RECREATIONAL FACILITIES 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
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ARTICLE 1 - DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.1. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.2. CONSTRUCTION . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.3. COMPLIANCE CERTIFICATES AND OPINIONS . . . . . . . . . . 4
Section 1.4. 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
Section 2.3 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE DISTRICT
AND THE RELATED DISTRICTS. . . . . . . . . . . . . . . . 13
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. OWNERSHIP OF PROJECT . . . . . . . . . . . . . . . . . . 14
Section 3.5. DEVELOPMENT AGREEMENT PAYMENTS . . . . . . . . . . . . . 14
Section 3.6. ADDITIONS AND CHANGES. . . . . . . . . . . . . . . . . . 14
Section 3.7. AWARD OF CONTRACTS . . . . . . . . . . . . . . . . . . . 15
Section 3.8. 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 - TITLE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 5.1. TITLE PROVISIONS . . . . . . . . . . . . . . . . . . . . 17
ARTICLE 6 - MAINTENANCE; TAXES; PROJECT IMPROVEMENTS; INSURANCE; AND OTHER
MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 6.1. MAINTENANCE, UTILITIES, TAXES AND ASSESSMENTS. . . . . . 18
Section 6.2. MODIFICATION OF PROJECT. . . . . . . . . . . . . . . . . 18
Section 6.3. LIABILITY AND PROPERTY DAMAGE INSURANCE. . . . . . . . . 19
Section 6.4. INSTALLATION OF PERSONAL PROPERTY. . . . . . . . . . . . 19
Section 6.5. CONSTRUCTION OF ALTERNATIVE FACILITIES . . . . . . . . . 19
Section 6.6. SECURITY INTEREST PROHIBITED . . . . . . . . . . . . . . 19
ARTICLE 7 - DAMAGE, DESTRUCTION AND EMINENT DOMAIN . . . . . . . . . . . . . 21
Section 7.1. APPLICATION OF PROCEEDS. . . . . . . . . . . . . . . . . 21
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TABLE OF CONTENTS
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ARTICLE 8 - DISCLAIMER OF WARRANTIES; ACCESS . . . . . . . . . . . . . . . . 22
Section 8.1. DISCLAIMER OF WARRANTIES . . . . . . . . . . . . . . . . 22
Section 8.2. RIGHTS OF ACCESS . . . . . . . . . . . . . . . . . . . . 22
Section 8.3. FURTHER ASSURANCES AND CORRECTIVE INSTRUMENTS. . . . . . 22
Section 8.4. CORPORATION AND DISTRICT REPRESENTATIVES . . . . . . . . 22
ARTICLE 9 - ASSIGNMENT, SUBLEASING AND AMENDMENT . . . . . . . . . . . . . . 23
Section 9.1. ASSIGNMENT BY THE CORPORATION. . . . . . . . . . . . . . 23
Section 9.2. ASSIGNMENT BY THE DISTRICT . . . . . . . . . . . . . . . 23
Section 9.3. AMENDMENT OF THIS RECREATIONAL FACILITIES AGREEMENT. . . 23
ARTICLE 10 - FURTHER AGREEMENTS. . . . . . . . . . . . . . . . . . . . . . . 24
Section 10.1. MAINTENANCE OF POWERS; SUCCESSORS OF CORPORATION . . . . 24
Section 10.2. TAX-EXEMPT STATUS OF BONDS . . . . . . . . . . . . . . . 24
Section 10.3. NOTICE OF CERTAIN EVENTS . . . . . . . . . . . . . . . . 26
Section 10.4. NO UNTRUE STATEMENTS . . . . . . . . . . . . . . . . . . 26
Section 10.5. CERTAIN MATTERS REGARDING ANY AGREEMENTS, COVENANTS AND
WARRANTIES RELATING TO TAX EXEMPTION . . . . . . . . . . 26
ARTICLE 11 - EVENTS OF DEFAULT AND REMEDIES. . . . . . . . . . . . . . . . . 29
Section 11.1. EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . 29
Section 11.2. REMEDIES ON DEFAULT. . . . . . . . . . . . . . . . . . . 30
Section 11.3. ATTORNEYS' FEES AND EXPENSES . . . . . . . . . . . . . . 31
Section 11.4. NO REMEDY EXCLUSIVE. . . . . . . . . . . . . . . . . . . 32
Section 11.5. NO ADDITIONAL WAIVER IMPLIED BY ONE WAIVER . . . . . . . 32
Section 11.6. CREDIT ENHANCEMENT PROVIDER AND TRUSTEE TO EXERCISE
RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE 12 - OPTION TO TERMINATE . . . . . . . . . . . . . . . . . . . . . . 33
Section 12.1. OPTIONS TO TERMINATE; OPTIONAL REDEMPTION. . . . . . . . 33
Section 12.2. EXTRAORDINARY TERMINATION OPTION . . . . . . . . . . . . 34
Section 12.3. RIGHT TO ACQUIRE . . . . . . . . . . . . . . . . . . . . 34
