defined in the
Comprehensive Environmental Response, Comprehensive and Liability Act of 1980, as amended
(42 U.S.C. § 96011 et. seq.) and The Hazardous Materials Transportation Act, as amended (40
U.S.C. § 18011 et. seq.) and the regulations adopted and publications promulgated pursuant
thereto, or any other federal, state, or environmental law, ordinance, rule, or regulation with
respect to such materials.
"Governing Body" means the Board of County Commissioners of Weld County,
Colorado.
"Independent Counsel" means any attorney duly admitted to practice law before the
highest court of any state and not an officer or a full time employee of the Lessor or the Lessee.
"Independent Engineer" means an architect or architectural firm or an engineer or
engineering firm qualified to practice the profession of engineering or architecture under the
laws of Colorado and who or which is not an officer or a full time employee of the Lessee.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as amended from
time to time.
"Land" means the parcel or parcels or other interests in real estate described in Exhibit
A hereto.
"Lease" means this Amended and Restated Lease and Purchase Option Agreement as
from time to time amended pursuant to Section 11.06 hereof.
"Lease Term" means period during which this Lease is in effect, as above specified under
"Term and Consideration".
"Leased Property" means the real estate, interests in real estate and other rights described
in the Leasing Clause above, Exhibit A hereto and any lease supplementing this Lease, together
with all additions thereto and substitutions therefor, less such real estate and interests in real
estate as may be released pursuant to Section 7.03 hereof or taken by the exercise of the power
of eminent domain as provided in Section 6.02 hereof.
"Lessee" means Weld County, Colorado, a duly organized political subdivision of the
State of Colorado and any successors to its functions.
"Lessor" means Norwest Investment Services, Inc., its successors and assigns.
05394\9000\69918.1 4
"Net Proceeds," when used with respect to any insurance or condemnation award, means
the gross proceeds from the insurance or condemnation award with respect to which that term
is used remaining after payment of all expenses (including attorney's fees and any extraordinary
expenses of the Lessor) incurred in the collection of such gross proceeds.
"Notice Address" of the Lessor or the Lessee means such person's address set forth in
Section 11.03 hereof or such further or different address as such person may designate by notice
to the others.
"Opinion of Counsel" means a written opinion of counsel (who need not be Independent
Counsel unless so specified) appointed by the Lessee or the Lessor.
"Payment Dates" means May 4 and November 4 of each commencing on November 4,
1994.
"Permitted Encumbrances" means, as of any particular time, (i) liens for ad valorem
taxes and special assessments not then delinquent, (ii) this Lease, (iii) the Lessor's interest in
the Leased Property, (iv) utility, access and other easements and rights-of-way, mineral rights,
restrictions and exceptions that an Independent Engineer certifies will not interfere with or
impair the use of or operations being conducted in the Project Building or elsewhere on the
Land, and (v) 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 Leased
Property and as do not in the aggregate, in the opinion of Independent Counsel, materially
impair the property affected thereby for the purposes for which it was acquired or is held by the
Lessee.
"Project" means the real estate described in Exhibit A hereto and all County buildings
constructed thereon, with necessary equipment, appurtenance and site improvements.
"Project Building" means the County building and other improvements located or to be
located on the land described in Exhibit A hereto.
"Qualified Investments" means obligations authorized for investment of funds of the
Lessee under Colorado Statutes, or any successor provision at the time in effect.
"Rent" means rent payable to the Lessor under Section 4.01 of this Lease, including
amounts designated as principal and interest.
"Servicer" means Norwest Investment Services, Inc., and its successors as Servicer
hereunder.
"Termination Value" shall have the meaning provided in Section 10.01 hereof.
05394\9000\69918.1 5
Section 1.02 Additional Provisions as to Interpretation.
This Lease shall be interpreted and enforced in accordance with and governed by the laws
of the State of Colorado.
The words "herein" and "hereof" and words of similar import, without reference to any
particular section or subdivision, refer to this Lease as a whole rather than to any particular
section or subdivision hereof.
References herein to any particular section or subdivision hereof are to the section or
subdivision of this instrument as originally executed.
[The balance of this page is intentionally left blank.]
05394\9000\69918.1 6
ARTICLE H
REPRESENTATIONS
Section 2.01 Representations by the Lessee. The Lessee makes the following
representations:
(a) The Lessee is a duly organized and existing political subdivision of the
State of Colorado.
(b) The execution and delivery of this Lease and the performance of all
covenants and agreements of the Lessee contained in this Lease are authorized by the
Constitution and laws of the State of Colorado and the execution, delivery and
performance of this Lease by the Lessee are authorized and have been duly authorized
by the Ordinance.
(c) The Lessee has not made, done, executed or suffered and warrants that it
will not make, do, execute or suffer any act or thing whereby its leasehold interest in the
Leased Property may be impaired or charged or encumbered other than as provided
herein.
(d) There is no litigation pending or, to the best of its knowledge, threatened
against the Lessee relating to the acquisition, installation, construction or financing of the
Project or to this Lease or questioning the organization, powers or authority of the
Lessee.
(e) The execution and delivery of this Lease and the consummation of the
transactions herein contemplated will not materially conflict with or constitute a material
breach of or default under any bond, debenture, note or other evidence of indebtedness
or any contract, loan agreement or lease to which the Lessee is a party or by which it
is bound, or result in the creation or imposition of any lien, charge or encumbrance of
any nature upon any of the property or assets of the Lessee contrary to the terms of any
instrument or agreement.
(f) The Lessee warrants that the Leased Property will not be used in a manner
that causes this Lease or any interest herein to be deemed to be a "private activity bond"
within the meaning of Section 141 of the Internal Revenue Code.
05394\9000\69918.1 7
(g) The Lessee does not rely on any warranty of the Lessor, either express or
implied, as to the tide or condition of the Leased Property or that it will be suitable to
the Lessee's needs and recognizes that the Lessor is not obligated to operate or maintain
the Leased Property or to expend any funds thereon.
(h) The Lessee will maintain Leased Property at all times free of Hazardous
Material or other Material the removal of which is required or the maintenance of which
is prohibited or penalized under any Federal, State, or local law and the Lessee warrants
and represents that the Leased Property is not affected by any such materials as of the
date hereof. The Lessee agrees promptly:
(i) to transmit to the Lessor copies of any governmental
citations, orders or notices received with respect to Hazardous Materials which
may result in a penalty, liability, or cost greater than $1,000;
(ii) to observe and comply with any and all applicable laws,
ordinances, rules, regulations, licensing requirements or conditions relating to the
use, maintenance or disposal of Hazardous Materials and all orders or directives
from any official, court, or governmental agency of competent jurisdiction
relating to the use or maintenance or requiring the removal, treatment,
containment, or other disposal of such Hazardous Material;
(iii) to pay or otherwise dispose of any lawfully due and owing
fine, charge, or imposition relating thereto which, if unpaid, would constitute a
lien upon Leased Property or any part thereof.
Section 2.02 Representations by the Lessor. The Lessor makes the following
representations:
(a) The Lessor is a corporation duly organized and validly existing and in
good standing under the laws of Minnesota and Colorado and is authorized to transact
business in the states of Minnesota and Colorado.
(b) Neither the execution and delivery of this Lease nor the covenants.
agreements or obligations of the Lessor under this Lease constitute a material default (or
an event which, with notice or the lapse of time, or both, would constitute a material
default) under any contract, agreement or other instrument or document to which the
Lessor is a party or by which the Lessor or its property is bound.
(c) The Lessor possesses all requisite authority, power, licenses, permits and
franchises to conduct all business contemplated in this Lease to be conducted by it, to
execute and deliver this Lease and to observe and perform its covenants, agreements and
obligations under this Lease.
05394\9000\69918.1 8
(d) The execution and delivery of this Lease by the Lessor and the observance
and performance by the Lessor of its covenants, agreements and obligations under this
Lease do not require the consent or approval of any governmental authority which has
not been obtained.
(e) The Lessor has duly authorized by proper action its execution, delivery,
observance and performance of this Lease.
