OPERATING AGREEMENT
Between
CASTLE ROCK RANCH PUBLIC IMPROVEMENTS XXXXXXXXX
xxx
XXXXXX XXXXX XXXXXXXXXXXX XXXXXXXX XX. 0
Dated as of March 1, 1996
TABLE OF CONTENTS
PAGE
ARTICLE 1 - DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.1. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.2. CONSTRUCTION . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.3. COMPUTATIONS . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.4. COMPLIANCE CERTIFICATES AND OPINIONS . . . . . . . . . . 4
Section 1.5. FORM OF DOCUMENTS DELIVERED TO TRUSTEE . . . . . . . . . 5
ARTICLE 2 - REPRESENTATIONS, WARRANTIES AND COVENANTS. . . . . . . . . . . . 7
Section 2.1. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
CORPORATION. . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
DISTRICT . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE 3 - ISSUANCE OF THE SERIES 1996 BONDS. . . . . . . . . . . . . . . . 14
Section 3.1. THE SERIES 1996 BONDS. . . . . . . . . . . . . . . . . . 14
Section 3.2. ACQUISITION OF PROJECT . . . . . . . . . . . . . . . . . 14
Section 3.3. LIABILITY. . . . . . . . . . . . . . . . . . . . . . . . 14
Section 3.4. LIABILITY OF DISTRICT. . . . . . . . . . . . . . . . . . 14
Section 3.5. OWNERSHIP OF PROJECT . . . . . . . . . . . . . . . . . . 14
Section 3.6. [INTENTIONALLY OMITTED]. . . . . . . . . . . . . . . . . 14
Section 3.7. ADDITIONS AND CHANGES. . . . . . . . . . . . . . . . . . 14
Section 3.8. AWARD OF CONTRACTS . . . . . . . . . . . . . . . . . . . 15
Section 3.9. ADMINISTRATION OF CONTRACTS. . . . . . . . . . . . . . . 15
ARTICLE 4 - USE OF PROCEEDS; TERM. . . . . . . . . . . . . . . . . . . . . . 16
Section 4.1. USE OF PROCEEDS OF BONDS . . . . . . . . . . . . . . . . 16
Section 4.2. TERM OF AGREEMENT. . . . . . . . . . . . . . . . . . . . 16
ARTICLE 5 - OPERATING AGREEMENT PAYMENTS . . . . . . . . . . . . . . . . . . 17
Section 5.1. OPERATING AGREEMENT PAYMENTS . . . . . . . . . . . . . . 17
Section 5.2. FAIR VALUE . . . . . . . . . . . . . . . . . . . . . . . 18
Section 5.3. TITLE PROVISIONS . . . . . . . . . . . . . . . . . . . . 18
ARTICLE 6 - MAINTENANCE; TAXES; PROJECT IMPROVEMENTS; INSURANCE; AND OTHER
MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 6.1. MAINTENANCE, UTILITIES, TAXES AND ASSESSMENTS. . . . . . 19
Section 6.2. MODIFICATION OF PROJECT. . . . . . . . . . . . . . . . . 20
Section 6.3. LIABILITY AND PROPERTY DAMAGE INSURANCE. . . . . . . . . 20
Section 6.4. ADVANCES . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 6.5. INSTALLATION OF PERSONAL PROPERTY. . . . . . . . . . . . 20
Section 6.6. CONSTRUCTION OF ALTERNATIVE FACILITIES . . . . . . . . . 21
Section 6.7. SECURITY INTEREST PROHIBITED . . . . . . . . . . . . . . 21
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TABLE OF CONTENTS
PAGE
ARTICLE 7 - DAMAGE, DESTRUCTION AND EMINENT DOMAIN; USE OF PROCEEDS. . . . . 22
Section 7.1. DAMAGE, DESTRUCTION AND EMINENT DOMAIN . . . . . . . . . 22
Section 7.2. APPLICATION OF PROCEEDS. . . . . . . . . . . . . . . . . 22
Section 7.3. NO ABATEMENT OF OPERATING AGREEMENT PAYMENTS IN THE
EVENT OF DAMAGE OR DESTRUCTION . . . . . . . . . . . . . 22
ARTICLE 8 - DISCLAIMER OF WARRANTIES; ACCESS . . . . . . . . . . . . . . . . 23
Section 8.1. DISCLAIMER OF WARRANTIES . . . . . . . . . . . . . . . . 23
Section 8.2. RIGHTS OF ACCESS . . . . . . . . . . . . . . . . . . . . 23
Section 8.3. FURTHER ASSURANCES AND CORRECTIVE INSTRUMENTS. . . . . . 23
Section 8.4. CORPORATION AND DISTRICT REPRESENTATIVES . . . . . . . . 23
ARTICLE 9 - ASSIGNMENT, SUBLEASING AND AMENDMENT . . . . . . . . . . . . . . 24
Section 9.1. ASSIGNMENT BY THE CORPORATION. . . . . . . . . . . . . . 24
Section 9.2. ASSIGNMENT BY THE DISTRICT . . . . . . . . . . . . . . . 24
Section 9.3. AMENDMENT OF THIS OPERATING AGREEMENT. . . . . . . . . . 24
ARTICLE 10 - FURTHER AGREEMENTS. . . . . . . . . . . . . . . . . . . . . . . 25
Section 10.1. MAINTENANCE OF POWERS; SUCCESSORS OF CORPORATION . . . . 25
Section 10.2. TAX-EXEMPT STATUS OF BONDS . . . . . . . . . . . . . . . 25
Section 10.3. NOTICE OF CERTAIN EVENTS . . . . . . . . . . . . . . . . 27
Section 10.4. NO UNTRUE STATEMENTS . . . . . . . . . . . . . . . . . . 27
Section 10.5. CERTAIN MATTERS REGARDING ANY AGREEMENTS, COVENANTS AND
WARRANTIES RELATING TO TAX EXEMPTION . . . . . . . . . . 27
ARTICLE 11 - EVENTS OF DEFAULT AND REMEDIES. . . . . . . . . . . . . . . . . 30
Section 11.1. EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . 30
Section 11.2. REMEDIES ON DEFAULT. . . . . . . . . . . . . . . . . . . 31
Section 11.3. ATTORNEYS' FEES AND EXPENSES . . . . . . . . . . . . . . 33
Section 11.4. NO REMEDY EXCLUSIVE. . . . . . . . . . . . . . . . . . . 33
Section 11.5. NO ADDITIONAL WAIVER IMPLIED BY ONE WAIVER . . . . . . . 34
Section 11.6. CREDIT ENHANCEMENT PROVIDER AND TRUSTEE TO EXERCISE
RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE 12 - OPTION TO TERMINATE . . . . . . . . . . . . . . . . . . . . . . 35
Section 12.1. OPTIONS TO TERMINATE; OPTIONAL REDEMPTION. . . . . . . . 35
Section 12.2. EXTRAORDINARY TERMINATION OPTION . . . . . . . . . . . . 36
Section 12.3. RIGHT TO ACQUIRE . . . . . . . . . . . . . . . . . . . . 36
Section 12.4. UNENCUMBERED TITLE . . . . . . . . . . . . . . . . . . . 36
Section 12.5. DEFAULT RIGHTS . . . . . . . . . . . . . . . . . . . . . 37
Section 12.6. TITLE. . . . . . . . . . . . . . . . . . . . . . . . . . 37
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TABLE OF CONTENTS
PAGE
ARTICLE 13 - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 13.1. AMENDMENT OF OPERATING AGREEMENT OR INDENTURE. . . . . . 38
Section 13.2. NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 13.3. APPLICABLE LAW . . . . . . . . . . . . . . . . . . . . . 39
Section 13.4. BINDING EFFECT . . . . . . . . . . . . . . . . . . . . . 39
Section 13.5. SEVERABILITY OF INVALID PROVISIONS . . . . . . . . . . . 39
Section 13.6. AMOUNTS REMAINING IN FUNDS . . . . . . . . . . . . . . . 39
Section 13.7. EXECUTION OF COUNTERPARTS. . . . . . . . . . . . . . . . 39
Section 13.8. CERTAIN PAYMENTS NET TO CORPORATION. . . . . . . . . . . 39
Section 13.9. INDENTURE RIGHTS . . . . . . . . . . . . . . . . . . . . 39
Section 13.10. BURDEN ON PROPERTY . . . . . . . . . . . . . . . . . . . 40
iii
CASTLE ROCK RANCH PUBLIC IMPROVEMENTS AUTHORITY
OPERATING AGREEMENT
THIS OPERATING AGREEMENT (the "Operating Agreement") is made as of
the 1st day of March 1996, by and between CASTLE ROCK RANCH PUBLIC
IMPROVEMENTS AUTHORITY, a Colorado nonprofit corporation (the "Corporation")
and XXXXXX RIDGE XXXXXXXXXXXX XXXXXXXX XX. 0 (xxx "Xxxxxxxx").
RECITALS
A. The Corporation has been organized to acquire property in order
to provide public facilities.
B. The Corporation shall issue its Public Facilities Revenue
Bonds, Series 1996 (the "Series 1996 Bonds") for the purpose of acquiring
real property described in Exhibit A hereto and water rights (the "Property")
to be improved and operated by the Corporation as recreational facilities.
C. The Series 1996 Bonds will be issued pursuant to an Indenture
of Trust, dated as of the date hereof (the "Indenture"), between the
Corporation and SouthTrust Bank of Alabama, National Association (the
"Trustee").
D. At an election of the District held November 7, 1995, the
electors of the District approved (i) the execution by the District of a
recreational facilities services agreement (of which this Agreement is one)
to provide funds to operate and maintain parks and recreational facilities
(the "Recreational Facilities"), (ii) the levy of taxes to satisfy the
obligations of the District thereunder, and (iii) the incurrence by the
District of indebtedness for the purposes of providing water, sanitation,
street, traffic safety, transportation, parks and recreation facilities
within or for the benefit of the District.
E. At elections held on November 7, 0000, Xxxxxx Xxxxx
Xxxxxxxxxxxx Districts Nos. 1-4 (the "Related Districts") authorized the
execution and delivery of intergovernmental agreements with respect to the
Recreational Facilities service agreement and debt obligations of the
District.
F. The Property and all improvements thereto owned by the
Corporation (the "Project") will be operated in accordance with the terms of
this Operating Agreement.
G. The entire Project shall be used for public golf, tennis or
other recreational activities and shall be considered "Recreational
Facilities" for purposes of this Agreement.
NOW, THEREFORE, for and in consideration of the premises and the
material covenants herein contained, the parties hereby covenant, agree and
bind themselves as follows:
1
ARTICLE 1
DEFINITIONS
Section 1.1. DEFINITIONS. Unless otherwise expressly provided or unless
the context clearly requires otherwise, capitalized words and terms used in this
Operating Agreement shall have the meanings ascribed to them in the Recitals
hereof, or in the Indenture, or in the Deed of Trust or the Reimbursement
Agreement (as each are defined in the Indenture). In addition, the following
terms defined in this Section 1.1 shall, for all purposes of this Operating
Agreement, have the respective meanings herein specified.
"Corporation Representative" means a person designated to act on behalf of
the Corporation, as evidenced by a written certificate furnished to the Trustee
and the District containing the specimen signature of such person and signed for
the Corporation by any of its officers.
"Development Agreement" means the Development Agreement, dated as of the
date hereof, between the Corporation and Xxxxxxx County Development Corporation,
a Colorado corporation, and any and all similar agreements with the Corporation
executed by owners of property within the District or any Related District.
"District Representative" means a person designated to act on behalf of the
District as evidenced by a written certificate furnished to the Corporation and
the Trustee containing the specimen signature of such person and the signature
of a member of the Board of Directors of the District.
"Event of Default" or "Default" shall mean with respect to an Event of
Default or Default under this Operating Agreement any occurrence or event
specified in and defined by Section 11.1 hereof.
"Intergovernmental Agreement" shall mean the Intergovernmental Agreement
between the District and the Related Districts, dated as of the date hereof, as
the same may be amended from time to time.