Section 12.4. UNENCUMBERED TITLE . . . . . . . . . . . . . . . . . . . 35
Section 12.5. DEFAULT RIGHTS . . . . . . . . . . . . . . . . . . . . . 35
Section 12.6. TITLE. . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 12.7. OPERATING AGREEMENT RIGHTS . . . . . . . . . . . . . . . 35
ARTICLE 13 - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 13.1. AMENDMENT OF RECREATIONAL FACILITIES AGREEMENT OR
INDENTURE. . . . . . . . . . . . . . . . . . . . . . . . 36
Section 13.2. NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 13.3. APPLICABLE LAW . . . . . . . . . . . . . . . . . . . . . 37
Section 13.4. BINDING EFFECT . . . . . . . . . . . . . . . . . . . . . 37
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TABLE OF CONTENTS
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Section 13.5. SEVERABILITY OF INVALID PROVISIONS . . . . . . . . . . . 37
Section 13.6. AMOUNTS REMAINING IN FUNDS . . . . . . . . . . . . . . . 37
Section 13.7. EXECUTION OF COUNTERPARTS. . . . . . . . . . . . . . . . 37
Section 13.8. INDENTURE RIGHTS . . . . . . . . . . . . . . . . . . . . 38
Section 13.9. BURDEN ON PROPERTY . . . . . . . . . . . . . . . . . . . 38
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CASTLE ROCK RANCH PUBLIC IMPROVEMENTS AUTHORITY
RECREATIONAL FACILITIES AGREEMENT
THIS RECREATIONAL FACILITIES AGREEMENT (the "Recreational
Facilities 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"). The Related Districts are executing this Recreational
Facilities Agreement to evidence their assent to the provisions herein
referring to them and their consent to the relationship between the District
and the Corporation reflected herein.
RECITALS
A. At an election of the District held November 7, 1995, the electors
of the District approved (i) the execution by the District of recreational
facilities services agreements (of which this Recreational Facilities
Agreement is one) to provide funds to acquire, operate and maintain parks and
recreational facilities, (ii) the levy of taxes to satisfy the obligations of
the District in regard thereto, and (iii) the incurrence by the District of
indebtedness for the purposes of providing water, sanitation, street, traffic
safety, transportation, parks and recreational facilities within or for the
benefit of the District.
B. At elections held on November 7, 1995, the District and the Related
Districts (as defined below) authorized the execution of intergovernmental
agreements (of which the provisions in this Recreational Facilities Agreement
regarding the Related Districts is one) with respect to the recreational
facilities service agreements and debt obligations of the District, including
the levying of taxes to satisfy their obligations in regard to such
facilities.
C. The Corporation has been organized as an instrumentality of the
District to acquire property and provide public facilities, including
recreational facilities.
D. 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 (the
"Recreational Facilities").
E. 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").
F. In regard to the imposition of a tax levy for the Recreational
Facilities, the Corporation and the District have entered into an Operating
Agreement (the "Operating Agreement") dated as of the date hereof but
effective only upon the date either (i) the Town of Castle Rock, Colorado
shall have approved an amendment to the service plan specifically authorizing
the mill levy imposition provided for therein or (ii) the District shall have
received an opinion acceptable to the District of counsel acceptable to the
District that such mill levy may
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be imposed without regard to any service plan amendment. The District and
the Related Districts have entered into an Intergovernmental Agreement (the
"Intergovernmental Agreement") in regard to the Operating Agreement dated as
of the date hereof but effective only on the date the Operating Agreement is
effective.