(f) Assuming the due authorization, execution and delivery thereof by the
Lessee, this Lease and all instruments and documents contemplated in this Lease which
are executed and delivered by the Lessor constitute and will constitute legal, valid,
binding and enforceable obligations or representations, as the case may be, of the Lessor,
except as the enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the rights of creditors
generally and except to the extent that the enforceability thereof may be affected by
general legal rules of equity.
(g) Neither this Lease nor the covenants, agreements or obligations of the
Lessor under this Lease contravene the Lessor's articles of incorporation or bylaws, or
violate in any material respect any statute, rule, regulation or other law, or any court or
administrative order, applicable to the Lessor.
[The balance of this page is intentionally left blank.]
05394\9000\69918.1 9
ARTICLE III
DEMISING CLAUSE
The Lessor demises and leases to the Lessee, and the Lessee leases from the Lessor, the
Leased Property, subject only to Permitted Encumbrances herein described, in accordance with
the provisions of this Lease.
[The balance of this page is intentionally left blank.]
05394\9000\69918.1 10
ARTICLE IV
RENT, PURCHASE PRICE, PREPAYMENT
Section 4.01 Rent. During the Lease Term, the Lessee agrees to pay and shall pay as
Rent for the use of the Leased Property:
(a) Not later than one day before each Payment Date, the Lessee shall pay to
the Servicer in immediately available funds the amounts set forth as the Total Scheduled
Payment in Schedule I hereto on the dates therein set forth, said amounts to represent
repayment of principal and payment of interest as designated in said Schedule I; and
(b) The Lessee shall pay such amounts, if any, as may become payable under
Section 10.01, 6.01 or 6.02 hereof; and
(c) The Lessee shall pay into any fund designated by the Servicer or to the
United States moneys in the amount determined by the Lessor to be necessary to comply
with the Lessee's obligations under Section 7.09(c) hereof;
Except as provided in Section 4.06 hereof and except to the extent the Rent may be
abated or reduced under Section 4.06 or Section 5.07 hereof.
Section 4.02 Place of Payment of Rent. The parties acknowledge and agree that the
Rent provided for in Section 4.01 shall be paid to the Servicer for deposit in the accounts held
by the Servicer.
Section 4.03 Net Lease. This is a net lease, and the Lessor shall not be required to
make any expenditures whatsoever in connection with this Lease or the Leased Property (except
as otherwise provided in this Lease to make any repairs or to maintain the Leased Property).
The obligations of the Lessee to make the payments of Rent required in Section 4.01 hereof and
to perform and observe the other agreements on its part contained herein shall be absolute and
unconditional, except as provided in Section 4.06 hereof; and the Lessee (i) will not, subject to
the provisions of Sections 4.05 and 4.06 hereof, suspend or discontinue any payments of Rent
provided for in Section 4.01 hereof, and shall not withhold any payment of Rent or other
payment required hereunder pending resolution of any dispute or assert any right of set-off or
counterclaim against its obligation to make such payment of Rent or other payments required
under this Lease; (ii) will perform and observe all of its other agreements contained in this
Lease; and (iii) except as provided in Sections 4.06 and 10.01 hereof or under TERM AND
CONSIDERATION, will not terminate the Lease Term for any cause including, without limiting
the generality of each of the foregoing, any acts or circumstances that may constitute failure of
consideration, destruction of or damage to the Leased Property, frustration of purpose, any
change in the tax or other laws or administrative rulings of or administrative actions by the
05394\9000\69918.1 11
United States of America or the State of Colorado or any political subdivision of either, or any
failure of the Lessor to perform and observe any agreement, whether express or implied, or any
duty, liability or obligation arising out of or connected with this Lease. Nothing contained in
this Section shall be construed to release the Lessor from the performance of any of the
agreements on its part contained in this Lease; and in the event the Lessor should fail to perform
any such agreement on its part, the Lessee may institute such action against the Lessor as the
Lessee may deem necessary to compel the performance of such agreement or to recover damages
therefor, so long as no judgment or court order sought or obtained in such action shall result in
the termination hereof or interfere with the prompt and full payment of the Rent as contemplated
hereby.
Section 4.04 Interest on Unpaid Rent. In the event the Lessee shall fail to make any
payment of Rent required to be paid under Section 4.01, the item or installment so in default
shall continue as an obligation of the Lessee until the amount in default shall have been fully
paid, and the Lessee agrees to pay interest on any Rent in default at a rate of interest equal to
one and one-half percent (1.50%) per month or part of a month, pursuant to Colorado Statutes.
Such payment shall be deposited in the Lease Payment Fund as a credit against the payment of
Rent next coming due.
Section 4.05 Prepayment of Rents. There is expressly reserved to the Lessee the right,
and the Lessee is authorized and permitted, at any time it may choose, to prepay the Rent
payable under Section 4.01 hereof as described in Section 10.01 hereof, and the Lessor agrees
to accept such prepayment of Rent when the same is tendered by the Lessee.
Whenever, in this Lease, reference is made to prepayment of all Rent or payment of an
amount sufficient to prepay all Rent to become due, the amount required to effect such
prepayment shall be deemed to be the Total Scheduled Payment plus the Termination Value set
forth in Schedule I hereto with respect to the next succeeding termination date.
Section 4.06 Termination by Lessee upon Nonappropriation. The Lessee shall have the
right to terminate this Lease, in whole but not in part, at the end of any Fiscal Year of the
Lessee, in the manner and subject to the terms specified in this Section and Section 7.10, in the
sole event that the Governing Body fails to appropriate money sufficient for the continued
performance of this Lease by the Lessee after the end of such Fiscal Year. The Lessee may
effect such termination by giving the Lessor a written notice of termination as provided in this
Section and by paying to the Lessor any Rent and other amounts which are due and have not
been paid at or before the end of its then current Fiscal Year. In the event of termination of this
Lease as provided in this Section, the Lessee shall deliver possession of the Leased Property to
the Lessor and shall convey to the Lessor or release its interest in the Leased Property within
ten (10) days after the termination of this Lease.
05394\9000\69918.1 12
Upon termination of this Lease as provided in this Section or under TERM AND
CONSIDERATION, the Lessee shall not be responsible for the payment of any Rent coming due
with respect to succeeding Fiscal Years, but if the Lessee has not delivered possession of the
Leased Property to the Lessor and conveyed to the Lessor or released its interest in the Leased
Property within ten (10) days after the termination of this Lease, the termination shall
nevertheless be effective, but the Lessee shall be responsible for the payment of damages in an
amount equal to the amount of the Rent which would be collected had the Lease been extended,
attributable to the number of days after such ten (10) day period during which the Lessee fails
to so deliver possession and release its interest, and for any other loss suffered by the Lessor
as a result of the Lessee's failure to take such actions as required. The Lessee shall provide to
Lessor a notice of any affirmative action by the Board of County Commissioners to not
appreciate funds or to otherwise determine to not renew this Lease within ten (10) days of the
taking of such action. Failure of Lessee to provide such copies or notice or failure to otherwise
notify Lessor of any action or failure of action shall not affect any termination provided for
herein.
[The balance of this page is intentionally left blank.]
05394\9000\69918.1 13
ARTICLE V
USE, MAINTENANCE, CHARGES AND INSURANCE
Section 5.01 Use of Leased Property. The Lessee covenants that throughout the term
hereof, it will use and operate the Leased Property as public property in furtherance of its
essential governmental functions, as further provided herein, and in compliance with all laws,
regulations and ordinances applicable thereto.
Section 5.02 Quiet Enjoyment. The Lessee acknowledges that it is now in possession
of the Leased Property. The Lessor agrees that the Lessee upon paying the Rent and performing
the covenants herein agreed by it to be performed and any subtenant claiming under the Lessee
shall and may peaceably and quietly have, hold, and enjoy the said Leased Property for the term
specified. The Lessor or its agents shall have the right at all reasonable times during the Lease
Term to enter the Leased Property for the purpose of examining or inspecting the Leased
Property. Nothing in this Section shall imply any duty upon the part of the Lessor to examine
the Leased Property or to do or pay for any work which under any provision of this Lease the
Lessee is required to perform, and the performance thereof by the Lessor shall not constitute a
waiver of the Lessee's default in failing to perform the same.