"Operating Agreement Payments" shall mean the Operating Agreement Payments
required to be made by the District under Article 5 hereof.
"Operation and Maintenance Expenses" shall mean such reasonable and
necessary current expenses, paid or accrued, for operation, maintenance and
repair of the Recreational Facilities as may be determined by the Corporation,
and the term may also include except as limited by contract or otherwise limited
by law, without limiting the generality of the foregoing:
(1) legal and overhead expenses of the Corporation directly related
and reasonably allocable to the administration of the
Recreational Facilities;
2
(2) all insurance premiums and premiums or fees for fidelity bonds
appertaining to or required for the Recreational Facilities or
a reasonably allocable share of a premium of any blanket bond
or policy pertaining to the Recreational Facilities;
(3) contractual services, professional services, salaries,
administrative expenses, and costs of labor appertaining to
the Recreational Facilities;
(4) the costs incurred in the collection of all or any part of the
Revenues from Recreational Facilities;
(5) any costs of utility services furnished to the Recreational
Facilities; and
(6) payments of taxes, payments in lieu of taxes, assessments
imposed by any governmental unit or public corporation, or any
monthly deposits to an escrow established for any such purposes;
"Operation and Maintenance Expenses" does not include:
(a) any allowance for depreciation;
(b) any costs of renewals or replacements, major repairs,
reconstruction, improvements, extensions, or betterments;
(c) any accumulation of reserves for capital replacements;
(d) any reserves for operation, maintenance, or repair of the
Recreational Facilities;
(e) any allowance for the redemption of the Bonds, or the payment
of any interest thereon;
(f) any liabilities incurred in the acquisition or improvement of
any properties comprising the Recreational Facilities or any
combination thereof; and
(g) any other ground of legal liability not based on contract;
"Term of this Agreement" or "Operating Agreement Term" shall mean
the term provided in Section 4.2 hereof.
Section 1.2. CONSTRUCTION. This Operating Agreement, except
where the context by clear implication otherwise requires, shall be construed as
follows:
(a) Words and defined terms in the singular number include the
plural, and words in the plural include the singular.
3
(b) Words in the masculine gender include the feminine and the
neuter, and when the sense so indicates, words of the neuter gender refer
to any gender.
(c) Articles, sections, subsections, paragraphs and subparagraphs
mentioned by number, letter, or otherwise, correspond to the respective
articles, sections, subsections, paragraphs and subparagraphs of this
Operating Agreement so numbered unless otherwise so designated.
(d) The titles or leadlines applied to articles, sections and
subsections in this Operating Agreement are inserted only as a matter of
convenience and ease in reference and in no way define, limit or describe
the scope or intent of any provisions of this Operating Agreement.
(e) The words "herein", "hereof" and "hereunder" and words of
similar import, without reference to any particular article, section,
subdivision, paragraph or subparagraph, refer to this Operating Agreement
as a whole rather than to any particular article, section, subdivision,
paragraph or subparagraph hereof; where such words are used with reference
to a particular article, section, subdivision, paragraph or subparagraph
of this Operating Agreement, such reference, by definition, shall be
construed to refer to the identical article, section, subdivision,
paragraph or subparagraph contained in this Operating Agreement and in any
agreement supplemental thereto or amendatory thereof, unless the context
clearly requires otherwise.
(f) All accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles.
Section 1.3. COMPUTATIONS. Unless the facts shall then be otherwise,
all computations required for the purposes of this Operating Agreement shall
be made on the assumption that: (i) the Operating Agreement Payments shall be
paid as and when the same become due; and (ii) all credits required by this
Operating Agreement or the Indenture to be made to any fund or account shall
be made in the amounts and at the times required.
Section 1.4. COMPLIANCE CERTIFICATES AND OPINIONS. Upon any application
or request by the Corporation to the District to take any action under any
provision of this Operating Agreement, the District shall furnish the
Corporation and the Trustee with a certificate of a District Representative
stating that all conditions precedent, if any, provided for in this Operating
Agreement relating to the proposed action have been complied with and, upon
the reasonable request of the Corporation and the Trustee, an Opinion of
Counsel stating that in the opinion of such Counsel all such conditions
precedent, if any, have been complied with, except that in the case of any
such application or request under any provision of this Operating Agreement
pursuant to which the taking of such action is specifically required by such
provision, no additional certificate or opinion need be furnished.
4
Except as provided in Section 1.5 hereof, every certificate or opinion
with respect to compliance with a condition or covenant provided for in this
Operating Agreement or the Indenture shall include:
(1) a statement or opinion specifically identifying the provisions
or sections of this Operating Agreement or the Indenture requiring such
certificate;
(2) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(3) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(4) a statement that in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(5) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Any Opinion of Counsel may be qualified by reference to the
constitutional powers of the United States of America, the police and
sovereign powers of the State, judicial discretion and bankruptcy,
insolvency, reorganization, moratorium, and other similar laws affecting
creditors rights generally and to similar matters, and by other reasonable
qualifications.
Section 1.5. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. In any case
where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any certificate or opinion of a Corporation Representative or a District
Representative may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such
representative, in the exercise of reasonable care, should know that the
certificate or opinion or representations with respect to the matters upon
which his certificate or opinion is based are erroneous. Any Opinion of
Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, a Corporation
Representative or a District Representative stating that the information with
respect to such factual matters is in the possession of the Corporation or
the District unless such Counsel, in the exercise of reasonable care, should
know that the certificate or opinion or representation with respect to such
matters are erroneous.
5
Where any Person is required to make, give or execute two or more
requests, consents, certificates, statements, opinions or other instruments
under this Operating Agreement, they may, but need not, be consolidated and
form one instrument.
Wherever in this Operating Agreement, in connection with any certificate
or report to the Trustee, it is provided that the Corporation or the District
shall deliver any document as a condition or as evidence of either the
Corporation's or the District's compliance with any term hereof, it is
intended that the truth and accuracy, at the time of the effective date of
such certificate or report (as the case may be), of the facts and opinions
stated in such document shall in each case be conditions precedent to the
right of the District or the Corporation to certify as to the sufficiency of
such certificate or report as evidence of compliance.
6
ARTICLE 2
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 2.1. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
CORPORATION. The Corporation makes the following representations, warranties
and covenants:
(a) The Corporation is a corporate instrumentality of the District
and a nonprofit corporation organized under the laws of the State of
Colorado.
(b) The Corporation has full legal right, power and authority and
has taken all official actions necessary (i) to enter into this Operating
Agreement, (ii) to issue, execute and deliver the Series 1996 Bonds,
(iii) to own the Property and the Project, (iv) to perform its obligations
hereunder and under the Indenture and the Series 1996 Bonds, and (v) to
carry out and to consummate all transactions contemplated by this Operating
Agreement.
(c) The representative of the Corporation executing this Operating
Agreement is fully authorized to execute the same.
(d) This Operating Agreement, the Deed of Trust and the Reimbursement
Agreement have been duly executed and delivered by the Corporation and,
subject to the effective date set forth in Section 4.2 hereof, upon due
authorization, execution and delivery by the other parties hereto and
thereto, will constitute valid and binding obligations of the Corporation,
enforceable against the Corporation in accordance with their respective
terms, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting the rights of
creditors generally and by judicial discretion in the exercise of remedies.
(e) The execution and delivery of this Operating Agreement, the Deed
of Trust and the Reimbursement Agreement, the issuance, execution and
delivery of the Series 1996 Bonds, the performance by the Corporation of
its obligations hereunder and thereunder, the consummation of the
transactions contemplated hereby and thereby and the fulfillment or
compliance with the terms hereof and thereof, will not conflict with or
constitute a violation or breach of or default (with due notice or the
passage of time) under the constitution of the State of Colorado or under
any applicable law, bylaw, administrative rule or regulation or any
ordinance or any order, judgment or decree or any indenture, mortgage, deed
of trust, lease, contract or other agreement or instrument to which the
Corporation is a party or by which it or its properties are otherwise
subject or bound, or result in the creation or imposition of any prohibited
lien, charge or encumbrance of any nature whatsoever upon any of the
property or assets of the Corporation or the District, which conflict,
violation, breach, default, lien, charge or encumbrance would have
consequences that would materially and adversely affect the consummation of
the transactions contemplated by this Operating Agreement, the Deed of
7
Trust or the Reimbursement Agreement or the financial condition, assets,
properties or operations of the Corporation or its properties.
(f) No consent or approval of any trustee or holder of any
indebtedness of the Corporation, and no consent, permission, authorization,
order or license of, or filing or registration with, any governmental
authority is necessary in connection with the execution and delivery of
this Operating Agreement or the consummation of any transaction herein or
therein contemplated, except as have been obtained or made and as are in
full force and effect.
(g) There is no action, suit, proceeding, inquiry or investigation
before or by any court or federal, state, municipal or other governmental
authority pending or, to the knowledge of the Corporation after
reasonable investigation, threatened against or affecting the Corporation
or the assets, properties or operations of the Corporation which, if
determined adversely to the Corporation or its interests, would have a
material and adverse effect upon the consummation of the transactions
contemplated by or the validity of this Operating Agreement or upon the
financial condition, assets, properties or operations of the Corporation,
and the Corporation is not in default with respect to any order or decree
of any court or any order, regulation or demand of any federal, state,
municipal or other governmental authority, which default might have
consequences that would materially and adversely affect the consummation
of the transactions contemplated by this Operating Agreement, or the
financial condition, assets, properties or operations of the Corporation.
(h) The Corporation covenants that it will comply with the
requirements of all applicable laws, rules, regulations and orders of
any sovereign or governmental authority having jurisdiction over the
Corporation or the Project, non-compliance with which would materially
adversely affect the ability of the Corporation to perform its obligations
under this Operating Agreement, unless the same is being contested in good
faith and by appropriate proceedings and such contest shall operate to stay
the material adverse effect of any such noncompliance.
(i) The Corporation will furnish to the Trustee, the Credit
Enhancement Provider and the District as soon as possible and in any event
within two Business Days after the discovery by any officer of the
Corporation of any Event of Default (as such term is defined in the
Indenture), a certificate of a Corporation Representative, setting forth
the details of such Event of Default and the action, if any, which the
Corporation proposes be taken with respect thereto.
(j) The Corporation will take all action and do all things that it
is authorized by law to take and do in order to perform and observe all
covenants and agreements on its part to be performed and observed under
this Operating Agreement.
8
(k) The Corporation has determined that issuing the Series 1996
Bonds to purchase the Property and implement the financing of the Project
will serve the public interest.
(l) Upon termination of this Operating Agreement, the District shall
be entitled to acquire title to the Property and all improvements thereon
as herein provided; provided that the Deed of Trust securing the payment
of principal of and interest on the Bonds shall continue to be a lien on
the Property for so long as the Bonds remain outstanding within the meaning
of the Indenture or obligations of the Corporation otherwise secured
thereby remain unpaid.
(m) The Corporation covenants and agrees to provide to the District,
not later than September 1 of each year during the Term hereof, a budget
for the Project for the ensuing calendar year.
(n) The Corporation will, upon reasonable notice, and subject to
applicable laws and regulations, permit any Person designated by the
District, the Credit Enhancement Provider, or the Trustee in writing,
at its own expense, to visit any of the properties of the Corporation
during normal business hours to examine the books and financial records
of the Corporation and make copies thereof or extracts therefrom, and
to discuss the affairs, finances and accounts of the Corporation with the
officers and employees of the Corporation, all at such reasonable times
and as often as the District may reasonably request. The District, the
Credit Enhancement Provider and the Trustee will each be obligated to keep
confidential any information regarding the Corporation received pursuant
to this subparagraph (n) unless the District, the Credit Enhancement
Provider, or the Trustee is obligated by law to provide such information
to a third party.
(o) The Corporation hereby covenants and agrees that all activities
undertaken by the Corporation will be executed in a cost-effective and
efficient manner in order to assure that operation of the Corporation
complies in all respects with the interest and purpose of the Corporation
specified in the articles of incorporation and bylaws thereof.