G. The District and the Related Districts have passed resolutions
authorizing the entering into of agreements between the Corporation and the
property owners in the District and the Related Districts providing for
payments in lieu of taxes pending the effective date of the Operating
Agreement and Intergovernmental Agreement or to the extent the mill levy
authorized therein is not imposed to the maximum extent provided therein and
pursuant thereto the Corporation has entered into the Development Agreement
(as defined below).
H. This Recreational Facilities Agreement shall be replaced (except to
the extent provided herein) by the Operating Agreement and the
Intergovernmental Agreement when they become effective. Pending such date,
the Property and all improvements thereto owned by the Corporation (the
"Project") will be operated in accordance with the terms of this Recreational
Facilities Agreement.
I. 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:
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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 Recreational Facilities 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 Recreational Facilities 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, and any and all similar agreements with the Corporation executed
by owners of property within the District or the Related Districts.
"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 Recreational Facilities Agreement any
occurrence or event specified in and defined by Section 11.1 hereof.
"Related Districts" shall mean Xxxxxx Ridge Metropolitan Districts Nos.
1-4, each special districts and political subdivision of the State of
Colorado.
"Term of this Agreement" or "Recreational Facilities Agreement Term"
shall mean the term provided in Section 4.2 hereof.
Section 1.2. CONSTRUCTION. This Recreational Facilities 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.
(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.
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(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
Recreational Facilities Agreement so numbered unless otherwise so
designated.
(d) The titles or leadlines applied to articles, sections and
subsections in this Recreational Facilities 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 Recreational
Facilities 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 Recreational
Facilities 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 Recreational Facilities Agreement, such
reference, by definition, shall be construed to refer to the identical
article, section, subdivision, paragraph or subparagraph contained in this
Recreational Facilities 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. COMPLIANCE CERTIFICATES AND OPINIONS. Upon any
application or request by the Corporation to the District to take any action
under any provision of this Recreational Facilities 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 Recreational Facilities 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 Recreational Facilities Agreement pursuant to
which the taking of such action is specifically required by such provision,
no additional certificate or opinion need be furnished.
Except as provided in Section 1.4 hereof, every certificate or opinion
with respect to compliance with a condition or covenant provided for in this
Recreational Facilities Agreement or the Indenture shall include:
(1) a statement or opinion specifically identifying the provisions
or sections of this Recreational Facilities 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;
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(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 1.4. 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.
Where any Person is required to make, give or execute two or more
requests, consents, certificates, statements, opinions or other instruments
under this Recreational Facilities Agreement, they may, but need not, be
consolidated and form one instrument.
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Wherever in this Recreational Facilities 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.
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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
Recreational Facilities 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 Recreational Facilities Agreement.
(c) The representative of the Corporation executing this
Recreational Facilities Agreement is fully authorized to execute the same.
(d) This Recreational Facilities Agreement, the Deed of Trust and
the Reimbursement Agreement have been duly executed and delivered by the
Corporation and, 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 Recreational Facilities
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 Recreational Facilities Agreement,
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the Deed of 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 Recreational Facilities 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 Recreational Facilities 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 Recreational Facilities 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 Recreational Facilities 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 Recreational Facilities Agreement.
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(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 Recreational Facilities 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 Recreational Facilities 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 Recreational Facilities 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
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Recreational Facilities Agreement or to perfect or give further assurances
of any of the rights granted or provided for in this Recreational
Facilities Agreement.
(q) Any certificate signed by a Corporation Representative and
delivered pursuant to this Recreational Facilities 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 Recreational Facilities 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
Recreational Facilities Agreement, and (v) to approve the organization of
the Corporation and the issuance of the Bonds thereby.
(b) This Recreational Facilities Agreement has been duly
authorized, executed and delivered by the District and, upon the due
authorization, execution and delivery by all parties hereto, will
constitute a valid and binding obligation of the District, enforceable in
accordance with its 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 Recreational
Facilities Agreement is fully authorized to execute the same.
(d) The execution and delivery of this Recreational Facilities
Agreement, the consummation of the transactions herein 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 Recreational Facilities 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
Recreational Facilities 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
Recreational Facilities 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 Recreational Facilities 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
Recreational Facilities 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.