Section 5.03 Maintenance of Leased Property by Lessee. The Lessee agrees that during
the Lease Term it will keep the Leased Property, including all appurtenances thereto, in good
repair and good operating condition at its own cost, and upon the expiration or termination of
the Lease Term it will, unless it shall have elected to exercise its option to purchase the Leased
Property granted hereunder, surrender the Leased Property to the Lessor in as good condition
as prevailed at the time it was put in full possession thereof, loss by fire or other casualty
covered by insurance, ordinary wear and tear, obsolescence and acts of God excepted, subject
to the provisions of Section 5.04 of this Lease.
Section 5.04 Alterations. The Lessee shall have the privilege of remodeling the Project
Building or making alterations, additions, modifications and improvements to the Leased
Property from time to time as the Lessee, in its discretion, may deem to be desirable for its uses
and purposes, provided that such alterations, additions, modifications and improvements shall
not adversely affect the structural integrity or value of the Project Building and shall be located
within the boundaries of the Land. The cost of such alterations, additions, modifications and
improvements shall be paid by the Lessee and the same shall be the property of the Lessor and
be included under the terms of this Lease as and shall become part of the Leased Property.
Notwithstanding the preceding paragraph of this Section 5.04, the Lessee may (a)
construct facilities owned by the Lessee adjacent to or adjoining the Project Building and provide
access to such facilities through the walls of the Project Building, provided that the Lessee shall,
at the expense of the Lessee, restore the Project Building to a complete architectural unit upon
05394\9000\69918.1 14
termination of this Lease unless the Lessee exercises its option to purchase the Leased Property;
and (b) the Lessee may permit the construction of skyways or other public pedestrian walkways
owned by the Lessee or another public or private entity and connected to the Project Building.
Section 5.05 Liens. The Lessee will not, directly or indirectly, create, incur, assume
or suffer to exist any mortgage, pledge, charge, lien, encumbrance or claim, except the
respective rights of the Lessor and the Lessee as herein provided and Permitted Encumbrances,
to be established or remain on or against the Leased Property, including any mechanics' liens
for labor or materials furnished in connection with the acquisition, installation or construction
of the Project or with any remodeling, additions, modifications, improvements, repairs, renewals
or replacements; provided, that if the Lessee shall first notify the Lessor of its intention so to
do, the Lessee may in good faith contest any mechanics' or other liens filed or established
against the Leased Property, and in such event may permit the items so contested to remain
undischarged and unsatisfied during the period of such contest and any appeal therefrom unless
the Lessor shall notify the Lessee that, in the opinion of Independent Counsel, by nonpayment
of any such items the rights or interest of the Lessor will be materially endangered or the Leased
Property or any part thereof will be subject to loss or forfeiture, in which event the Lessee shall
promptly pay and cause to be satisfied and discharged all such unpaid items. The Lessor will
cooperate promptly and fully with the Lessee in any such contest. Except as expressly provided
in this Section, the Lessee will promptly, at its own expense, take such action as may be
necessary duly to discharge or remove any such mortgage, pledge, charge, lien, encumbrance
or claim if the same shall arise at any time and shall reimburse the Lessor for any expense
incurred by the Lessor in order to discharge or remove any such mortgage, pledge, charge, lien,
encumbrances or claim. Nothing herein shall be deemed to require Lessee to deal with statutory
claims other than in the manner prescribed by statute.
Section 5.06 Certification as to Leased Equipment and Alterations. The Lessee agrees
that it will file with the Lessor, from time to time upon request of the Lessor, a Certification
of the Authorized Lessee Representative setting forth the description on any machinery, fixtures,
equipment or related property which has become a part of the Leased Property, and if requested
by the Lessor, a description of any additions, remodeling, modifications or improvements to the
Leased Premises which have been made during the Fiscal Year next preceding the filing of such
Certification.
Section 5.07 Removal of Leased Equipment. The Lessor shall not be under any
obligation to renew, repair or replace any inadequate, obsolete, worn out, unsuitable, undesirable
or unnecessary equipment constituting part of the Leased Property. The Lessee shall have the
privilege from time to time of substituting for Project equipment machinery, equipment and
related property, provided that such property so substituted shall not impair the operating unity
or productive capacity of the Leased Property. Any such substituted property shall become the
property of the Lessor and be included under the terms of this Lease, and the replaced Leased
Property shall become the property of the Lessee.
05394\9000\69918.1 15
The Lessee shall also have the privilege of removing any equipment constituting part of
the Leased Property, without substitution therefor; provided, that the Lessee delivers to the
Lessor (i) a Certification signed by the Authorized Lessee Representative setting forth the cost
and value or, if sold or to be sold, the cost and net proceeds of sale or anticipated net proceeds
of said equipment and stating that the removal of such equipment will not impair the operating
unity, productive capacity or character of the Project Facilities, and (ii) payment to the Lessor
of a sum equal to the net proceeds of any such sale or the then depreciated book value of any
such equipment, whichever is greater, to be applied as provided in this Section. The Lessor may
request such other Certifications and showings as it may deem reasonable under the
circumstances in connection with the removal of equipment.
The Lessee may also at any time while it is not in default under this Lease remove from
the Leased Premises any machinery or equipment purchased and installed by it pursuant to this
Section 5.07.
In the event any removal of machinery or equipment under this Section causes damage
to existing buildings or structures, the Lessee shall restore the same or repair such damage at
its sole expense.
The Lessor agrees to execute and deliver such documents (if any) as the Lessee may
properly request in connection with any action taken by the Lessee in conformity with this
Section 5.07. The removal from the Leased Premises of any equipment pursuant to the
provisions of this Section shall not entitle the Lessee to any abatement or diminution of the Rent
payable under Section 4.01 hereof, except that any amounts payable to the Lessor by reason of
removal of equipment shall be deposited with the Servicer and credited against subsequent
payments of Rent to become due under the provisions of Section 4.01 hereof. The Lessee will
not remove, or permit the removal of, any equipment owned by the Lessor from the Leased
Premises except in accordance with the provisions of this Section.
Section 5.08 Taxes. Other Governmental Charges and Other Charges. The Lessee will
pay, as the same respectively become due, all taxes, special assessments, and governmental
charges of any kind whatsoever that may at any time be lawfully assessed or levied against or
with respect to the Leased Property or any furnishings, equipment or other property installed or
brought by the Lessee therein or thereon, including sales, use and other excise taxes, and all
claims for rent, royalties, labor, materials, supplies, utilities and other charges incurred in the
operation, maintenance, use, occupancy and upkeep of the Leased Property.
The Lessee may, at its expense and in its own name and behalf or in the name and behalf
of the Lessor in good faith contest any such taxes, payments in lieu of taxes, assessments and
other charges and, in the event of any such contest, may permit the taxes, payments in lieu of
taxes, assessments or other charges so contested to remain unpaid during the period of such
contest and any appeal therefrom unless the Lessor shall notify the Lessee that, in the opinion
of Independent Counsel, by nonpayment of any such items the rights or interest of the Lessor
in the Leased Property will be materially endangered or the Leased Property or any part thereof
05394\9000\69918.1 16
will be subject to loss or forfeiture, in which event such taxes, payments in lieu of taxes,
assessments or charges shall be paid promptly. The Lessor will cooperate with the Lessee in
permitting the Lessee to conduct any such contest.