(p) The Corporation will execute, acknowledge where appropriate,
and deliver from time to time promptly at the request of the District or
the Trustee all such instruments and documents as in the reasonable
opinion of the District or the Trustee are reasonably required to carry
out the intent and purposes of this Operating Agreement; provided, however,
that the Corporation shall not be required to execute, acknowledge and
deliver any such instruments and documents in the event that any such
instruments or documents will have a material adverse impact on the rights
of the Corporation under this Operating Agreement. The Corporation
hereby covenants to execute and deliver such additional instruments and to
perform such additional acts as may be reasonably required or, in the
reasonable opinion of the District, the Trustee or the Credit Enhancement
Provider to carry out the intent of this Operating Agreement or to perfect
or give further assurances of any of the rights granted or provided for in
this Operating Agreement.
9
(q) Any certificate signed by a Corporation Representative and
delivered pursuant to this Operating Agreement, the Intergovernmental
Agreement or the Indenture shall be deemed a representation and warranty
by the Corporation as to the statements made therein.
Section 2.2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE DISTRICT.
The District, as of the date hereof, represents, warrants and covenants and
agrees as follows:
(a) The District is duly established and organized as a
quasi-municipal corporation and special district under and pursuant to
the laws of the State of Colorado, with full legal right, power and
authority under all applicable laws, including the laws of the State,
(i) to enter into this Operating Agreement and the Intergovernmental
Agreement, (ii) to be bound by the terms hereof and thereof, (iii) to
perform its obligations hereunder and thereunder, (iv) to consummate the
transactions contemplated by this Operating Agreement and the
Intergovernmental Agreement, (v) to issue bonds and incur indebtedness,
and (vi) to approve the organization of the Corporation and the issuance
of the Bonds thereby.
(b) This Operating Agreement and the Intergovernmental Agreement have
been duly authorized, executed and delivered by the District and, subject
to the effective dates of such agreements upon the due authorization,
execution and delivery by all parties hereto and thereto, will constitute
valid and binding obligations of the District, enforceable in accordance
with their respective terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the rights of creditors generally and by judicial discretion in
the exercise of equitable remedies.
(c) The representative of the District executing this Operating
Agreement is fully authorized to execute the same.
(d) The execution and delivery of this Operating Agreement and the
Intergovernmental Agreement, the consummation of the transactions herein
and therein contemplated and the fulfillment of or compliance with the
terms and conditions hereof and thereof, will not conflict with or
constitute a violation or breach of or default (with due notice or the
passage of time or both) under the aforesaid constitution or under any
applicable law or administrative rule or regulation, or any applicable
court or administrative decree, order or judgment, or any indenture,
mortgage, deed of trust, contract or other agreement or instrument to
which the District is a party or by which it or its properties are
otherwise subject or bound, or result in the creation or imposition of
any prohibited lien, charge or encumbrance of any nature whatsoever upon
any of the property or assets of the District, which conflict, violation,
breach, default, lien charge or encumbrance would have consequences that
would materially and adversely affect the consummation of the transactions
contemplated by this Operating Agreement and the Intergovernmental
Agreement or the financial condition, assets, properties or operations of
the District.
10
(e) All necessary consents, permissions, authorization, orders or
licenses of, or filing or registration with, any governmental authority
necessary in connection with the execution and delivery of this Operating
Agreement and the Intergovernmental Agreement or the consummation of any
transaction contemplated herein or therein have been obtained or made and
are in full force and effect as of the date of execution and delivery of
this Operating Agreement.
(f) There is no action, suit, proceeding, inquiry or investigation
before or by any court or federal, state, municipal or other governmental
authority pending or, to the knowledge of the District after reasonable
investigation, threatened against or affecting the District or the assets,
properties or operations of the District which, if determined adversely
to the District or its interests, would have a material and adverse effect
upon the consummation of the transactions contemplated by or the validity
of this Operating Agreement or upon the financial condition, assets,
properties or operations of the District, and the District is not in
default with respect to any order or decree of any court or any order,
regulation or demand of any federal, state, municipal or other governmental
authority, which default might have consequences that would materially and
adversely affect the consummation of the transactions contemplated by this
Operating Agreement or the Intergovernmental Agreement or the financial
conditions, assets, properties or operations of the District.
(g) The District will deliver to the Trustee:
(i) as soon as practicable and in any event within the time
required by the Statutes of the State of Colorado, complete financial
statements, all in reasonable detail and satisfactory in scope as to
the contents thereof;
(ii) promptly upon receipt thereof, a copy of each other report
submitted to the District by its accountants in connection with any
annual, interim or special audit or review by them of the books of the
District; and
(iii) with reasonable promptness, such other financial data as
the Trustee or the Underwriter reasonably requests.
Together with each delivery of financial statements required by clause
(i) above, the District will deliver to the Trustee a certificate of a
District Representative stating that there exists no Event of Default or
Default hereunder or if any such Event of Default or Default exists,
stating the nature thereof, the period of existence thereof and what action
the District proposes to take with respect thereto. The Underwriter is
hereby authorized to deliver a copy of any financial statement delivered
to it pursuant to this Section 2.2 to any regulatory body having
jurisdiction over it. Notwithstanding the foregoing, in lieu of compliance
with the provisions of paragraph 2.2(g), the District may comply with the
terms and conditions of any continuing disclosure agreement required by
the Underwriter in connection with the Series 1996 Bonds.
11
(h) The District will, upon reasonable notice, and subject to
applicable laws and regulations, permit any Person designated by the
Corporation in writing, at its own expense, to visit any of the properties
of the District during normal business hours to examine the books and
financial records of the District and make copies thereof or extracts
therefrom, and to discuss the affairs, finances and accounts of the
District with the officials and employees of the District, all at such
reasonable times and as often as the Corporation, the Credit Enhancement
Provider or the Trustee may reasonably request. The Corporation, the
Credit Enhancement Provider and the Trustee will each be obligated to
keep confidential any information regarding the District received
pursuant to this subparagraph (h) unless the Corporation, the Credit
Enhancement Provider or the Trustee is obligated by law to provide such
information to a third party.
(i) The District will comply with the requirements of the
Constitution, and all laws of the State of Colorado and of any
governmental authority having jurisdiction over the District,
non-compliance with which would materially adversely affect its ability
to perform its obligations under this Operating Agreement, unless such
requirements are contested in good faith and by appropriate proceedings
and such contest shall operate to stay the material adverse effect of any
such noncompliance.
(j) The District covenants to furnish to the Corporation, the Credit
Enhancement Provider and the Trustee as soon as possible and in any event
within two Business Days after the discovery by any employee of the
District of any Event of Default (as such term is defined herein) a
certificate of a District Representative, setting forth the details of
such Event of Default (as such term is defined herein) and the action
which the District proposes to take with respect thereto; provided,
however, that for purposes of this subparagraph (j), a default described
in paragraph 11.1(b) hereof shall become an Event of Default only upon
failure of the District to cure such Default within the period of grace
permitted therein.
(k) The District will take all action and do all things that it is
authorized by law to take and do in order to perform and observe all
covenants and agreements on its part to be performed and observed
hereunder.
12
(l) The District will execute, acknowledge where appropriate, and
deliver from time to time promptly at the request of the Corporation, the
Credit Enhancement Provider or the Trustee all such instruments and
documents as in the reasonable opinion of the Corporation, the Credit
Enhancement Provider or the Trustee are reasonably required to carry out
the intent and purposes of this Operating Agreement; provided, however,
that the District shall not be required to execute, acknowledge and
deliver any such instruments and documents in the event that any such
instruments or documents will have a material adverse impact on the rights
of the District under the Operating Agreement. The District hereby
covenants to execute and deliver such additional instruments and to perform
such additional acts as may be reasonably required or, in the opinion of
the Corporation, the Credit Enhancement Provider or the Trustee, to carry
out the intent of this Operating Agreement or to perfect or give further
assurances of any of the rights granted or provided for in this Operating
Agreement.
(m) The District shall enforce the Intergovernmental Agreement for
the benefit of the Corporation and the holders of the Bonds.
(n) Any certificate signed by a District Representative and delivered
pursuant to this Operating Agreement, the Intergovernmental Agreement or
the Indenture shall be deemed a representation and warranty by the District
as to the statements made therein.
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ARTICLE 3
ISSUANCE OF THE SERIES 0000 XXXXX
Xxxxxxx 3.1. THE SERIES 1996 BONDS. The Corporation has
authorized and the District has approved the issuance of the Series 1996 Bonds
pursuant to the Indenture. The Corporation has caused the proceeds of sale of
the Series 1996 Bonds to be paid to the Trustee on the Closing Date for deposit
pursuant to the terms and conditions of the Indenture.
Section 3.2. ACQUISITION OF PROJECT. The Corporation will be
responsible for the acquisition, construction and completion of the Project.
Section 3.3. LIABILITY. All obligations of the Corporation
incurred under the Indenture shall be general obligations of the Corporation, to
which the Corporation has pledged the Trust Estate, including the Revenues, as
provided in the Indenture. The Series 1996 Bonds, and the interest thereon, do
not constitute a general obligation debt, multiple fiscal year financial
obligation, liability, general or moral obligation or a pledge of the faith and
the credit of the District, the Town of Castle Rock, Colorado, the State of
Colorado (the "State") or any other political subdivision, within the meaning of
any constitutional or statutory limitation or provision. Neither the State, the
District nor any other political subdivision shall be liable thereon and in no
event shall such Series 1996 Bonds be payable out of any funds or properties
other than the Trust Estate. Neither the faith and credit nor the taxing power
of the State, the Town of Castle Rock, Colorado, the District, or any other
political subdivision, instrumentality or agency of the foregoing is pledged to
the payment of the principal of the Series 1996 Bonds or the interest thereon or
other costs incident thereto.
Section 3.4. LIABILITY OF DISTRICT. The obligations of the
District incurred hereunder shall constitute a multiple fiscal year financial
obligation and pledge of the taxing power of the District, to the extent and as
approved by the voters of the District at the election held November 7, 1995,
subject to the limitation of Section 5.1(c) hereof.
Section 3.5. OWNERSHIP OF PROJECT. As between the Corporation
and the District, the Corporation will be the owner of the Property and the
Project and the District shall have no fee title thereto until such time as a
deed to all or any portion of the Property and the Project is delivered to the
District as herein provided. So long as the District shall not be in default
hereunder or during any period of grace permitted to the District to cure a
default under Article 11 hereof, and until such time as the Corporation has
transferred any Project facilities to the District as herein provided, the
Corporation will be responsible for the operation of the Project in accordance
with the terms hereof at all times and will be liable at all times during the
Term hereof for all risk, loss and damage incurred with respect to the Project.
Section 3.6. [INTENTIONALLY OMITTED].
Section 3.7. ADDITIONS AND CHANGES. The Corporation (or such
instrumentality, authority or department as shall be designated by the
Corporation) shall have full responsibility for the
14
acquisition of the Property and completion of the Project, by such means and
in such manner as shall be determined in the discretion of the Corporation,
with the consent of the District.
Section 3.8. AWARD OF CONTRACTS. The Corporation (or such
instrumentality, authority or department as shall be designated by the
Corporation) has executed or shall execute, or has awarded or shall award,
contracts and subcontracts and has issued or shall issue purchase orders
covering the acquisition and completion of the Project. The contracts, the
purchase orders and the work orders for the work to be done are herein referred
to as the "Project Contracts".
Section 3.9. ADMINISTRATION OF CONTRACTS. The Corporation (or
such instrumentality, authority or department as shall be designated by the
Corporation) has had and will continue to have full responsibility for
preparing, administering, amending and enforcing the Project Contracts and
litigating or settling claims thereunder, and will be entitled to all
warranties, guaranties and indemnities provided under the Project Contracts and
by the applicable laws, except with respect to Project Contracts executed or to
be executed in connection with Project facilities which have been transferred to
the District.
15
ARTICLE 4
USE OF PROCEEDS; TERM
Section 4.1. USE OF PROCEEDS OF BONDS. The District hereby
acknowledges that the Corporation will issue the Series 1996 Bonds and incur the
indebtedness evidenced thereby (the aggregate principal amount of which includes
the Costs of Issuance with respect thereto), in order to provide permanent
financing for the Property in accordance with the Indenture.