11
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.
(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 Recreational Facilities 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(f)
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.
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(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 Recreational Facilities 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 Recreational Facilities 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 Recreational
Facilities Agreement or to perfect or give further assurances of any of the
rights granted or provided for in this Recreational Facilities Agreement.
(m) Any certificate signed by a District Representative and
delivered pursuant to this Recreational Facilities Agreement, the
Intergovernmental Agreement or the Indenture shall be deemed a
representation and warranty by the District as to the statements made
therein.
Section 2.3 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE DISTRICT AND
THE RELATED DISTRICTS. The District and the Related Districts, as of the date
hereof, represent, warrant and covenant and agree as follows:
The District and the Related Districts will take all reasonable action
necessary to (i) effect an amendment to each such District's service plan
authorizing the imposition of up to 35 xxxxx on all of the taxable real and
personal property within such District, or (ii) obtain an acceptable opinion of
counsel acceptable to each such District that such a mill levy may be imposed
without regard to any service plan amendment.
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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
hereunder and under the Indenture shall be obligations of the Corporation,
payable from the Trust Estate including the Revenues, as provided in the
Indenture. Neither this Recreational Facilities Agreement nor the Series 1996
Bonds, and the interest thereon, shall 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. Neither the faith and credit nor
the taxing power of the State, the Town of Castle Rock, Colorado, the District,
any Related 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. 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 3.5. DEVELOPMENT AGREEMENT PAYMENTS. The District and the
Related Districts hereby acknowledge that the payments to be made under the
Development Agreement shall constitute payments in lieu of taxes imposed because
of the limitations described in the Operating Agreement and the
Intergovernmental Agreement and consent to the release of the Development
Agreement on the effective date of the Operating Agreement and the
Intergovernmental Agreement to the extent of imposition of the mill levy
provided for therein.
Section 3.6. ADDITIONS AND CHANGES. The Corporation (or such
instrumentality, authority or department as shall be designated by the
Corporation) shall have full responsibility for the acquisition of the Property
and completion of the Project, by such means and in such
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manner as shall be determined in the discretion of the Corporation, with the
consent of the District.
Section 3.7. 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 3.8. 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 Recreational Facilities
Agreement shall commence on the date of execution hereof and shall terminate on
the earlier to occur of (i) payment of all obligations secured by the Deed of
Trust and (ii) the effective date of the Operating Agreement. The District and
the Corporation (or its assigns, including the Trustee) shall execute such
instruments as are necessary to evidence such termination.
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ARTICLE 5
TITLE
Section 5.1. TITLE PROVISIONS. During the Term of this Recreational
Facilities 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. 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.
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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
Recreational Facilities 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 Recreational Facilities 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 Recreational Facilities Agreement as
and when the same become due.
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.
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
18
Project, and shall be subject to the provisions of this Recreational
Facilities 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.
Section 6.4. 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 Recreational
Facilities 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 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 6.5. CONSTRUCTION OF ALTERNATIVE FACILITIES. The District and the
Related Districts agree that they 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 they 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 6.6 hereof.
Section 6.6. 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
19
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, the Operating Agreement 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
Recreational Facilities 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 other mortgage, pledge, lien, charge, encumbrance or
claim, for which it is responsible, if the same shall arise at any time. In
the event that the District fails to 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, 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 it is responsible
for.
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ARTICLE 7
DAMAGE, DESTRUCTION AND EMINENT DOMAIN
Section 7.1. 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.
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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 Recreational Facilities 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, the District, and the Related Districts 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
Recreational Facilities Agreement, including repayment of the Series 1996 Bonds;
provided, however, that neither the Corporation, the District or the Related
Districts 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 Recreational Facilities 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.
22
ARTICLE 9
ASSIGNMENT, SUBLEASING AND AMENDMENT
Section 9.1. ASSIGNMENT BY THE CORPORATION. The Corporation's rights
under this Recreational Facilities Agreement (except for the Corporation's
rights under Section 11.3 hereof), 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 Recreational Facilities
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 unless otherwise agreed to by the District,
the Related Districts, the Corporation and the Credit Enhancement Provider:
(a) No assignment shall relieve the District from primary
liability for any obligations hereunder.