Section 5.09 Fire and Extended Coverage and Boiler and Machinery Insurance. So long
as this Lease is in effect, the Lessee shall obtain and at all such times maintain in force fire and
extended coverage insurance (including coverage against loss or damage by fire, wind, lightning,
extended coverage perils, vandalism and malicious mischief) on the Project Building and all
structures, improvements, fixtures and equipment constituting the Leased Property, other than
building foundations and excavations, on a replacement cost basis to the extent of the full
insurable value of the property to be so insured (without deduction for depreciation,
architectural, engineering, legal or administrative fees), together with broad form boiler and
machinery insurance on all equipment and objects customarily covered by such insurance and
providing for full repair and replacement cost coverage. Any such policy referred to in this
Section 5.09 may provide that the policy does not cover the first $25,000 of loss, with the result
that the Lessee is its own insurer to that extent.
As an alternative to the above, the Lessee may self insure against damage to or
destruction of the Leased Property in the same manner as the Lessee insures itself against
damage to or destruction of other property of the Lessee, or the Lessee may insure such property
under a blanket insurance policy or policies which cover not only such property but other
properties of the Lessee, which policy or policies may contain such reasonable deductible and
coinsurance provisions as the Lessee may deem necessary or appropriate and prudent.
Section 5.10 Public Liability Insurance. The Lessee agrees that it will carry public
liability insurance with reference to the Leased Property in the amounts required by law, but in
no event with a policy limit of less than $1 million. The Lessor shall be named as an additional
insured under any such policies. The insurance by this Section may be provided by actuarially
sound self insurance or by a blanket insurance policy or policies.
Section 5.11 Worker's Compensation Coverage. During the Construction Period and
throughout the Lease Term, the Lessee shall maintain Worker's Compensation Coverage or
cause the same to be maintained to the extent required by law. The insurance required by this
Section may be provided by self-insurance.
Section 5.12 Additional Provisions Respecting Insurance. Any insurance policy issued
pursuant to Article V hereof shall be so written or endorsed as to make losses, if any, payable
to the Lessor and the Lessee as their respective interests may appear. All such policies shall be
obtained from companies authorized to conduct insurance business in the State of Colorado.
Each insurance policy provided for in Sections 5.09, 5.10 and 5.11 hereof shall contain a
provision to the effect that the insurance company shall not cancel the same without first giving
written notice thereof to the Lessor at least 30 days in advance of such cancellation, and the
Lessee shall deliver to the Lessor duplicate copies of certificates of insurance pertaining to each
05394\9000\69918.1 17
such policy of insurance procured by the Lessee and agrees to keep such duplicate copies of
certificates up to date.
[The balance of this page is intentionally left blank.]
05394\9000\69918.1 18
ARTICLE VI
DAMAGE, DESTRUCTION AND CONDEMNATION
Section 6.01 Damage and Destruction. If the Leased Property shall be damaged or
partially or totally destroyed by fire, flood, windstorm or other casualty at any time during the
Lease Term, there shall be no abatement or reduction in the rent payable by the Lessee under
this Lease, and, unless the Lessee shall have elected to exercise its option to purchase pursuant
to the provisions of Article X of this Lease, (i) the Lessee will proceed to repair, rebuild or
restore the property damaged or destroyed with changes, deletions, alterations and modifications
(including the substitution and addition of other property and removal of existing property),
whether or not such changes, deletions, alterations and modifications result in changes in the
character of the operations which may be conducted or in the productive capacity of the Leased
Property, as may be desired by the Lessee, and (ii) the Lessor will apply so much as may be
necessary of the Net Proceeds of insurance received by the Lessor to payment of the cost of any
such repair, rebuilding or restoration, either on completion thereof or as the work progresses,
upon delivery to the Lessor of the following: (I) a Certification signed by the Authorized Lessee
Representative setting forth the costs theretofore incurred or paid and that the Lessee has the
additional funds required to complete the restoration, if any, and (II) a contract or contracts,
including plans and specifications and other contract documents necessary and usual for the work
involved, for the furnishing of all work and materials required for the restoration, and, if
reasonably requested by the Lessor, a payment and performance bond issued by a corporate
surety or, alternatively, a Certification of an Authorized Lessee Representative that the
restoration has been substantially completed and all costs thereof have been paid, with the
exception of any amounts reasonably withheld to insure completion. In the event said Net
Proceeds are not sufficient to pay in full the costs of any such repair, rebuilding or restoration,
the Lessee will nonetheless complete the work thereof and will provide for payment of the
portion of the cost thereof in excess of the amount of said Net Proceeds made available unless
the Authorized Lessee Representative shall certify to the Lessor that the Lessee elects to prepay
the Basic Rent hereunder, pursuant to Section 10.01 hereof, and that the Lessee has available
and shall apply funds for such purpose. The Lessee shall not, by reason of the payment of any
excess costs over the available Net Proceeds, be entitled to any reimbursement from the Lessor
or any diminution or abatement of the Basic Rent or Additional Rent payable under this Lease.
Any amounts held by the Lessor and remaining at the completion of, and payment for,
any such repair, rebuilding or restoration, shall be deposited with the Servicer and applied to
payments of Rent due or to become due under Section 4.01 of this Lease.
In the event the Lessee certifies in the manner above described and elects not to repair,
rebuild or restore the damaged or destroyed property as above provided, all of the Rent due and
to become due hereunder shall be prepaid pursuant to Section 10.01 hereof and the Net Proceeds
shall be applied for that purpose. If the Net Proceeds of insurance shall be insufficient, together
05394\9000\69918.1 19
with the amount then held by the Lessor or the Trustee for the account of the Lessee and
available to prepay all of the unpaid Rent (including principal, interest and expenses of
prepayment), the Lessee shall pay such deficiency as Rent prior to the prepayment of all Rent
at the earliest possible date. If all Rent has been fully paid or prepaid, and all other payments
required hereunder have been made or provided for, all Net Proceeds will be paid to the Lessee.
Section 6.02 Condemnation. Unless the Lessee shall exercise its option to purchase
pursuant to the provisions of Article X hereof, if at any time during the Lease Term title to all
or substantially all of the Leased Property shall be taken in any proceeding (hereinafter referred
to as a "Proceeding") involving exercise of the right of eminent domain, this Lease (except as
to the following provisions of this Section 6.02 and the provisions of Section 7.09 (c) hereof)
and the Lease Term, and all right, title and interest of the Lessee in the Leased Property, shall
come to an end at midnight of the 31st day after vesting of title pursuant to the Proceeding, and
the Lessor shall be entitled to receive the Net Proceeds of the award, which the Lessee hereby
assigns to the Lessor. If the Net Proceeds of the award available to the Lessor shall be
insufficient, together with any amount then held by the Lessor for the account of the Lessee, the
Lessee shall pay such deficiency as Rent prior to the prepayment date. If the available Net
Proceeds of the award, together with the amount then held by the Lessor or the Trustee for the
account of the Lessee, is in excess of the amount required to prepay all Rent as aforesaid, such
excess shall be paid in full to the Lessee. The available Net Proceeds of the award received by
the Lessor (less any excess amount paid to the Lessee, as hereinbefore provided), together with
any additional amounts paid by reason of insufficiency and with any amounts then held by the
Lessor or the Trustee for the account of the Lessee, shall be applied to the prepayment of all
Rent at the earliest possible date. For purposes of this Section, "all or substantially all of the
Leased Property" shall be deemed to have been taken if the taking under any Proceeding shall
involve such an area, or such impairment of access to the Leased Property over public highways,
that the Lessee cannot in its opinion, evidenced by written notice to the Lessor, given within 30
days after the commencement of the Proceeding, reasonably operate its business in the remainder
of the Leased Property for a period of at least six (6) months substantially in the same manner
and as satisfactorily as before.
If, during the Lease Term, title to less than all or substantially all of the Leased Property
shall be taken in any Proceeding, neither the terms of this Lease nor any of the obligations of
either party under this Lease shall be reduced or affected in any way, and the Lessee shall
promptly repair, rebuild or restore the Leased Property to the extent necessary to render the
Leased Property a complete architectural unit, but if the portion of the Leased Property
remaining after such taking is in itself a complete architectural unit, the Lessee need make only
such repair, rebuilding or reconstruction as it may in its discretion deem necessary for its
operation of the Leased Property. The Lessor will cause the Net Proceeds received by it from
any award made in such Proceeding to be applied to any such repair, rebuilding or restoration,
and if the Net Proceeds shall be insufficient to pay the cost of any such repair, rebuilding or
restoration, the Lessee shall pay the deficiency. Any balance of the available Net Proceeds of
the award remaining after paying such cost shall be deposited with the Servicer and applied to
05394\9000\69918.1 20
payments of Rent due or to become due under Section 4.01 hereof. If all Rent has been fully
paid, all available Net Proceeds will be paid to the Lessee.