Section 4.2. TERM OF AGREEMENT. The Term of this Operating
Agreement shall commence on the date specified in Section 5.1(d) as of the date
the District is obligated to make Operating Agreement Payments and shall
terminate on payment of all obligations secured by the Deed of Trust.
16
ARTICLE 5
OPERATING AGREEMENT PAYMENTS
Section 5.1. OPERATING AGREEMENT PAYMENTS.
(a) The District hereby agrees to pay to the Corporation,
its successors and assigns, the following (which are referred to
herein as "Operating Agreement Payments"): (i) all Operations and
Maintenance Expenses to the extent not paid from Revenue, and (ii)
any deficiencies of Revenue required to pay obligations secured by
the Deed of Trust, each within the limitations specified in the
questions voted upon by the electors of the District on November
7, 1995. Operating Agreement Payments shall be due and payable
within thirty (30) days after receipt of amounts collected
therefor from the mill levy imposed by the District pursuant to
paragraph (c) below. The District hereby acknowledges that the
payments made under the Development Agreement shall constitute
payments in lieu of taxes imposed because of the limitations
described in paragraph (d) below, and the District approves the
Development Agreement and consents to the release thereof to the
extent of the imposition of the mill levy as described in
paragraph (d) below.
(b) Overdue Operating Agreement Payments shall continue as
an obligation of the District until the amount in default has been
fully paid and shall bear interest at the rate of fifteen percent
(15%) per annum.
(c) Any and all amounts payable by the District hereunder,
including, but not limited to, amounts payable pursuant to the
provisions of Sections 5.1(a) and 5.1(b) are limited to amounts
(i) collected from a mill levy against taxable real and personal
property within the District not to exceed 35 xxxxx, and (ii)
amounts collected by the District pursuant to the
Intergovernmental Agreement. In the event amounts collected from
such sources shall be insufficient in any year, the amount of such
deficiency shall nevertheless be a continuing obligation of the
District payable from such sources in subsequent years. The
District hereby agrees, subject to the limitations of clause (i)
above, to include in its annual certification to the Board of
County Commissioners of Xxxxxxx County, Colorado, a mill levy
sufficient, when combined with other revenues reasonably
anticipated to be available, to satisfy its obligations hereunder.
In the event of a change in the method for determining assessed
value or the ratio of valuation for assessment, the maximum mill
levy shall be adjusted to account for such revision so that the
taxes certified by the District shall be determined as if such
change had not occurred. The District hereby agrees to take
reasonable steps to enforce the Intergovernmental Agreement and
the Development Agreement.
(d) The obligations of the District to make any Operating
Agreement Payments from mill levy collections shall be enforceable
as of the date that either (i) the Town of Castle Rock, Colorado
shall have approved an amendment to the service plan specifically
authorizing the above-described mill levy imposition, or (ii) the
District shall have received
17
an opinion acceptable to the District of counsel acceptable to
the District that such mill levy may be imposed without regard
to any service plan amendment.
Section 5.2. FAIR VALUE. The District hereby determines that
the Operating Agreement Payments payable during the Term hereof shall be paid by
the District during the Term hereof for and in consideration of the benefit
provided by the Project during such Term. In making such determination,
consideration has been given to the costs of the completion of the Project by
the Corporation, the other obligations of the parties under this Operating
Agreement, the uses and purposes which may be served by the Project, the
benefits therefrom which will accrue to the District and the general public, and
the cost of providing alternative service contracts by the District.
Section 5.3. TITLE PROVISIONS. During the Term of this
Operating Agreement, the Corporation shall hold title to and ownership of each
of the Project facilities and any and all additions thereto which comprise
repairs, replacements, modifications, improvements and substitutions until such
Project facility is transferred to the District. The District hereby agrees
that any damage to the Project that would materially impact the operation of the
Project that is occasioned by the removal of fixtures and improvements shall be
promptly repaired. Notwithstanding anything to the contrary herein, it is
understood that title to personal property permanently attached to the Project
by the District or any other entity, instrumentality, authority or department of
the District shall become a part of the Project.
18
ARTICLE 6
MAINTENANCE; TAXES; PROJECT IMPROVEMENTS;
INSURANCE; AND OTHER MATTERS
Section 6.1. MAINTENANCE, UTILITIES, TAXES AND ASSESSMENTS. The
Corporation and the District each agree that during the term of this Operating
Agreement it will itself at its own expense or will cause others to (a) keep the
Project facilities which it owns in as reasonably safe condition as its
operations will reasonably permit, and (b) keep the Project facilities which it
owns in good repair and in good operating condition, making from time to time
all necessary repairs thereto and renewals and replacements thereof, which may
be necessary for this purpose, so that the Project facilities which it owns will
remain suitable and efficient for use of the character described in and
contemplated by the Indenture.
Throughout the Term of this Operating Agreement all improvement,
repair and maintenance of the Project facilities shall be the responsibility of
the party owning such facilities, and such party shall pay for or otherwise
arrange for the payment of all utility services supplied to such facilities,
which may include, without limitation, cleaning services, maintenance, security,
power and electricity, gas, telecommunications and radio equipment and all
utilities and services supplied to or in connection with the Project, and shall
pay for or otherwise arrange for the payment of the cost of the repair and
replacement of such facilities or any part thereof resulting from ordinary wear
and tear.
Each party shall also pay or cause to be paid, without abatement,
deduction or offset, all property taxes and general and special assessments
(collectively, "property taxes") of any type or nature levied, assessed or
charged by an authorized governmental authority to and against the Project
facilities which it owns, the improvements thereto from time to time and the
respective interests or estates therein; provided that with respect to special
assessments or other governmental charges that may lawfully be paid in
installments over a period of years, each party shall be obligated to pay only
such installments as are required to be paid during the Term of this Operating
Agreement as and when the same become due.
The foregoing provisions are not a limitation on the obligations
of the District to pay Operating Agreement Payments to the Corporation.
Each party may, at its expense and in its name, in good faith
contest any such taxes, assessments, utility and other charges and, in the event
of any such contest, may permit the taxes, assessments or other charges so
contested to remain unpaid during the period of such contest and any appeal
therefrom unless, by nonpayment of any such items, the Project or any part
thereof will be subject to loss or forfeiture, in which event the responsible
party shall promptly pay such taxes, assessments or charges or provide full
security against any loss which may result from nonpayment, in form satisfactory
to the Credit Enhancement Provider and the Trustee.
19
Any payments by the Corporation of the foregoing amounts with
respect to Recreational Facilities shall be considered Operating Agreement
Payments due from the District hereunder.
Section 6.2. MODIFICATION OF PROJECT. The District shall have
the right to (but shall not be obligated to), at its own expense, remodel the
Project or to make additions, modifications and improvements to the Project.
Except as otherwise provided in Section 5.3 and Section 6.5 hereof, all such
additions, modifications and improvements shall thereafter comprise part of the
Project, and shall be subject to the provisions of this Operating Agreement.
Such additions, modifications and improvements shall not in any way damage the
Project or cause the Project to be used for purposes other than those authorized
under the provisions of applicable federal or state law or the Code; and the
Project, upon completion of any additions, modifications and improvements made
thereto pursuant to this Section, shall be of a value which is not less than the
value of the Project immediately prior to the making of such additions,
modifications and improvements. The District will not permit any mechanics or
other liens to be established or remain against the Project for labor or
materials furnished in connection with any additions, modifications,
improvements, repairs, renewals or replacements made by the District pursuant to
this Section; provided that if any such lien is established and the District
shall first notify or cause to be notified the Corporation and the Trustee of
the District's intention to do so, and shall provide the Corporation with full
security against any loss or forfeiture which might arise from the nonpayment of
any such item, in form satisfactory to the Corporation the District may in good
faith contest any lien filed or established against the Project, 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 . The Corporation
will cooperate fully in any such contest, upon the request and at the expense of
the District.
Section 6.3. LIABILITY AND PROPERTY DAMAGE INSURANCE. The
Corporation is obligated, under the Indenture, to provide insurance with respect
to the Project as therein provided. All costs and expenses of the Corporation
with respect to Recreational Facilities shall be Operating Agreement Payments
due from the District hereunder.
Section 6.4. ADVANCES. If the District shall fail to perform
any of its obligations under this Article 6, the Corporation or the Trustee may,
but shall not be obligated to, take such action as may be necessary to cure such
failure, including the advancement of money, and the District shall be obligated
to repay all such advances as soon as possible, with interest at a rate of
twelve percent (12.00%) per annum from the date of the advance to the date of
repayment.
Section 6.5. INSTALLATION OF PERSONAL PROPERTY. The District
may at any time and from time to time, in its sole discretion and at its own
expense, install or permit to be installed items of equipment or other personal
property in or upon the Project which are not permanently attached to the
Project. All such items shall remain the sole property of the District, in
which neither the Corporation nor the Trustee shall have any interest, and may
be modified or removed by the District at any time provided that the District
shall repair and restore any and all damage to the Project resulting from the
installation, modification or removal of any such items. Nothing in this
Operating Agreement shall prevent the District from purchasing or leasing items
to be installed pursuant to this Section under a lease or conditional sale
agreement, or subject to a
20
vendors lien or security agreement, as security for the unpaid portion of the
purchase price thereof, provided that no such lien or security interest shall
attach to any portion of the Project.
Section 6.6. CONSTRUCTION OF ALTERNATIVE FACILITIES. The
District agrees that it will not, during the Term hereof, acquire or construct
an alternate facility to serve substantially the same function as served by the
Project, and that it will not approve the issuance of bonds, notes or other
obligations of another nonprofit corporation to be applied to acquire or
construct such a facility, except as described in clause (iii) of Section 6.7
hereof.
Section 6.7. SECURITY INTEREST PROHIBITED. Neither the District
nor the Corporation shall, directly or indirectly, create, incur, assume or
suffer to exist any mortgage, pledge, lien, charge, encumbrance or claim on or
with respect to all or any portion of the Project or the Revenues, other than
(i) the respective rights of the Corporation, the District, the Credit
Enhancement Provider and the Trustee as herein and in the Indenture, the Deed of
Trust and the Reimbursement Agreement provided, (ii) Permitted Encumbrances
described in the Deed of Trust, and (iii) subordinate mortgages, pledges, liens,
charges, encumbrances or claims the proceeds of which are used to develop
Recreational Facilities on the Property which are approved by the Credit
Enhancement Provider, and which are permitted pursuant to the Indenture. Except
as expressly provided in this Operating Agreement, the Corporation and the
District shall promptly, at their own expenses, take such action as may be
necessary to duly discharge or remove any such mortgage, pledge, lien, charge,
encumbrance or claim, for which it is responsible, if the same shall arise at
any time. The District shall reimburse the Corporation for any expense incurred
by it in order to discharge or remove any such mortgage, pledge, lien, charge,
encumbrance or claim.
21
ARTICLE 7
DAMAGE, DESTRUCTION AND EMINENT DOMAIN;
USE OF PROCEEDS
Section 7.1. DAMAGE, DESTRUCTION AND EMINENT DOMAIN. Unless the
District shall have exercised its option to terminate this Agreement pursuant to
any provision of Article 12 hereof, if prior to full payment of the Series 1996
Bonds (or provisions for payment thereof having been made in accordance with the
provisions of the Indenture) (i) the Project or any portion thereof is damaged
or destroyed (in whole or in part) by fire or other casualty or (ii) title to,
or the temporary use of, the Project or any part thereof shall be taken under
the exercise of the power of eminent domain by any governmental body or by any
person, firm or corporation acting under governmental authority, the District
shall be obligated to continue to pay all Operating Agreement Payments with no
abatement or reduction in such amounts whatsoever.
Section 7.2. APPLICATION OF PROCEEDS. The proceeds of any award
resulting from any damage to or destruction or condemnation of the Project shall
be deposited with the Trustee, as described and provided for in the Indenture.