(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 such 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 RECREATIONAL FACILITIES 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 Recreational Facilities Agreement. The
consent of the Related Districts to any such alteration, modification or
cancellation shall not be required unless such alteration, modification or
cancellation adversely effects the obligations of the Related Districts
hereunder.
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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 Recreational Facilities 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.
24
(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, the District and the Related Districts hereby
covenant and agree to comply with the requirements specified in IRS Revenue
Procedure 82-26. Specifically, the Corporation, the District and the
Related Districts 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 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.
25
(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 Projection 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 Recreational Facilities
Agreement does not contain, to the best of the Corporation's, the District's or
the Related Districts' 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 and the Related Districts that all such statements,
representations and warranties made by the District and the Related Districts
shall be deemed to have been relied upon by the Corporation as an inducement to
enter into this Recreational Facilities 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:
26
(i) any lodging facility, within the meaning of the
Code;
(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.
27
(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.
28
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
Recreational Facilities Agreement:
(a) 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;
(b) 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;
(c) 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;
(d) 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;
29
(e) Any warranty, representation or other statement of the
District contained in this Recreational Facilities Agreement or in any
instrument furnished in compliance with or in reference to this
Recreational Facilities Agreement shall prove to have been false or
misleading in any material respect on the date as of which it was made; or
(f) Failure by the District to observe and perform any covenant,
condition agreement or provision of this Recreational Facilities Agreement
or in a document executed in connection herewith, 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 (30) 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 Owners of the Bonds, the Credit Enhancement
Provider or normal operations of the Project or the use thereof for
purposes for which such operations are and were originally intended.
In case the Corporation (or the Credit Enhancement Provider, as the
assignee of the Corporation) shall have proceeded to enforce any right under
this Recreational Facilities 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 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 Recreational Facilities Agreement.
30
(b) 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 or any amount due and payable
hereunder, 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.
(c) The District hereby agrees and consents that in conjunction with the
exercise of any remedies provided in this Recreational Facilities Agreement,
with respect to any dispute relating to this Recreational Facilities 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.
(d) 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
Recreational Facilities 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 it will on demand pay to the District the reasonable
fees
31
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 Recreational Facilities 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.
Section 11.5. NO ADDITIONAL WAIVER IMPLIED BY ONE WAIVER. In the event
any agreement or covenant contained in this Recreational Facilities 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.
32
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
33
(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
(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 Recreational
Facilities 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.
34
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 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.
Section 12.7. OPERATING AGREEMENT RIGHTS. It is the intent of the parties
hereto that upon the effective date of the Operating Agreement and the
termination of this Recreational Facilities Agreement, the rights of the
District specified in this Article 12 shall be replaced by substantially the
same rights provided by the Operating Agreement, and the foregoing rights shall
survive to the extent necessary to have priority over any intervening claim
arising after the date hereof and prior to the effective date of the Operating
Agreement.
35
ARTICLE 13
MISCELLANEOUS
Section 13.1. AMENDMENT OF RECREATIONAL FACILITIES AGREEMENT OR INDENTURE.
This Recreational Facilities 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 Recreational Facilities
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
Recreational Facilities Agreement may not be effectively altered or terminated
without the written consent of all the parties hereto except that the Related
Districts' consent shall only be required if provided for in Section 9.3. 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 or Related District hereunder without obtaining the prior written
consent of the affected District or Related District to such amendment or
supplement.
Section 13.2. NOTICES. Except as otherwise provided in the Indenture or
this Recreational Facilities 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 Recreational Facilities 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: C. Xxxxx Xxxxxxxxxxxx
If to the District Xxxxxx Ridge Metropolitan District No. __
or any Related District: Stanford Place III, Suite 902
0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: C. 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
36
If to the Credit BFC Guaranty Corp.
Enhancement Provider: 0000 Xxxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Section 13.3. APPLICABLE LAW. This Recreational Facilities 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 Recreational Facilities Agreement
shall inure to the benefit of and shall be binding upon the Corporation, the
District, the Related Districts 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 Recreational Facilities 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 Recreational Facilities 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
Recreational Facilities 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 Recreational Facilities Agreement or
any part thereof, it being the intent of the parties hereto that the provisions
of this Recreational Facilities 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 Recreational Facilities Agreement, as provided
in this Recreational Facilities Agreement (or, in the event this Recreational
Facilities Agreement is terminated on the effective date of the Operating
Agreement, then after the expiration or earlier termination thereof), 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 Recreational Facilities
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.