The Lessor and the Lessee shall cooperate fully in the handling and conduct of any
prospective or pending Proceeding with respect to the Leased Property or any part thereof, and
the Lessor will join with the Lessee to the extent it may lawfully do so and at the Lessee's
expense, in maintaining or permitting the Lessee to maintain a defense or contest of the amount
of the award in any such Proceeding. In no event will the Lessor voluntarily settle, or consent
to the settlement of, any prospective or pending Proceeding with respect to the Leased Property
or any part thereof without the written consent of the Lessee.
Section 6.03 Proceeds of Insurance or Condemnation of Lessee-Owned Property. The
Lessee shall also be entitled to the Net Proceeds of any condemnation award or portion thereof
made for damages to or taking of its own property or for damages on account of the taking of
or interference with the Lessee's right to possession, use of or occupancy of the Leased
Property. Similarly, the Lessee shall also be entitled to the Net Proceeds of any fire and
extended coverage or similar insurance on its own property not constituting part of the Leased
Property.
[The balance of this page is intentionally left blank]
05394\9000\69918.1 21
•
ARTICLE VII
SPECIAL COVENANTS
Section 7.01 No Warranty of Condition or Suitability; Indemnification. The Lessor does
not make any warranty, either express or implied, as to the design or capacity of the Leased
Property; as to the suitability for operation of the Leased Property; or as to the condition of the
Leased Property or that it will be suitable for the Lessee's purposes or needs. The Lessee
assumes all risks and liabilities, whether or not covered by insurance, for loss or damage to the
Leased Property and for injury to or death of any person or damage to any property, whether
such injury or death be with respect to agents or employees of the Lessee or to third parties, and
whether such property damage be to the Lessee's property or the property of others, which is
proximately caused by the negligent conduct of the Lessee, its officers, employees and agents.
The Lessee hereby assumes responsibility for and agrees to reimburse the Lessor for all
liabilities, obligation, losses, damages, penalties, claims, actions, costs and expenses (including
reasonable attorney's fees) of whatever kind and nature, imposed on, incurred by or asserted
against the Lessor that in any way relate to or arise out of a claim, suit or proceeding based in
whole or in part upon the negligent conduct of the Lessee, its officers, employees and agents,
to the maximum extent permitted by law.
Section 7.02 Lessee to Maintain its Existence and Qualification: Conditions Under
Which Exceptions Permitted. The Lessee agrees that during the Lease Term it will maintain its
existence or assure the assumption of its obligations under this Lease by any public body
succeeding to its powers.
Section 7.03 Granting Easements. If the Lessee is not then in default, the Lessor at the
request of the Lessee from time to time shall grant easements, licenses, rights-of-way (including
the dedication of public highways) and other rights or privileges in the nature of easements with
respect to the Land, or may release existing easements, licenses, rights-of-way and other rights
or privileges with or without consideration, and the Lessor agrees that it shall execute and
deliver any instrument necessary or appropriate to grant or release any such easement, licenses,
right-of-way or other right or privilege upon receipt of: (a) a copy of the instrument of grant or
release, and (b) a written application signed by the Authorized Lessee Representative requesting
such instrument, and certifying that (i) such grant or release is not detrimental to the proper use
or operation of the Leased Property, and (ii) such grant or release will not impair the character
or productive capacity of the Leased Property. The Lessor will not grant or release any
easements, licenses, rights-of-way or other rights or privileges in the nature of easements with
respect to the Land, without the prior written consent of the Lessee. No release or grant
effected under the provisions of this Section shall entitle the Lessee to any abatement of the Rent
05394\9000\69918.1 22
payable under Section 4.01 hereof, except that any moneys payable to the Lessor pursuant to this
Section shall be paid to the Servicer and credited against subsequent Basic Rent due or to
become due hereunder.
Section 7.04 Reports. The Lessee agrees to obtain and to furnish to the Lessor such
reports concerning the repair, maintenance and condition of the Leased Property as the Lessor
may from time to time reasonably request.
Section 7.05 Lessee to Maintain Machinery and Movable Equipment. The Lessee agrees
that during the Lease Term it will provide and maintain all machinery, personal property and
movable equipment necessary in the judgment of the Lessee to permit the full use, operation and
occupancy of the Leased Property, and the Lessor shall be under no obligation to provide or
maintain any such equipment. In addition to any equipment installed as part of the Project, the
Lessee may from time to time, for that purpose and at its own expense, install additional
movable personal property, equipments and machinery in the Project Building or on the Land.
Nothing contained in the preceding provisions of this Section shall prevent the Lessee from
purchasing, after delivery hereof, movable personal property, equipment, furniture or fixtures,
notwithstanding that such movable personal property may be subject to a purchase money
security interest, as security for the unpaid portion of the purchase price thereof.
Section 7.06 To Observe Laws, Ordinances and Regulations. The Lessee will observe
all applicable laws, regulations, ordinances and orders of the United States, the State of
Colorado and agencies and political subdivisions thereof and each department or agency thereof,
applicable to this Lease and the Leased Property. The Lessee shall have the right to contest by
appropriate procedures the adoption, validity or applicability of any laws, regulations, ordinances
and orders referred to in this Section and to delay compliance therewith, without violating the
provisions of this Section, if (a) the Lessor shall consent to such delay in writing or (b) a court
of competent jurisdiction shall so order or determine or (c) in the opinion of Independent
Counsel furnished to the Lessor, the procedures taken by the Lessee to contest the validity or
applicability of any such law, regulation, ordinance or order are appropriate and have the effect
of staying the finality and enforceability thereof against the Lessee.
Section 7.07 Further Assurances. The Lessee will execute or cause to be executed any
and all further instruments that may reasonably be requested by the Lessor and be authorized
by law to evidence the transaction contemplated by this Lease and the Lessor's rights provided
or intended to be provided hereby, or to vest in the Lessor or any participant with or assignee
of the Lessor or any agent of either the right to receive and apply the payments of Rent required
hereunder, and will cause this Lease (or short form lease) and any supplemental instrument to
be filed, registered or recorded in any office provided by law and to execute, deliver, file or
record any financing statement pursuant to the Uniform Commercial Code if such filing,
registration or recording shall be necessary or convenient to effect, protect or confirm the rights
of the Lessor hereunder. The Lessee shall pay all recording, filing and registration taxes and
fees, together with all expenses incidental to the preparation, execution, acknowledgement,
filing, registering and recording of this Lease, of any paper pursuant to the Uniform Commercial
05394\9000\69918.1 23
Code and of any instrument of further assurance, and all stamp taxes, mortgage registry taxes
and other taxes, duties, imposts, assessments and charges lawfully imposed upon this Lease.
Section 7.08 Participations. The Lessee hereby acknowledges the right of the Lessor
to create and sell participations or other interests in this Lease, and to assign its rights hereunder
to any Servicer for the benefit of the purchasers of such participations or other interests. The
Lessee agrees to cooperate with the Lessor in the creation and sale of such participations or
other interests herein and to execute such instruments and documents as are reasonably requested
by the Lessor to accomplish such creation and sale or to evidence the succession of any Servicer
to the rights of the Lessor hereunder.