Section 7.3. NO ABATEMENT OF OPERATING AGREEMENT PAYMENTS IN THE
EVENT OF DAMAGE OR DESTRUCTION. The amount of Operating Agreement Payments for
the Project shall not be abated or diminished during any period in which by
reason of damage or destruction there is substantial interference with the use
by the District of the Project, or any portion thereof or for any other reason
whatsoever; provided, however, that if any insurance proceeds shall be deposited
with the Trustee under the Indenture, they shall be treated as Revenues and
credited against Operating Agreement Payments due and payable hereunder to the
extent applied to the payment of principal of or interest on the Bonds or to
reimburse the Credit Enhancement Provider with respect to amounts drawn under
the Credit Enhancement and so applied. In the event of any such damage or
destruction, this Operating Agreement shall nonetheless continue in full force
and effect and the District waives any right to terminate this Operating
Agreement by virtue of any such damage and destruction.
22
ARTICLE 8
DISCLAIMER OF WARRANTIES; ACCESS
Section 8.1. DISCLAIMER OF WARRANTIES. The Corporation makes no
warranty or representation, either express or implied, as to the value, design,
condition, merchantability or fitness for any particular purpose of, or the
fitness for the use contemplated by the District of, the Project or any portion
thereof, or any other representation or warranty with respect to the Project or
any portion thereof or that the Project will be suitable for the purposes or
needs of the District. In no event shall the Corporation or the Trustee be
liable for incidental, indirect, special or consequential damages, in connection
with or arising out of this Operating Agreement or the Indenture for the
acquisition, construction, existence, furnishing, functioning or District's use
of the Project.
Section 8.2. RIGHTS OF ACCESS. Subject to the provisions of
Section 2.2(h) hereof, the District and the Corporation agree that any
Corporation Representative or District Representative or any officer of the
Trustee shall have the right at all reasonable times to enter upon and to
examine and inspect the Property and the Project. The District and the
Corporation further agree that any such Corporation Representative or District
Representative or officer shall have such rights of access to the Project as may
be reasonably necessary to cause the proper maintenance of the Property and the
Project in the event of failure by the District or the Corporation to perform
its respective obligations hereunder and provided the District shall not have
cured such failure within the period of grace permitted by Section 11.1(b)
hereof.
Section 8.3. FURTHER ASSURANCES AND CORRECTIVE INSTRUMENTS. The
Corporation and the District agree that they will, from time to time, execute,
acknowledge and deliver, or cause to be executed, acknowledged and delivered,
such supplements hereto and such further instruments as may reasonably be
required for correcting any inadequate or incorrect description of the Project
or for carrying out the expressed intention of this Operating Agreement,
including repayment of the Series 1996 Bonds; provided, however, that neither
the Corporation nor the District shall be required to execute, acknowledge and
deliver any such supplements or instruments in the event that any such
supplements or instruments will have a material adverse impact on the respective
rights of either of the parties hereto.
Section 8.4. CORPORATION AND DISTRICT REPRESENTATIVES. Whenever
under the provisions of this Operating Agreement the approval of the Corporation
or the District is required or the Corporation or the District is required to
take some action at the request of the other, such approval or such request
shall be given for the Corporation by a Corporation Representative and for the
District by a District Representative and any party hereto and the Trustee shall
be authorized to act on any such approval or request.
23
ARTICLE 9
ASSIGNMENT, SUBLEASING AND AMENDMENT
Section 9.1. ASSIGNMENT BY THE CORPORATION. The Corporation's
rights under this Operating Agreement (except for the Corporation's rights under
Section 11.3 hereof), including the right to receive and enforce payment of the
Operating Agreement Payments to be made by the District under this Operating
Agreement, may be assigned by the Corporation to the Trustee or the Credit
Enhancement Provider without the consent of the District.
Section 9.2. ASSIGNMENT BY THE DISTRICT. This Operating
Agreement may be assigned as a whole or in part, by the District with the
written consent of the Corporation, the Credit Enhancement Provider and the
Trustee (which consents shall not be unreasonably withheld), subject, however,
to each of the following conditions:
(a) No assignment shall relieve the District from primary
liability for any obligations hereunder, and in the event of any
such assignment the District shall continue to remain primarily
liable for payment of the amounts specified in Sections 5.1
and 8.3 hereof and for performance and observance of each of the
other agreements to be performed and observed by the District to
the same extent as though no assignment had been made.
(b) In the case of an assignment, the assignee shall assume
the obligations of the District hereunder to the extent of the
interest assigned.
(c) The District shall, within thirty (30) days after the
delivery thereof, furnish or cause to be furnished to the
Corporation and the Trustee a true and complete copy of each such
assumption or assignment as the case may be.
(d) No such assignment by the District shall cause the
Project to be used for a purpose other than as may be authorized
under applicable law and under the Indenture and the Reimbursement
Agreement.
Section 9.3. AMENDMENT OF THIS OPERATING AGREEMENT. Without the
written consent of the Credit Enhancement Provider and the Trustee, the
Corporation and the District will not alter, modify or cancel, or agree or
consent to alter, modify or cancel this Operating Agreement.
24
ARTICLE 10
FURTHER AGREEMENTS
Section 10.1. MAINTENANCE OF POWERS; SUCCESSORS OF CORPORATION.
The Corporation will at all times use its best efforts to maintain the powers,
functions, duties and obligations now reposed in it or assure the assumptions of
its obligations hereunder by any instrumentality, authority, public agency or
political subdivision succeeding to its powers.
Section 10.2. TAX-EXEMPT STATUS OF BONDS.
(a) The Corporation and the District each hereby covenants,
represents and agrees that (i) the Corporation and the District
will not take or permit any action to be taken that would
adversely affect the exclusion from gross income tax for federal
income tax purposes of the interest on the Series 1996 Bonds and,
if it should take or permit any such action, the Corporation and
the District shall take all lawful actions that it can take to
rescind such action promptly upon having knowledge thereof; and
(ii) the Corporation and the District will take such action or
actions, including amending this Operating Agreement, as may be
reasonably necessary in the opinion of bond counsel, to comply
fully with all applicable rules, rulings, policies, procedures,
regulations or other official statements promulgated or proposed
by the Department of the Treasury or the Internal Revenue Service
pertaining to obligations the interest on which is excluded from
gross income for federal income tax purposes and to comply with
applicable law.
(b) The District hereby covenants and represents to the
Corporation, and, based upon said covenant and representation, the
Corporation and the District jointly and severally covenant for
the benefit of all purchasers and holders of the Series 1996 Bonds
from time to time outstanding that, as long as any of the Series
1996 Bonds remain outstanding, moneys on deposit in any fund or
account in connection with the Series 1996 Bonds, whether such
moneys were derived from the proceeds of the sale of the Series
1996 Bonds or from any other sources, and whether held by the
Trustee pursuant to the Indenture or by any other person pursuant
to any other arrangement, will not be used in a manner which will
cause the Series 1996 Bonds to be "arbitrage bonds" within the
meaning of Section 148(a) of the Code and any regulations
promulgated or proposed thereunder, and the District and the
Corporation further covenant to comply with the requirements of
said Section 148 of the Code and any regulations promulgated or
proposed thereunder.
(c) The Corporation and the District covenant that neither
of them will enter into any agreement which would result in the
payment of principal or interest on the Series 1996 Bonds being
"federally guaranteed" within the meaning of Section 149(b) of the
Code.
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(d) The Corporation and the District hereby covenant that
neither the District, the Corporation nor any "related person" (as
defined in Section 147(a) of the Code) has acquired, pursuant to
any arrangement, formal or informal, any of the Bonds, and further
covenant that the District, the Corporation and any such "related
person" shall not acquire, pursuant to any arrangement, formal or
informal, any of the Series 1996 Bonds, provided however, that
Series 1996 Bonds may be purchased by a "related person" so long
as such purchase complies with the Code.
(e) The Corporation and the District hereby covenant and
agree to comply with the requirements specified in IRS Revenue
Procedure 82-26. Specifically, the Corporation and the District
warrant, represent and covenant that:
(i) The Corporation is a Colorado not-for-profit
corporation which is an instrumentality of the
District as defined in Section 3.041(a) of Revenue
Procedure 82-26 and Revenue Xxxxxx 00-000, xxxx of
whose income will inure to a private person.
(ii) Upon retirement of the Series 1996 Bonds, the
District will acquire unencumbered fee title to the
Project pursuant to a resolution of the District
adopted prior to the date of this Agreement
approving such acquisition.
(iii) All proceeds of the Series 1996 Bonds
(excluding costs of issuance) and income from
the investment thereof will be applied solely
to the costs of acquiring the Property,
constructing improvements for Recreational
Facilities on the Property, and paying any
interest accruing on the Series 1996 Bonds
during the period that the Property is being
held unimproved prior to the development of
Recreational Facilities thereon and during the
period Recreational Facilities are being
constructed thereon. All such proceeds are
reasonably anticipated to be used for such
purposes. Any such proceeds which remain
after the Property has been acquired and
construction of Recreational Facilities on the
Property has been completed or abandoned will
be used by the Trustee pursuant to the
Indenture solely to redeem Series 1996 Bonds
on the earliest date upon which they can be
called without premium pursuant to the
Indenture or otherwise applied to pay
principal upon the Series 1996 Bonds.
(iv) The District and the Related Districts have
approved by resolutions adopted no more than one
year prior to the date of the issuance of the
Series 1996 Bonds the creation of the Corporation,
the issuance of the Series 1996 Bonds, and the
imposition of payments in lieu of taxes pursuant to
the Development Agreement.
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(v) The Corporation, the District and the Related
Districts will take all reasonable efforts and
proceed diligently to secure all necessary
approvals for construction and financing of the
Recreational Facilities on the Property described
in the Residential and Golf Course Market Analysis
and Revenue Procedure prepared by THK Associates,
Inc. for the Corporation dated February 12, 1996.
All obligations incurred to finance such
improvements or otherwise improve the Property will
be discharged no later than the latest maturity
date of the Series 1996 Bonds. The Corporation and
the District will not consent to the extension of
the maturity of the Series 1996 Bonds or any other
financing regarding the Project.
(vi) The proceeds of all casualty insurance regarding
the Project will be used either to restore the
Recreational Facilities or to retire the Series
1996 Bonds or other financing for the Recreational
Facilities.
Section 10.3. NOTICE OF CERTAIN EVENTS. The District hereby
covenants to advise the Corporation, the Credit Enhancement Provider and the
Trustee promptly in writing of the occurrence of any Event of Default hereunder
or any event which, if such event is not cured within a permitted period of
grace, would constitute an Event of Default hereunder, specifying the nature and
period of existence of such event and the actions being taken or proposed to be
taken with respect thereto. In addition, the District hereby covenants to
advise the Corporation, the Credit Enhancement Provider and the Trustee promptly
in writing of the occurrence of any default hereunder.
Section 10.4. NO UNTRUE STATEMENTS. This Operating Agreement
does not contain, to the best of the Corporation's and the District's knowledge,
any untrue statement of a material fact as of the date hereof and as of the date
of issue of the Bonds. It is specifically understood by the District that all
such statements, representations and warranties made by the District shall be
deemed to have been relied upon by the Corporation as an inducement to enter
into this Operating Agreement and that if any such statements, representations
and warranties were materially incorrect at the time they were made or as of the
date of issue of the Bonds, the Corporation may consider any such
misrepresentation or breach an Event of Default.
Section 10.5. CERTAIN MATTERS REGARDING ANY AGREEMENTS, COVENANTS
AND WARRANTIES RELATING TO TAX EXEMPTION. The District and the Corporation
recognize that the exclusion from gross income for federal income tax purposes
of the interest to be paid on the Series 1996 Bonds is dependent upon the
District's and the Corporation's compliance with certain provisions of the Code.
The Corporation and the District represent and covenant that:
(a) As prohibited by Section 142(c)(2) of the Code, no
proceeds of the Series 1996 Bonds shall be used for any of the
following purposes:
(i) any lodging facility, within the meaning of the
Code;
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(ii) any retail facility (including food and beverage
facilities) in excess of a size necessary to serve
the general public and users and employees at the
Project;
(iii) any retail facility (other than parking) for
passengers or the general public located
outside the Project;
(iv) any office building for individuals who are not
employees of a governmental unit or of the
Corporation;
(v) any industrial park; or
(vi) any manufacturing facility within the meaning of
Section 144 of the Code.