37
Section 13.8. 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.
Section 13.9. BURDEN ON PROPERTY. This Recreational Facilities 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 Recreational
Facilities 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, and as provided in Section 4.2 hereof.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
38
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
C. Xxxxx Xxxxxxxxxxxx /s/ C. Xxxxx Xxxxxxxxxxxx
------------------------ --------------------------------------
Chairman, President
Board of Directors
XXXXXX RIDGE METROPOLITAN
DISTRICT NO. 1
By: C. Xxxxx Xxxxxxxxxxxx
----------------------------------
Title: Chairman
XXXXXX XXXXX XXXXXXXXXXXX
XXXXXXXX XX. 0
By: C. Xxxxx Xxxxxxxxxxxx
----------------------------------
Title: Chairman
XXXXXX XXXXX XXXXXXXXXXXX
XXXXXXXX XX. 0
By: C. Xxxxx Xxxxxxxxxxxx
----------------------------------
Title: Chairman
XXXXXX XXXXX XXXXXXXXXXXX
XXXXXXXX XX. 0
By: C. Xxxxx Xxxxxxxxxxxx
----------------------------------
Title: Chairman
39
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.
(SEAL)
Xxxxx X. Xxxxx
---------------------
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.
(SEAL)
Xxxxx X. Xxxxx
---------------------
Notary Public
My commission expires: 9-16-98
--------------------
40
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. 1, Colorado.
Witness my hand and official seal.
(SEAL)
Xxxxx X. Xxxxx
---------------------
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. 2, Colorado.
Witness my hand and official seal.
(SEAL)
Xxxxx X. Xxxxx
---------------------
Notary Public
My commission expires: 9-16-98
--------------------
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 Xxxxxx Ridge Metropolitan
District No. 3, Colorado.
Witness my hand and official seal.
(SEAL)
Xxxxx X. Xxxxx
---------------------
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. 4, Colorado.
Witness my hand and official seal.
(SEAL)
Xxxxx X. Xxxxx
---------------------
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 88DEG.37'18" E a distance of
2661.22 feet; thence S 88DEG.37'18" E along said Northerly line a distance of
2661.22 feet; thence N 00DEG.23'27" E along the Westerly line of Section 21 a
distance of 782.32 feet; thence S 37DEG.02'12" E a distance of 2474.11 feet;
thence the following four courses along Xxxxxx Ridge filing A;
1. S 67DEG.47'53" W a distance of 128.79 feet;
2. S 39DEG.28'53" W a distance of 108.41 feet;
3. S 58DEG.24'13" E a distance of 228.53 feet;
4. S 83DEG.33'27" E a distance of 170.37 feet;
thence S 37DEG.02'12" E a distance of 1105.69 feet;
thence S 21DEG.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 00DEG.19'26" W a distance of 1262.69 feet
2. N 89DEG.22'02" W a distance of 4017.50 feet
thence N 00DEG.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 00DEG.22'18'' E a distance of 5302.75 feet;
thence N 53DEG.05'33" E a distance of 2071.05 feet to the point of beginning;
thence S 84DEG.49'36" E a distance of 790.91 feet;
thence S 15DEG.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 89DEG.22'05" W a distance of 2386.46 feet;
2. S 00DEG.19'29" E a distance of 308.79 feet;
3. S 89DEG.22'05" E a distance of 2298.04 feet;
thence S 15DEG.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 89DEG.48'11" W a distance of 678.73 feet;
thence S 00DEG.44'59" W a distance of 600.54 feet;
thence S 89DEG.03'33" E a distance of 515.85 feet;
thence S 15DEG.43'30" W a distance of 548.74 feet;
thence N 00DEG.23'36" E a distance of 226.92 feet;
thence S 15DEG.45'37" W a distance of 788.62 feet;
thence N 89DEG.09'35" W, along the South line of the North half of Section
33, a distance of 1062.26 feet;
thence N 00DEG.50'25" E a distance of 1475.80 feet;
thence N 56DEG.57'07" W a distance of 3202.16 feet;
thence N 21DEG.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 of 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