Section 7.09 Tax Exempt Status of Interest Payments. It is the intention of the parties
hereto that the interest component of the Rent payable hereunder will not be includible in the
gross income of the recipients thereof for purposes of federal income taxation by reason of
Section 103 and related Sections of the Internal Revenue Code. In order to confirm and carry
out such intention:
(a) The Lessee shall, to the extent it can legally and accurately do so, (i)
provide such Certificates of the Authorized Lessee Representative, Opinions of Counsel,
and other evidence as may be necessary or requested by the Lessor to establish the
exemption of such interest under Section 103 and related Sections and the absence of
arbitrage expectation under Section 148 of the Internal Revenue Code, and (ii) file such
information and statements with the Internal Revenue Service as may be required from
the Lessee to establish or preserve such exemption or as may be required by Section 103
and related sections of the Internal Revenue Code, regulations thereunder, related
provisions of law or regulation and pertinent provisions of the State of Colorado.
(b) The Lessee will take no action that would cause the interest component of
the Rent payable hereunder to become includible in the gross income of the recipient
thereof for federal income tax purposes under the Internal Revenue Code and regulations
thereunder, and the Lessee will take and will cause its officers, employees and agents to
take all actions legally within-its power necessary to ensure that the interest component
of the Rent payable hereunder does not become includible in the gross income of the
recipient for federal income tax purposes under the Internal Revenue Code and
regulations thereunder.
(c) The Lessee hereby acknowledges and confirms its obligations under
Section 148(f) of the Internal Revenue Code and regulations thereunder. Specifically,
the Lessee agrees to comply with the rebate requirements imposed under said Section
148(f) and regulations thereunder, including (if applicable) the requirement to make or
cause to be made annual calculations of the amount subject to rebate thereunder (at least
once every year and upon termination of this Lease), and to maintain or cause to be
maintained records of such determinations until six years after the termination hereof,
and the requirement to make all required rebates to the United States not later than 30
05394\9000\69918.1 24
days after the end of the fifth year and no later than each fifth anniversary thereof, to and
until the date which is 30 days after the termination hereof. In construing the Lessee's
obligations hereunder, all terms used in this paragraph (c) shall have the meanings
provided in said Section 148(f) and regulations thereunder. Notwithstanding any other
provision of this paragraph (c), no requirement shall be imposed hereunder if an Opinion
of Counsel is rendered, by nationally recognized bond counsel, to the Lessor and the
Lessee to the effect that the failure to impose such requirement will not adversely affect
the tax-exempt status of the interest component of the Rent payable hereunder. The
Lessee agrees to make all required rebate payments to the United States, as and when
required, and such payments shall constitute additional Rent under Section 4.01 hereof.
In connection with the foregoing, Lessee shall be entitled to rely conclusively on an opinion of
counsel in complying with the provision of this Section 7.09.
Section 7.10 Nonsubstitution. To the extent permitted law, Lessee agrees that, following
nonappropriation of funds hereunder, or following the failure by Lessee to exercise its option
to renew the Initial Term or any Renewal Term, Lessee will not purchase, lease or rent property
performing functions similar to those performed through the use of the Project, for the balance
of all Renewal Terms available hereunder.
[The balance of this page is intentionally left blank]
05394\9000\69918.1 25
ARTICLE VIII
ASSIGNMENT, SUBLEASING AND SELLING
Section 8.01 Assignment and Subleasing by Lessee. This Lease may be assigned in
whole or in part, and the Leased Property may be subleased as a whole or in part, by the Lessee
only upon the conditions that:
(a) No assignment (other than pursuant to Section 7.02 hereof) or subletting
shall relieve the Lessee from primary liability for any of its obligations hereunder, and
in the event of any such assignment or subletting the Lessee shall continue to remain
primarily liable for the payment of the Rent specified in Section 4.01 hereof and for
performance and observance of the other agreements on its part herein provided to be
performed and observed by it; and
(b) Any assignment or sublease from the Lessee must retain for the Lessee
such rights and interests as will permit it to perform its obligations under this Lease, and
any assignee from the Lessee shall assume the obligations of the Lessee hereunder to the
extent of the interest assigned; and
(c) No assignment or sublease shall impair the tax-exempt status of the interest
component of the Rent payable hereunder.
Section 8.02 Assignment by the Lessor. The Lessor may assign its rights and interest
in, and pledge any moneys receivable under or pursuant to this Lease.
Section 8.03 Restrictions on Transfer and Encumbrances of Leased Property by the
Lessee. The Lessee agrees that, except as otherwise provided in this Lease, it will not sell,
assign, transfer, convey or otherwise dispose of the Leased Property or any portion thereof
during the Lease Term and that it will not, to the extent permitted by law, create or suffer to
be created any debt, lien or charge thereon or make any pledge or assignment of or create any
lien or encumbrance upon the rents, revenues and receipts derived from the sale, lease or other
disposition of the Leased Property other than as provided in Section 8.01 hereof and except as
the Lessee may create, levy or enforce in its governmental capacity, special assessments, ad
valorem taxes, license fees, and water, sewer and similar user charges to the same extent, if
any, as they could otherwise be created, levied or enforced with respect to property of the
Lessee.
[The balance of this page is intentionally left blank.]
05394\9000\69918.1 26
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
Section 9.01 Events of Default. The following shall be "Events of Default" under this
Lease and the term "Event of Default" shall mean, whenever used in this Lease, any one or
more of the following events:
(a) If the Lessee fails to pay the Rent required to be paid under Section 4.01
hereof when due; or
(b) If the Lessee shall default in the due and punctual performance of any of
the other covenants, conditions, agreements and provisions contained in this Lease or in
any instrument supplemental hereto on the part of the Lessee to be performed, and such
default shall have continued for a period of sixty days after written notice, specifying
such default and requiring the same to be remedied, shall have been given to the Lessee
by the Lessor.
The provisions of paragraph (b) of this Section are subject to the following limitations:
If by reason of force majeure the Lessee is unable in whole or in part to carry out its agreements
on its part contained herein, the Lessee shall not be deemed in default during the continuance
of such disability. The term "force majeure" as used herein includes the following: acts of God;
strikes, lockouts or other employee disturbances; acts of public enemies; orders of any kind of
the government of the United States of America or of the State of Colorado or any of their
departments, agencies, political subdivisions or officials, or any civil or military authority;
insurrections; riots; epidemics; landslides; lightning; earthquakes; fires; hurricanes, storms;
floods; washouts; droughts; arrests; restraint of government and people; civil disturbances;
explosions, breakage or accident to machinery, transmission pipes or canals; partial or entire
failure of utilities; fuel shortage; unavailability of materials; or any other cause or event not
reasonably within the control of the Lessee. The provisions of paragraph (b) of this Section are
subject to the further limitation that if the default can be remedied but not within a period of
sixty days after notice and if the Lessee has taken all action reasonably possible to remedy such
default within such sixty day period, the default shall not become an event of default for so long
as the Lessee shall diligently proceed to remedy such default and in accordance with any
directions or limitations of time made by the Lessor. The Lessee agrees, however, to use good
faith and reasonable efforts to remedy with all reasonable dispatch any cause or causes
preventing the Lessee from carrying out its agreements.
05394\9000\69918.1 27
Section 9.02 Remedies on Default. Whenever any Event of Default referred to in
Section 9.01 hereof shall have happened and be subsisting, the Lessor or a receiver may (i) enter
the Leased Property and take possession of the Leased Property without terminating this Lease,
holding the Lessee liable for the difference in the net income derived from such possession and
the rents and other amounts payable by the Lessee hereunder, or (ii) exclude the Lessee from
possession of the Leased Property and use its best efforts to again lease or sell the Leased
Property in accordance with applicable law, but holding the Lessee liable for all Rent and other
payments otherwise due under this Lease up to the effective date of such new leasing or sale,
or (iii) take whatever action at law or in equity may appear necessary or desirable to collect the
Rent then due and thereafter to become due, or to enforce performance and observance of any
obligation, agreement or covenant of the Lessee under this Lease.
Any amounts collected pursuant to action taken under this Section shall be applied first
to advances and expenses as provided in Section 9.05 hereof, and next to the payment or
prepayment of Rent (principal, interest and premium, if any), and any excess to the Lessee.
Whenever any Default shall occur, the Lessor may take any action at law or in equity
which may appear necessary or desirable to collect the payments then due and thereafter to
become due or to enforce performance and observance of any obligation, agreement or covenant
of the Lessee under this Lease.