(b) The proceeds from the sale of the Series 1996 Bonds will
be used only for payment of certain Costs of Issuance of the
Series 1996 Bonds and costs of acquiring the Property, and will
not be used to provide working capital for the Corporation, the
District or any affiliate thereof as provided in Section 10.2(e)
above.
(c) The District will not permit or cause any state or local
governmental unit, nor any constituted authority or
instrumentality empowered to issue obligations by or on behalf of
any state or local governmental unit, to issue obligations under
Sections 140 through 150 of the Code, the proceeds of which will
be loaned to or used by the District or any related person (as
defined under Section 147(a)(2) of the Code) during the period
commencing on the date of issuance of the Series 1996 Bonds and
ending thirty (30) days thereafter.
(d) All of the information, representations and warranties
contained in the tax certificates of the Corporation or the
District in connection with the issuance of the Series 1996 Bonds,
are reaffirmed and incorporated herein by this reference as if
fully set forth at this point.
(e) The District shall not take or omit to take or allow any
person to take or omit to take any action which will adversely
affect the exclusion from gross income for federal income tax
purposes of interest on the Series 1996 Bonds.
(f) The District agrees and covenants that any and all
agreements which the District enters into, from time to time, with
any entity by which agreement such entity shall sublease, operate
or manage the Project, shall be in such form which will not
adversely affect the exclusion from gross income for federal
income tax purposes of interest on the Series 1996 Bonds. Any
such agreement shall provide for cancellation by the Corporation
or the District on not more than ninety (90) days' notice.
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(g) None of the proceeds of the Series 1996 Bonds have been
or will be used to finance or be used to provide any airplane,
skybox or other private luxury box, health club facility, facility
primarily used for gambling, or any store the principal business
of which is the sale of alcoholic beverages for consumption off
premises.
(h) The Corporation and the District hereby certify each to
the other that neither the District nor the Corporation have been
notified of any listing or proposed listing of either of them by
the Internal Revenue Service as a bond issuer whose arbitrage
certifications may not be relied upon.
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ARTICLE 11
EVENTS OF DEFAULT AND REMEDIES
Section 11.1. EVENTS OF DEFAULT. Each of the following shall be
and constitute an "Event of Default" by the District and a breach of this
Operating Agreement:
(a) Failure by the District to pay any Operating Agreement
Payment when due and payable hereunder, and the continuation of
any such failure for a period of three (3) Business Days after any
such payment is due, unless such failure occurs as the result of
the application of Section 5.1(c) hereof;
(b) Failure by the District to pay when due any other
amounts required to be paid by the District under this Operating
Agreement, unless such failure occurs as the result of the
application of Section 5.1(c) and (d) hereof or to observe and
perform any covenant, condition, agreement or provision (other
than as specified in clauses (a) or (b) of this Section 11.1 and
other than a failure to comply with Section 2.2(j) hereof)
contained herein or in documents executed in connection herewith
on the part of the District to be observed or performed, which
failure shall continue for a period of thirty (30) days after
written notice thereof, specifying such failure and requesting
that it be remedied, shall have been given to the District by the
Corporation, the Trustee or the Credit Enhancement Provider by
first class mail or hand delivery, any of which may give such
notice in their discretion, unless the Person giving such notice
shall agree in writing to an extension of such thirty day period
prior to expiration; provided, however, that the Corporation, the
Trustee and the Credit Enhancement Provider, as the case may be,
shall be deemed to have agreed to an extension of such period if
corrective action is initiated by the District within such period,
is being diligently pursued, and can be continued and completed in
such manner as to not adversely affect the rights of the
Registered Owners of the Bonds, the Credit Enhancement Provider or
the normal operations of the Project or the use thereof for the
purposes for which such operations are and were originally
intended;
(c) The District shall (i) apply for or consent to the
appointment of or taking of possession by a receiver, trustee,
custodian, liquidator or other similar official of itself or of
all or a substantial part of its properties or assets, (ii) admit
in writing its inability to pay its debts as they become due or
generally become unable to pay its debts as they become due, (iii)
make a general assignment for the benefit of creditors, or (iv)
commence a voluntary case as debtor under the federal bankruptcy
laws (whether under any Title of the United States Code or
otherwise under any federal law) as now or hereafter constituted
or file a petition seeking to take advantage of any other law
relating to bankruptcy, reorganization, insolvency, winding up, or
composition or adjustment of debts, or acquiesce in writing to, or
fail to controvert in a timely manner, a petition filed against it
in any involuntary case under such federal bankruptcy laws, as the
case may be, or any action shall be taken by it for the purpose of
effecting any of the foregoing;
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(d) A case or proceeding shall be commenced, without the
application or consent of the District in any court of competent
jurisdiction, seeking the liquidation, reorganization,
dissolution, winding up, or composition or readjustment of debts,
of the District, or the appointment of a receiver, trustee,
custodian, liquidator or any similar official of the District or
of all or a substantial part of the assets of the District, or
similar relief with respect to the District under any federal laws
relating to bankruptcy (including under any Title of the United
States Code or otherwise under any federal law), insolvency,
liquidation, reorganization, winding up, or composition or
adjustment of debts, shall be commenced against the District and
such case or proceeding shall continue undismissed or unstayed and
in effect for any period of 60 consecutive days, or an order for
relief against the District shall be entered in an involuntary
case under such federal or other bankruptcy laws;
(e) If (i) the District is adjudged insolvent by a court of
competent jurisdiction, or (ii) an order, judgment or decree is
entered by any court of competent jurisdiction appointing, without
the consent of the District, a receiver, trustee or custodian of
the District or of the whole or any part of its property and any
of the aforesaid adjudications, orders, judgments or decrees shall
not be vacated or set aside or stayed within 60 days from the date
of entry thereof;
(f) If, under the provisions of any other law for the relief
or aid of debtors, any court of competent jurisdiction shall
assume custody or control of the District or of the whole or any
substantial part of the property of the District and such custody
or control shall not be terminated within 60 days from the date of
assumption of such custody or control; or
(g) Any warranty, representation or other statement of the
District contained in this Operating Agreement or in any
instrument furnished in compliance with or in reference to this
Operating Agreement shall prove to have been false or misleading
in any material respect on the date as of which it was made.
In case the Corporation (or the Credit Enhancement Provider, as
the assignee of the Corporation) shall have proceeded to enforce any right under
this Operating Agreement and such proceedings shall have been discontinued or
abandoned for any reason or shall have been determined adversely to the
Corporation or the Trustee, then and in every such case the District, the
Corporation, the Trustee and the Credit Enhancement Provider shall be restored
to their respective positions and rights hereunder, and all rights, remedies and
powers of the District, the Corporation, the Trustee and the Credit Enhancement
Provider shall continue as though no such proceeding had been taken, but subject
to the limitations of any such adverse determination.
Section 11.2. REMEDIES ON DEFAULT. Whenever any Event of Default
referred to in Section 11.1 hereof shall have occurred and be continuing:
(a) The Corporation, the Trustee and the Credit Enhancement
Provider shall have the right (i) to inspect, examine and make copies of the
books and records and any and all accounts, data
31
and income tax and other tax returns of the District during regular business
hours of the District if reasonably necessary in the opinion of the Trustee,
the Credit Enhancement Provider, or the Corporation, and (ii) to take whatever
action at law or in equity may appear necessary or desirable to collect the
amounts then due and thereafter to become due, or to enforce performance and
observance of any obligation, agreement or covenant of the District under this
Operating Agreement.
(b) In case the District shall fail forthwith to pay such amounts
upon such demand, the Credit Enhancement Provider shall be entitled, following
payment of the Bonds or provision therefor, as provided in the Indenture, to
liquidate and sell investments held by the Credit Enhancement Provider or the
Trustee in any account within the Bond Fund and apply the proceeds thereof to
payment of such amounts and the Credit Enhancement Provider shall further be
entitled and empowered to otherwise institute any actions or proceedings at law
or in equity for the collection of the sums so due and unpaid, and may prosecute
any such action or proceeding to judgment or final decree, and may enforce any
such judgment or final decree against the District and collect in the manner
provided by law out of the property of the District the moneys adjudged or
decreed to be payable.
(c) In case there shall be pending proceedings for the bankruptcy
or for the reorganization of the District under federal bankruptcy laws or any
other applicable law, or in case a receiver or trustee shall have been appointed
for the property of the District or in the case of any other similar judicial
proceedings relative to the District, or to the creditors or property of the
District, the Corporation, the Trustee or the Credit Enhancement Provider shall
be entitled and empowered, by intervention in such proceedings or otherwise, to
file and prove a claim or claims for the whole amount due and payable hereunder
(including amounts due upon acceleration), including interest owing and unpaid
in respect thereof and for any other amounts then due and payable hereunder and,
in case of any judicial proceedings, to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims
of the Corporation, the Trustee or the Credit Enhancement Provider allowed in
such judicial proceedings relative to the District, its creditors or its
property, and to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute the same after the deduction
of its charges and expenses; and any receiver, assignee or trustee in bankruptcy
or reorganization is hereby authorized to make such payments to the Trustee, the
Corporation and the Credit Enhancement Provider, as their respective interests
appear, including without limitation any amount due for compensation and
expenses, including counsel fees incurred by it up to the date of such
distribution.
(d) The District hereby agrees and consents that in conjunction
with the exercise of any remedies provided in this Operating Agreement, with
respect to any dispute relating to this Operating Agreement that service of
process on the District may be made by either personally serving such process on
any member of the Board of Directors of the District or by mailing such service
of process, by registered mail, return receipt requested, to any member of the
Board of County Commissioners of the District, or such service of process may be
made on any such member of the Board of Directors or on the District in any
manner then permitted by law.
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(e) Any amounts collected pursuant to action taken under this
Section 11.2 shall be applied in accordance with the provisions of the Indenture
and the Reimbursement Agreement.
(f) The foregoing provision of this Section 11.2 are subject to
the limitation that the Trustee shall be entitled to exercise its rights under
this Operating Agreement, other than the rights specified in clause (a)(i)
above, only if the Credit Enhancement Provider has failed to provide payments to
the Trustee pursuant to the Credit Enhancement, or if the Trustee's failure to
exercise such rights could be anticipated to materially adversely effect the
holders of the Series 1996 Bonds.
Section 11.3. ATTORNEYS' FEES AND EXPENSES. If an Event of
Default hereunder occurs and if the Corporation or the Credit Enhancement
Provider should employ attorneys or incur other expenses for the collection of
moneys or the enforcement or performance or observance of any obligation or
agreement on the part of the District herein contained, the District agrees that
it will on demand pay to the Corporation or the Credit Enhancement Provider, as
the case may be, the reasonable fees of such attorneys and such other expenses
so incurred, including those incurred in connection with court appeals. If an
Event of Default hereunder occurs and if the District should employ attorneys or
incur other expenses for the enforcement of performance or observance of any
obligation or agreement on the part of the Corporation herein contained, the
Corporation agrees that in the event the District prevails in such enforcement
or performance or observance of such obligation or agreement on the part of the
Corporation, the Corporation will on demand pay to the District the reasonable
fees of such attorneys and such other expenses so incurred, including those
incurred in connection with court appeals, provided that the Corporation shall
then have its own funds to make such payments, and provided further that at no
time shall any part of the Trust Estate (including any Revenues) be used or
deemed to be available to be used to make payment of any fees or expenses
described in this sentence.