The provisions of this Section 9.02 and the exercise of any remedy by the Lessor or a
receiver pursuant to this Section 9.02 are expressly subject to the provisions of Sections 4.07
and 10.03 hereof.
Section 9.03 Remedies Cumulative, Delay Not to Constitute Waiver. No remedy
conferred upon or reserved to the Lessor or a receiver by this Lease is intended to be exclusive
of any other available remedy or remedies, but each and every such remedy shall be cumulative
and shall be in addition to every other remedy given under this Lease or now or hereafter
existing at law or in equity or by statute. No delay or omission to exercise any right or power
accruing upon any default shall impair any such right or power, and any such right or power
may be exercised from time to time and as often as may be deemed expedient. In order to
entitle the Lessor or a receiver to exercise any remedy reserved to it in this Article, it shall not
be necessary to give any notice, other than such notice as may be herein expressly required.
In the event any agreement contained in this Lease should be breached by either party and
thereafter waived by the other party, such waiver shall be limited to a particular breach so
waived and shall not be deemed to waive any other breach hereunder. In case the Lessor shall
have proceeded to enforce any right under this Lease and such proceedings shall have been
determined adversely to the Lessor, the Lessor shall be restored to its former position and rights
hereunder and all rights, remedies and powers of the Lessor shall continue as if no such
proceedings had been taken.
05394\9000\69918.1 28
Section 9.04 Agreement to Pay Attorney's Fees and Expenses. In the event the Lessee
should default under any of the provisions of this Lease and the Lessor or a receiver should
employ attorneys for the collection of Rent or the enforcement of performance or observance
of any obligation or agreement on the part of the Lessee contained in this Lease, the Lessee
agrees that, unless a court of competent jurisdiction orders otherwise, the Lessee will on demand
therefor reimburse the reasonable fee of such attorneys incurred.
Section 9.05 Advances. In the event the Lessee shall fail to pay any Rent under
Section 4.01 hereof, or shall fail to maintain or repair, rebuild or restore any of the Leased
Property, or shall fail to maintain any insurance as required by the provisions of this Lease, or
to do any other thing or make any other payment required to be done or made by any other
provision of this Lease, the Lessor, in its sole discretion, may do or cause to be done any such
thing or make or cause to be made any such payment at the expense or as an advance for the
account of the Lessee, and the Lessee shall pay to the Lessor, upon demand, all costs and
expenses so incurred and advances so made, with interest at the rate of one and one-half percent
(1.50%) per month or part of a month from the date of demand. Any such advance shall be
entitled to priority of payment from any funds thereafter received from the Lessee or under
Section 9.02.
Section 9.06 Waiver of Appraisement, Valuation, Etc. In the event the Lessee should
default under any of the provisions of this Lease, the Lessee agrees to waive, to the extent it
may lawfully do so, the benefit of all appraisement, valuation, stay, extension or redemption
laws now or hereafter in force, and all right of appraisement and redemption to which it may
be entitled, and covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Lessor, but will suffer and permit the execution of every such power as
though no such law had been enacted.
[The balance of this page is intentionally left blank]
05394\9000\69918.1 29
ARTICLE X
OPTION TO PURCHASE
Section 10.01 Option to Purchase Leased Property. On any date during the Lease
Term, the Lessee may terminate this Lease upon payment of the Total Scheduled Payments plus
the Termination Value. The Termination Value as of any Payment Date will equal the amount
specified in Schedule I as of that date. The Termination Value as of any other date shall be
determined on a per diem basis on a straight-line interpretation basis between the Termination
Values for the next preceding and next succeedng Payment Dates. On such termination date,
the Lessee may exercise its option to purchase the leased property in accordance with and upon
fulfillment of the requirements of this section and Section 10.02. The Lessee shall have and is
hereby granted an option to purchase the leased property for $1 at the expiration of all Renewal
Terms available hereunder if full payment or prepayment of all Rent has been made in
accordance with the provisions hereof, and any other conditions precedent to the termination of
the Lease Term fulfilled, and all payments other than Rent payable hereunder shall have been
paid. In the event that the Lessee exercises its option to purchase, the Lessee shall give written
notice to the Lessor, and shall specify therein the date of closing such purchase and the date for
prepayment of any unpaid Rent; the date of closing the purchase shall be not less than forty-five
nor more than ninety days from the date such notice is received by the Lessor, and the closing
of the purchase shall take place on or after the prepayment date. The purchase price payable
by the Lessee in the event of its exercise of the option granted in this Section shall be the sum
of the following:
(1) An amount of money which, when added to the moneys and investments
held by the Lessor for the account of the Lessee, will be sufficient to prepay all Rent due
and to become due, as set forth above, plus
(2) An amount of money equal to any other payments then due and owing
hereunder, plus
(3) The sum of One Dollar ($1.00) to the Lessor.
In the event of the exercise of the option granted in this Section any Net Proceeds of
insurance or condemnation shall be paid to the Lessee, notwithstanding any provision of
Sections 6.01 and 6.02 hereof, and the Lessor will deliver to the Lessee the documents referred
to in Section 10.02 hereof.
The mutual agreements contained in this Section 10.01 are independent of, and constitute
an agreement separate and distinct from, any and all provisions of this Lease and shall be
unaffected by any fact or circumstance which might impair or be alleged to impair the validity
of any other provisions.
05394\9000\69918.1 30
Section 10.02 Conveyance on Exercise of Option to Purchase. On the exercise of any
option to purchase granted herein, the Lessor will, upon payment of the purchase price deliver
or cause to be delivered to the Lessee such documents as Lessee may reasonably require
conveying to the Lessee all of the right, title and interest of the Lessor in and to the property
being purchased, as such property then exists, subject to the following: (i) those liens and
encumbrances, if any, to which title to said property was subject when conveyed to the Lessor;
(ii) those liens and encumbrances created by the Lessee or to the creation or suffering of which
the Lessee consented; and (iii) those liens and encumbrances resulting from the failure of the
Lessee to perform or observe any of the agreements on its part contained in this Lease.
Section 10.03 Relative Position of this Article and Article IX. The rights and options
granted to the Lessee in this Article shall be and remain prior and superior to Article IX hereof
and may be exercised whether or not the Lessee is in default hereunder, provided that such
default will not result in nonfulfillment of any condition to the exercise of any such right or
option.
[The balance of this page is intentionally left blank.]
05394\9000\69918.1 31
ARTICLE XI
MISCELLANEOUS
Section 11.01 Surrender of Leased Property. In the event the Lessee should default
under this Lease and the Lease Term is terminated or in the event of a termination of this Lease
pursuant to Section 4.06 hereof, the Lessee agrees to surrender possession of the Leased
Property peaceably and promptly to the Lessor in as good condition as prevailed at the time it
was put in full possession thereof, loss by fire or other casualty covered by insurance, ordinary
wear and tear, obsolescence and acts of God excepted. (See 11.10)
Section 11.02 Amounts Remaining. It is agreed by the parties hereto that any amounts
remaining on deposit with the Lessor or Servicer for the account of the Lessee hereunder upon
termination of the Lease Term, as provided in this Lease, after payment in full of all Rent and
all other amounts required to be paid hereunder, shall belong to and be paid to the Lessee as
overpayment of rents.
Section 11.03 Notices. All notices, certificates, requests or other communications
hereunder shall be sufficiently given and shall be deemed given when mailed by registered mail,
return receipt requested, postage prepaid, addressed as follows:
A. To the Lessor - Norwest Investment Services, Inc.
Sixth and Marquette Norwest Center
Minneapolis, MN, 55479-0146
B. To the Lessee - County Manager, Weld County, Colorado
915 10th Street
Greeley, Colorado 80631
The Lessee or the Lessor may, by notice given hereunder, designate any further or
different addresses to which subsequent notices, certificates, requests or other communications
shall be sent.
Section 11.04 Binding Effect. This Lease shall inure to the benefit of and shall be
binding upon the Lessor, the Lessee and their respective successors and assigns, subject,
however, to the limitations contained in Sections 7.02, 8.01, 8.02 and 8.03 hereof.
Section 11.05 Amendments, Changes and Modifications. Except as otherwise provided
in this Lease, this Lease may not be effectively amended, changed, modified, altered or
terminated without the prior written consent of the Lessee and the Lessor.
05394\9000\69918.1 32
Section 11.06 Counterparts. This Lease may be executed in several counterparts, each
of which shall be regarded as an original and all of which shall constitute but one and the same
Lease.
Section 11.07 Short Form Lease. The parties hereto, upon written request of either
party, shall within thirty days from the date of such request, execute and deliver a short form
lease for recording purposes, which shall carry the description of the property, the length of the
term, specific reference to and summary of the Lessee's option to purchase, and incorporate by
reference only the other provisions of this Lease.
Section 11.08 Severability. In case any section or provision of this Lease, or in case
any covenant, stipulation, obligation, agreement, act, or action, or part thereof, made, assumed,
entered into, or taken under the Lease, or any application thereof, is for any reason held to be
illegal or invalid, or is at any time inoperable by reason of any law, or actions thereunder, such
illegality or invalidity or inoperability shall not affect the remainder thereof or any other section
or provision of this Lease or any other covenant, stipulation, obligation, agreement, act, or
action, or part thereof, made, assumed, entered into, or taken under this Lease, which shall at
the time be construed and enforced as if such illegal or invalid or inoperable portion were not
contained therein, nor shall such illegality or invalidity or inoperability or any application thereof
affect any legal and valid and operable application therefor from time to time, and each such
section, provision, covenant, stipulation, obligation, agreement, act, or action, or part thereof,
shall be deemed to be effective, operative, made, entered into or taken in the manner and to the
full extent from time to time permitted by law.
Section 11.09 Captions. The captions or headings in this Lease are for convenience only
and in no way define, limit or describe the scope or intent of any provisions or sections of this
Lease.
[The balance of this page is intentionally left blank]
05394\9000\69918.1 33
IN WITNESS WHEREOF, the Lessor and the Lessee have caused this Lease to be
executed in their respective names and attested by duly authorized officers all as of the date first
above written.
NORWEST INVESTMENT SERVICES, INC.
as Lessor,
By: � ~ri7
Its: Ass,s k Jim Drw
STATE OF COLORADO )
) ss.
CITY AND COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this day of April, 1994,
by , the of Norwest Investment Services, Inc.,
a Minnesota Corporation, on behalf of said corporation.
Notary Public, State of Colorado
My Commission Expires:
05394\9000\69918.1 34
[Signature Page to Lease and Purchase Agreement]
WELD COUNTY, COLORADO
By: fI / biefifT
`71
Its: Chairman of the Board of County
Commissioners
ATTEST
By: a
Its: County Clerk to the Board
STATE OF COLORADO )
) ss.
COUNTY OF WELD ) cr—eThe foregoing instrument was acknowledged before me this 4_. 4- day of April,*
of 1994 by 1,„ / - and Chairman of the Board of
County Commissioners and the County Clerk to the BoarOf Weld County, Colorado on behalf
of said County.
4 71
Notary Public, State of Colorado
.. 4'%— Gi
My Commission Expires: 6.
05394\9000169918.1
35
SCHEDULE I
Payment Total Scheduled Termination Payment
Number Payment Interest Principal Value I)ate
May 15, 1994
1 $110,288.60 $19,075.38 $91,213.22 $610,031.20 November 15, 1994
2 $110,288.60 $16,567.01 $93,721.59 $514,230.85 May 15, 1995
3 $110,288.60 $13,989.67 $96,298.93 $416,155.23 November 15, 1995
4 $110,288.60 $11,341.45 $98,947.15 $315,750.32 May 15, 1996
5 $110,288.60 $8,620.40 $101,668.30 $212,960.79 November 15, 1996
6 $110,288.60 $5,824.52 $104,464.07 $107,730.01 May 15, 1997
7 $110,288.60 $2,951.76 $107,336.84 1.00 November 15, 1997
05394\9000\69918.1 36
EXHIBIT A
That portion of the Northwest One Quarter (NW 1/4) of Section 31, Township 6 North, Range 65 West,
of the 6th Principal Meridian, County of Weld, State of Colorado, more particularly described as follows:
Beginning at the North Quarter (N1/4) Corner of said Section 31, and considering the North line
of said Northwest Quarter (NW1/4) to bear North 89° 34' 39" West, with all bearings contained
herein relative thereto;
Thence North 89° 34' 39" West, a distance of 2,256.29 feet;
Thence South 00° 54' 31" Fast, 655.61 feet;
Thence South 89° 35' 52" East, 2,244.79 feet;
Thence North 00° 05' 47" East, 654.65 feet, more or less, to the Point of Beginning.
Excepting therefrom any portion thereof which may lie South of the South line of the North
44.32 acres of the Northwest Quarter (NW1/4) of said Section 31.
Said parcel containing 33.8428 acres, more or less, with all rights-of-way, easements, and
encumbrances of record.
05394\9000\69918.1 A-1
d f‘i
OFFICE OF COUNTY ATTORNEY
PHONE(303)356-4000 EXT.4391
P.O. BOX 1948
WilD
GREELEY, COLORADO 80632
COLORADO
May 2 , 1994
Norwest Investment Services , Inc.
1700 Broadway, Suite 200
Denver, CO 80202
Brownstein Hyatt Farber & Strickland, P.C .
410 Seventeenth Street, 22nd Floor
Denver, CO 80202
RE : Amended and Restated Lease and
Purchase Option Agreement (the
"Lease" )
Gentlemen:
The undersigned is counsel for Weld County, Colorado (the "County" )
and, in connection with the execution of the Lease between Norwest
Investment Services, Inc . (the "Lessor" ) as lessor and the County
as lessee, I have examined the following:
A. Public records , proceedings , and documents in connection
with the organization and establishment of the County
B. The proceedings of the County authorizing, among other
things , the execution and delivery of the Lease
C . Executed counterparts of the Lease .
Based upon the foregoing and upon such other examination as I have
deemed necessary or appropriate, I am of the opinion that
1 . the County is a body corporate and politic, duly
organized and existing under the Constitution and laws of
the State of Colorado, and has corporate power and
authority to carry out and consummate all transactions
contemplated to be carried out by it by the Lease;
2 . with respect to the subject of this opinion, the County
has complied with the provisions of the Constitution and
laws of the State of Colorado and its Home Rule Charter;
Norwest Investment Services, Inc .
Brownstein Hyatt Farber & Strickland, P .C.
Page 2
May 2 , 1994
3 . the County has taken all action necessary to authorize
the execution, delivery, receipt, and due performance of
the Lease and such other agreements and documents that
may be required to be executed, delivered, and received
by the Count in order to carry out, give effect to, and
consummate the transactions contemplated by the Lease;
4 . the Lease has been duly executed and delivered by the
County and the Lease is in full force and effect, and,
assuming the due authorization, execution, and delivery
thereof by the other party thereto, constitutes the
valid, binding, and enforceable obligation of the County
according to its terms ;
5 . no additional or further approval, consent, or
authorization of the County is required in connection
with its participation in the transactions contemplated
by the Lease;
6 . the execution, delivery, and performance by the County of
the Lease will not violate any provision of Colorado law
or any applicable judgment, order, or regulation of any
court or of any public or governmental agency or
authority of the State of Colorado and will not conflict
with, or result in any breach of any of the provisions
of , or constitute a default under any agreement or
instrument to which the County is a party or by which it
is bound;
7 . there is no action, suit, proceeding, or investigation at
law or in equity before or by any court, public board, or
body pending or, to the best of my knowledge, threatened
against or affecting the County wherein an unfavorable
decision, ruling, or finding would adversely affect the
transactions contemplated by the Lease.
y truly yours ,
ruce T. Barker ��-
Weld County Attorney
BTB/gb: norwest
Hello