Section 11.4. NO REMEDY EXCLUSIVE. No remedy herein conferred
upon or reserved to the Corporation, the Trustee or the Credit Enhancement
Provider 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 Operating Agreement 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 Event of Default shall impair any such
right or power or shall be construed to be a waiver thereof, but any such right
and power may be exercised from time to time and as often as may be deemed
expedient. In order to entitle the Corporation, the Trustee or the Credit
Enhancement Provider to exercise any remedy reserved to any of them in this
Article 11, it shall not be necessary to give any notice, other than such notice
as may be expressly required by this article or by law. Subject to the terms of
the Indenture, such rights and remedies as are given the Corporation hereunder
shall also extend to the Credit Enhancement Provider, the Trustee and to Owners
of the Bonds, and the Credit Enhancement Provider, the Trustee and the Owners of
the Bonds shall be entitled to the benefit of all covenants and agreements
herein contained.
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Section 11.5. NO ADDITIONAL WAIVER IMPLIED BY ONE WAIVER. In the
event any agreement or covenant contained in this Operating Agreement should be
breached by either party and thereafter waived by the other party, such waiver
shall be limited to the particular breach so waived and shall not be deemed to
waive any other breach hereunder. No waiver shall be deemed as being
established hereunder through conduct, custom, course of dealing, or trade or
public usage. Due to the nature of the assignment of certain of the
Corporation's rights and interests hereunder to the Trustee and the Credit
Enhancement Provider, the Corporation shall have no power to waive any default
hereunder by the District in respect of such rights and interest without the
express prior written consent of the Trustee and the Credit Enhancement Provider
and the Credit Enhancement Provider and the Trustee may exercise any of the
rights of the Corporation hereunder, subject to the limitations of the last
paragraph of Section 11.2 hereof.
Section 11.6. CREDIT ENHANCEMENT PROVIDER AND TRUSTEE TO EXERCISE
RIGHTS. Such rights and remedies as are given to the Corporation under this
Article 11 have been assigned by the Corporation to the Credit Enhancement
Provider and the Trustee under an assignment hereof, to which assignment the
District hereby consents.
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ARTICLE 12
OPTION TO TERMINATE
Section 12.1. OPTIONS TO TERMINATE; OPTIONAL REDEMPTION. The
District shall have, and is hereby granted, the following options to terminate
the Term of this Agreement:
(a) At any time prior to full payment of the Series 1996
Bonds, the District may make provision for payment of the Series
1996 Bonds in accordance with the provisions of the Indenture, and
the District may terminate the Term of this Agreement, regardless
of whether the Series 1996 Bonds are then subject to optional
redemption, (A) by paying to Trustee an amount which, when added
to all amounts then on deposit in the Bond Fund, will be
sufficient to pay, retire and redeem all the Outstanding Series
1996 Bonds in accordance with the provisions of the Indenture
(including, without limiting the generality of the foregoing,
principal of the Outstanding Series 1996 Bonds and interest to
maturity or earliest applicable redemption date, as the case may
be, and premium, if any, expenses of redemption and all fees and
expenses of the Trustee and the District) and, in case of
redemption, by giving notice and making arrangements satisfactory
to the Trustee for the giving of the required notice of redemption
under the Indenture, (B) by giving the Corporation, the Trustee
and the Credit Enhancement Provider notice in writing of such
termination, and (C) by paying all amounts unpaid under the
Reimbursement Agreement and the Deed of Trust, and such
termination shall forthwith become effective.
(b) After full payment of the Series 1996 Bonds (or
provision for payment thereof having been made in accordance with
the provisions of Article IX of the Indenture), and after payment
of all amounts arising under the Reimbursement Agreement and the
Deed of Trust, the District may terminate the Term of this
Agreement by giving the Corporation, the Trustee and the Credit
Enhancement Provider notice in writing of such termination and
such termination shall forthwith become effective.
(c) The prepayment amount payable by the District in the
event of any prepayment to be made pursuant to subsections (a) or
(b) of this Section 12.1 shall be the sum of the following:
(i) An amount of money which, when added to amounts
then on deposit in the Redemption Fund, will be sufficient to
retire and redeem all the then Outstanding Series 1996 Bonds
in the manner required by the Indenture and on the earliest
possible date after notice of redemption is given as provided
in the Indenture, whether or not such date is an Interest
Payment Date, including, without limitation, the principal
amount thereof, all interest to accrue to said redemption
date, the applicable redemption premium and expenses, if any,
plus
(ii) An amount of money equal to the administrative fees
and expenses of the Trustee and the Corporation accrued and
to accrue until such final payment and redemption or purchase
of the Series 1996 Bonds, plus
35
(iii) An amount equal to all amounts then accrued and
to accrue until such final payment and redemption or purchase
of the Series 1996 Bonds, plus
(iv) An amount of money equal to all sums then due the
Corporation under this Agreement, plus
(v) To the extent not included in the foregoing, an
amount sufficient to pay all obligations under the
Reimbursement Agreement and the Indenture.
Section 12.2. EXTRAORDINARY TERMINATION OPTION. The District
shall have, and is hereby granted, the extraordinary option to terminate this
Agreement upon prepayment of the amounts sufficient to provide for the full
payment of the Series 1996 Bonds (or to make provision for such payment in
accordance with the provisions of the Indenture) and all amounts due under the
Reimbursement Agreement and the Deed of Trust, upon the occurrence of any of the
events set forth in Section 9.10(b) or (c) of the Indenture.
To exercise such option, the District shall, within sixty (60)
days following the event authorizing or requiring such prepayment, give written
notice to the Corporation and to the Trustee, and shall specify therein the date
for prepayment of the Series 1996 Bonds and specifying the date redemption of
the Series 1996 Bonds is to be made from such prepayment, subject, however, to
the provisions for the deposit of proceeds of condemnation awards, or other
available money held by the Trustee under the Indenture, as set forth in the
Indenture. Provision shall be made for redemption of the Series 1996 Bonds in
accordance with the express provisions of the Indenture, and the District shall
in all respects make arrangements satisfactory to the Trustee for the giving of
the required notice of redemption in accordance therewith.
Section 12.3. RIGHT TO ACQUIRE. The District is hereby granted
the right to obtain, at any time, unencumbered fee title and exclusive
possession of property (including the Project) financed by obligations of the
Corporation (including the Bonds and obligations arising under the Reimbursement
Agreement), and any additions to such property, by (1) placing into escrow an
amount that will be sufficient to defease such obligations, and (2) paying
reasonable costs incident to the defeasance, in the manner provided in Sections
12.1 or 12.2 hereof. The District, at any time before its defeases such
obligations, shall not agree or otherwise be obligated to convey any interest in
such property to any person (including the United States of America or its
agencies or instrumentalities) for any period extending beyond or beginning
after the District defeases such obligations. In addition, the District shall
not agree or otherwise be obligated to convey a fee interest in such property to
any person who was a user thereof, (or a related person) before the defeasance
within 90 days after the District defeases such obligations.
Section 12.4. UNENCUMBERED TITLE. If the District exercises its
option under Section 12.3, the Corporation shall immediately cancel all
encumbrances on such property, including any leases and management agreements.
Any lease, management contract, or similar encumbrance on such property will be
considered immediately cancelled if the lessee, management company, or other
user vacates such property within a reasonable time, generally not to exceed 90
days, after the date the District exercises its rights under Section 12.3.
Encumbrances that do not
36
significantly interfere with the enjoyment of such property, such as most
easements granted to utility companies, are not considered encumbrances for
purposes of this Section 12.4 or for purposes of Section 12.6.
Section 12.5. DEFAULT RIGHTS. In addition to the foregoing, if
the Corporation defaults in its payments under obligations described in the
Indenture, the District is hereby granted an exclusive option to purchase the
property financed thereby (including the Project) for the amount of the
outstanding indebtedness of the Corporation and accrued interest to the date of
default. The District shall have (a) not less than 90 days from the date it is
notified by the Corporation of the default in which to exercise the option, and
(b) not less than 90 days from the date it exercises the option to purchase the
property.
Section 12.6. TITLE. Unencumbered fee title to the Property and
the Project and any additions thereto and exclusive possession and use thereof
will vest in the District without demand or further action on its part when all
obligations of the Corporation (including the Bonds and obligations under the
Reimbursement Agreement) are discharged. For purposes of this Section 12.6,
such obligations will be discharged when (a) cash is available at the place of
payment on the date that the obligations are due (whether at maturity or upon
call for redemption) and (b) interest ceases to accrue on the obligations. All
leases, management contracts and similar encumbrances on the Property or the
Project shall terminate upon discharge of said obligations in the same manner as
set forth in Section 12.4.
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ARTICLE 13
MISCELLANEOUS
Section 13.1. AMENDMENT OF OPERATING AGREEMENT OR INDENTURE.
This Operating Agreement may not be effectively changed, amended or modified
except with the written consent of the Credit Enhancement Provider and the
Trustee. Except as otherwise provided in this Operating Agreement or in the
Indenture, subsequent to the issuance of the Series 1996 Bonds and prior to
their payment in full (or provision for payment thereof having been made in
accordance with the provisions of the Indenture), this Operating Agreement may
not be effectively altered or terminated without the written consent of all the
parties hereto. The Corporation covenants that it will take no action to amend
or supplement the Indenture in any manner which would materially affect the
obligations of the District hereunder without obtaining the prior written
consent of the District to such amendment or supplement.
Section 13.2. NOTICES. Except as otherwise provided in the
Indenture or this Operating Agreement, all notices, certificates, requests,
requisitions, directions or other communications required or permitted to be
given by the Corporation, the District or the Trustee pursuant to the Indenture
or this Operating Agreement shall be in writing and shall be sufficiently given
and shall be deemed given when mailed by first class mail (unless another form
of communication for any such notice, certificate, request, requisition,
direction or other communication shall be required hereunder), postage prepaid,
addressed as follows:
If to the Corporation: Castle Rock Ranch Public Improvements Authority
Stanford Place III, Suite 902
0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxxxxxxxx
If to the District: Xxxxxx Ridge Metropolitan District Xx. 0
Xxxxxxxx Xxxxx XXX, Xxxxx 000
0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxxxxxxxx
If to the Trustee: SouthTrust Bank of Alabama, National Association
000 Xxxxxx Xxxx Xxxxx, Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Corporate Trust Department
If to the Credit
Enhancement Provider: BFC Guaranty Corp.
0000 Xxxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
38
Section 13.3. APPLICABLE LAW. This Operating Agreement shall be
governed by the laws of the State of Colorado without regard to principles of
choice of law.
Section 13.4. BINDING EFFECT. This Operating Agreement shall
inure to the benefit of and shall be binding upon the Corporation, the District
and their respective successors and assigns, subject, however, to the
limitations contained herein.
Section 13.5. SEVERABILITY OF INVALID PROVISIONS. If any one
provision of this Operating Agreement shall be held or deemed to be or shall, in
fact, be inoperative or unenforceable as applied in any particular case in any
jurisdiction or in all jurisdictions, or in all cases because it conflicts with
any other provision or provisions hereof or any constitution or statute or rule
of public policy, or for any other reason, such circumstances shall not have the
effect of rendering the provision in question inoperative or unenforceable in
any other case or circumstance, or of rendering any other provision or
provisions therein or herein contained invalid, inoperative, or unenforceable to
any extent whatever and this Operating Agreement shall be construed and enforced
as if any such illegal, invalid, inoperative or unenforceable provisions had not
initially been contained therein or herein. In the event any one or more
phrases, sentences, clauses or sections of this Operating Agreement shall be
held invalid or unenforceable by any court of competent jurisdiction, such
holding shall not invalidate or render unenforceable any other provision of this
Operating Agreement or any part thereof, it being the intent of the parties
hereto that the provisions of this Operating Agreement are fully severable.
Section 13.6. AMOUNTS REMAINING IN FUNDS. It is agreed by the
parties hereto that any amounts remaining in the Bond Fund upon expiration or
sooner termination of the Term of this Operating Agreement, as provided in this
Operating Agreement, after payment in full of the Bonds (or provision for
payment thereof having been made in accordance with the provisions of the
Indenture) and payments of all amounts unpaid under the Reimbursement Agreement
and the Deed of Trust, shall be applied and distributed in the manner and
priority as set forth in the Indenture, and after payment of all administrative
fees and expenses of the issuer and the Trustee in accordance with the
provisions of the Indenture.
Section 13.7. EXECUTION OF COUNTERPARTS. This Operating
Agreement may be simultaneously executed in any number of counterparts, each of
which when so executed and delivered shall for all purposes be deemed to be an
original, but such counterparts of which this shall be one shall together
constitute but one and the same instrument.
Section 13.8. CERTAIN PAYMENTS NET TO CORPORATION. The District
hereby agrees that the Operating Agreement Payments shall be an absolutely net
return to the Corporation, free and clear of any expenses, charges or setoffs
whatsoever.
Section 13.9. INDENTURE RIGHTS. The Corporation hereby covenants
and agrees that the provisions of the Indenture granting any rights to the
District shall not be amended as modified without the consent of the District.
39
Section 13.10. BURDEN ON PROPERTY. This Operating Agreement is a
burden upon and runs with the property described in Exhibit A hereto and is
binding upon the Corporation and upon all persons or entities with any right,
title or interest to such property or any part thereof. This Operating Agreement
may be released therefrom in the same manner as the release of property under
the Indenture or the Deed of Trust executed in connection with the issuance of
the Bonds.
[Balance of Page Intentionally Left Blank]
40
IN WITNESS WHEREOF, the undersigned have hereunto set their hands this
29th day of March, 1996.
XXXXXX RIDGE XXXXXXXXXXXX XXXXXX XXXX XXXXX XXXXXX
XXXXXXXX XX. 0 IMPROVEMENTS AUTHORITY
/s/ C. XXXXX XXXXXXXXXXXX /s/ C. XXXXX XXXXXXXXXXXX
------------------------------------- -----------------------------------
Chairman, President
Board of Directors
41
STATE OF COLORADO )
) ss.
COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this 26th
day of March, 1996 by C. Xxxxx Xxxxxxxxxxxx on behalf of Castle Rock Ranch
Public Improvements Authority, a Colorado nonprofit corporation.
Witness my hand and official seal.
/s/ XXXXX X. BEING
(SEAL) --------------------------------------
Notary Public
My commission expires: 9-16-98
---------------------
STATE OF COLORADO )
) ss.
COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this 26th
day of March, 1996 by C. Xxxxx Xxxxxxxxxxxx on behalf of Xxxxxx Ridge
Metropolitan District No. 5, Colorado.
Witness my hand and official seal.
/s/ XXXXX X. BEING
(SEAL) --------------------------------------
Notary Public
My commission expires: 9-16-98
---------------------
42
EXHIBIT A
(Legal Description)
A-1
EXHIBIT A
GOLF COURSE PARCEL A:
A parcel of land located in Sections 28, 29 and 21, all in Township 8 South
Range 67 West of the Sixth Principal Meridian, Xxxxxxx County, Colorado, being
more particularly described as follows:
BEGINNING at the North quarter corner of said Section 29 whence the Northerly
line of the East half of Section 29 bears S 88 DEG. 37'18" E a distance of
2661.22 feet; thence S 88 DEG. 37'18" E along said Northerly line a distance
of 2661.22 feet; thence N 00 DEG. 23'27" E along the Westerly line of Section 21
a distance of 782.32 feet; thence S 37 DEG. 02'12" E a distance of 2474.11
feet; thence the following four courses along Xxxxxx Ridge Filing A;
1. S 67 DEG. 47'53" W a distance of 128.79 feet;
2. S 39 DEG. 28'53" W a distance of 108.41 feet;
3. S 58 DEG. 24'13" E a distance of 228.53 feet;
4. N 83 DEG. 33'27" E a distance of 170.37 feet;
thence S 37 DEG. 02'12" E a distance of 1105.69 feet;
thence S 21 DEG. 08'57" E a distance of 2657.54 feet;
thence the following two courses along a parcel of land described by Book 695
at Page 459 of the Xxxxxxx County Clerk and Recorder's Office:
1. N 00 DEG. 19'26" W a distance of 1262.69 feet
2. N 89 DEG. 22'02" W a distance of 4017.50 feet;
thence N 00 DEG. 14'06" W along the Westerly line of the East half of Section
29 a distance of 3543.76 feet to the point of beginning;
EXCEPTING from the above parcel the following parcels:
Xxxxxx Ridge Filings A and B, all dedicated street rights of way;
ALSO EXCEPTING the following one acre parcel described as follows:
A parcel of land located in the East half of Section 29, Township 8 South,
Range 67 West of the Sixth Principal Meridian, Xxxxxxx County, Colorado, being
more particularly described as follows:
Commencing at the North quarter corner of said Section 29;
thence South 00 degrees 04 minutes 06 seconds East along the westerly line of
said East half of Section 29, a distance of 3267.55 feet to the point of
beginning;
thence North 89 degrees 45 minutes 54 seconds East a distance of 208.71 feet;
thence South 00 degrees 14 minutes 06 seconds East a distance of 208.71 feet;
thence South 89 degrees 45 minutes 54 seconds West a distance of 208.71 feet;
thence North 00 degrees 14 minutes 06 seconds West along said westerly line a
distance of 208.71 feet to the point of Beginning.
County of Xxxxxxx,
State of Colorado
GOLF COURSE PARCEL B:
A Parcel of land lying in sections 22, 27, 28, 33 & 34, all in Township 8
South Range 67 West of the Sixth Principal Meridian, Xxxxxxx County, Colorado,
being more particularly described as follows:
COMMENCING at the Northeast corner of said Section 28 whence the Southeast
corner of said Section 28 bears S 00 DEG. 22'18" E a distance of 5302.75 feet;
thence N 53 DEG. 05'33" E a distance of 2071.05 feet to the point of beginning;
thence S 84 DEG. 49'36" E a distance of 790.91 feet;
thence S 15 DEG. 43'30" W along the Westerly right of way line of the A.T. &
S.F. Railroad a distance of 5019.66 feet;
thence along the following three courses along a parcel of land described by
Book 1095 at Page 629 of the Xxxxxxx County Clerk and Recorder:
1. N 89 DEG. 22'05" W a distance of 2386.46 feet;
2. S 00 DEG. 19'29" E a distance of 308.79 feet;
3. S 89 DEG. 22'05" E a distance of 2298.04 feet;
thence S 15 DEG. 43'30" W along the Westerly right of way line of the A.T. &
S.F. Railroad a distance of 2425.47 feet;
thence N 89 DEG. 48'11" W a distance of 678.73 feet;
thence S 00 DEG. 44'59" W a distance of 600.54 feet;
thence S 89 DEG. 03'33" E a distance of 515.85 feet;
thence S 15 DEG. 43'30" W a distance of 548.74 feet;
thence N 00 DEG. 23'36" E a distance of 226.92 feet;
thence S 15 DEG. 45'37" W a distance of 788.62 feet;
thence N 89 DEG. 09'35" W, along the South line of the North half of Section
33, a distance of 1062.26 feet;
thence N 00 DEG. 50'25" E a distance of 1475.80 feet;
thence N 56 DEG. 57'07" W a distance of 3202.16 feet;
thence N 21 DEG. 08'57" W a distance of 2657.54 feet;
thence along the following fifteen courses along Xxxxxx Ridge Filing B;
2
1. N 77 DEG. 53'15" E, non-tangent to the following described curve, a
distance 42.72 feet;
2. along the arc of a curve to the right, having a central angle of 89
DEG. 23'40", a radius of 41.00 feet, the chord of which bears S 26 DEG.
49'54" W a distance of 57.68 feet and an arc length of 63.97 feet;
3. N 71 DEG. 31'44" E, tangent to the previously described curve, a
distance of 146.27 feet;
4. N 70 DEG. 13'51" E a distance of 110.35 feet;
5. N 71 DEG. 31'4" E, tangent to the following described curve, a
distance of 160.53 feet;
6. along the arc of a curve to the right, having a central angle of 51
DEG. 49'07", a radius of 908.07 feet, the chord of which bears N 82
DEG. 33'43" W a distance of 793.56 feet and an arc length of 821.26
feet;
7. S 51 DEG. 57'48" E, tangent to the previously and following described
curves, a distance of 105.49 feet;
8. along the arc of a curve to the right, having a central angle of 01
DEG. 47'42", a radius of 905.57 feet, the chord of which bears N 49
DEG. 05'17" W a distance of 28.37 feet and an arc length of 28.37 feet;
9. S 48 DEG. 11'26" E, tangent to the previously and following described
curves, a distance of 101.79 feet;
10. along the arc of a curve to the right, having a central angle of 87
DEG. 30'40", a radius of 40.00 feet, the chord of which bears S 04 DEG.
26'06" E a distance of 55.33 feet and an arc length of 61.09 feet;
11. S 47 DEG. 39'40" E non-tangent to the previously and following
described curves, a distance of 120.18 feet;
12. along the arc of a curve to the right, having a central angle of 92
DEG. 40'47", a radius of 40.00 feet, the chord of which bears N 85 DEG.
27'55" E a distance of 57.88 feet and an arc length of 64.70 feet;
13. N 41 DEG. 48'34" E, non-tangent to the previously and following
described curves, a distance of 80.00 feet;
14. along the arc of a curve to the right, having a central angle of 92
DEG. 41'18", a radius of 40.00 feet, the chord of which bears N 01 DEG.
50'31" W a distance of 57.88 feet and an arc length of 64.71 feet to a
point of compound curvature;
15. along a curve, to the right having a central angle of 09 DEG. 19'56",
a radius of 1740.00 feet, the chord of which bears N 49 DEG. 10'21" E
a distance of 283.09 feet and an arc length of 283.40 feet;
thence along the following five courses along Xxxxxx Ridge Filing A:
1. S 36 DEG. 09'41" E, non-tangent to the previously described curve, a
distance of 10.00 feet;
2. N 53 DEG. 50'19" E, tangent to the following described curve, a
distance of 1060.41 feet;
3
3. along the arc of a curve to the left having a central angle of 21
DEG. 00'00", a radius of 2170.00 feet, the chord of which bears N 43
DEG. 20'19" E, a distance of 790.90 feet and an arc length of 795.35
feet;
4. N 32 DEG. 50'19" E, tangent to the previously and following described
curves, a distance of 2182.25 feet;
5. along the arc of a curve to the left, having a central angle of 12
DEG. 18'29", a radius of 1870.00 feet, the chord of which bears N 26
DEG. 41'04" E a distance of 400.94 feet and an arc length of 401.71
feet to the point of beginning;
EXCEPTING from the above parcel the following two parcels:
Exception 3:
A parcel of land located in a portion of Section 28, Township 8 South, Range
67 West of the Sixth Principal Meridian, City of Castle Rock, Xxxxxxx County,
Colorado, being more particularly described as follows:
COMMENCING at the Southeast corner of said Section 28, whence the Northeast
corner of said Section 28 bears N 00 DEG. 22'18" W a distance of 5302.75 feet;
thence N 62 DEG. 23'09" W a distance of 660.85 feet, to the point of beginning;
thence S 63 DEG. 50'19" W a distance of 144.71 feet;
thence N 26 DEG. 09'41" W a distance of 208.00 feet;
thence N 63 DEG. 50'19" E, non-tangent to the following described curve, a
distance of 251.43 feet;
thence along the arc of a curve to the right, having a central angle of 29
DEG. 26'30", a radius of 460.00 feet, the chord of which bears S 00 DEG.
59'57" W a distance of 233.78 feet and an arc length of 236.37 feet to the
point of beginning;
Exception 4:
A parcel of land located in a portion of Section 28, Township 8 South, Range
67 West of the Sixth Principal Meridian, City of Castle Rock, Xxxxxxx County,
Colorado, being more particularly described as follows:
COMMENCING at the Southwest corner of said Section 28, whence the North corner
of said Section 28 bears N 00 DEG. 11'08" W a distance of 5299.57 feet;
thence N 58 DEG. 37'49" E a distance of 3415.73 feet, to the point of
beginning;
thence N 04 DEG. 01'05" E a distance of 208.84 feet;
thence S 87 DEG. 59'38" E a distance of 208.71 feet;
thence S 04 DEG. 01'05" W a distance of 208.84 feet;
thence N 87 DEG. 59'38" W a distance of 208.71 feet to the point of beginning
4
