REIMBURSEMENT AGREEMENT
between
CASTLE ROCK PUBLIC IMPROVEMENTS AUTHORITY
and
BFC GUARANTY CORP.
Dated as of Xxxxx 0, 0000
XXXXXXXXXXXXX AGREEMENT
THIS REIMBURSEMENT AGREEMENT, dated as of March 1, 1996, made by CASTLE
ROCK RANCH PUBLIC IMPROVEMENTS AUTHORITY, a Colorado nonprofit corporation
(the "Authority"), in favor of BFC GUARANTY CORP., a Delaware corporation
(the "Credit Enhancement Provider"). Capitalized terms used but not otherwise
defined herein shall have the meanings provided in Section 17 hereof.
WHEREAS, the Authority has agreed to issue its Public Facilities Revenue
Bonds, Series 1996, in the aggregate principal amount of $66,975,000 (the
"Bonds") in order to acquire certain property; and
WHEREAS, the Bonds will be issued pursuant to a Resolution of the Board
of Directors of the Authority (the "Bond Resolution"), and will be payable in
accordance with the provisions of an Indenture of Trust, dated as of the date
hereof (the "Indenture"), between the Authority and SouthTrust Bank of
Alabama, National Association (the "Trustee"); and
WHEREAS, there will be issued pursuant to that certain Trust Indenture
(the "REMIC Indenture"), dated as of the date hereof, by and between the BFC
Finance Corp. and SouthTrust Bank of Alabama, National Association, as
trustee (the "REMIC Trustee") certain BFC Finance Corp., REMIC Lease-Backed
Bonds, Series 1996 (the "REMIC Bonds"); and
WHEREAS, the Credit Enhancement Provider is the owner of the Federal
Lease-Backed Class B Bonds, one series of the REMIC Bonds (the "Collateral");
and
WHEREAS, to enhance the marketability of the Bonds, the Authority has
requested Credit Enhancement Provider to provide the Collateralized Credit
Enhancement Agreement to the Trustee to secure payment of the principal of
and interest on the Bonds (the "Credit Enhancement"); and
WHEREAS, the Credit Enhancement Provider has agreed to pledge the
Collateral to secure its obligations under the Credit Enhancement, in
accordance with the provisions of a Bond Pledge and Security Agreement, dated
as of the date hereof, between the Credit Enhancement Provider, the Trustee
and the REMIC Trustee (the "Pledge Agreement"); and
WHEREAS, the Authority and Credit Enhancement Provider desire to establish
the terms and conditions for the provision by the Credit Enhancement Provider
of the Credit Enhancement and the reimbursement by the Authority to Credit
Enhancement Provider of any amounts paid by the Credit Enhancement Provider
under the Credit Enhancement.
NOW, THEREFORE, in consideration of the premises and in order to induce
the Credit Enhancement Provider to provide the Credit Enhancement, and
intending to be legally bound hereby, the parties hereto agree as follows:
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SECTION 1. REIMBURSEMENT AND OTHER PAYMENTS.
(a) The Authority hereby agrees to pay to the Credit Enhancement
Provider an amount equal to all amounts paid by the Credit Enhancement
Provider under the Credit Enhancement pursuant to any demand or otherwise
(each a "Credit Payment"), payable on the day on which such Credit Payment is
made pursuant to the Credit Enhancement, together with interest on any and
all such Credit Payments from the date of each such Credit Payment until
payment thereof in full, payable on demand, at an interest rate per annum
(computed on the basis of the actual number of days elapsed and a year of 360
days) equal to the rate of 9% per annum. Notwithstanding the foregoing, the
Authority shall not be obligated to pay interest on any Credit Payment if the
Authority shall have deposited with the Trustee the total amount to be
advanced on any Credit Payment not later than the day prior to such Credit
Payment.
(b) The Authority hereby agrees to pay to the Credit Enhancement
Provider the reasonable fees and expenses of counsel to the Credit
Enhancement Provider incurred in connection with matters relating to the
Credit Enhancement, and this Agreement and other documents delivered in
connection herewith, including, but not limited to costs of enforcement
hereof, and any and all other reasonable charges and expenses which the
Credit Enhancement Provider may pay or incur relative to the Credit
Enhancement, the Bonds, this Agreement and all other agreements executed by
the Authority related thereto and any and all reasonable expenses incurred by
the Credit Enhancement Provider in enforcing any rights under the foregoing,
including fees and expenses of counsel, together with interest on each such
amount, payable on demand, from the date due until payment in full thereof at
the rate per annum provided in subsection 1(a).
(c) The Authority shall pay to the Credit Enhancement Provider a
commitment fee of six percent (6%) of the principal amount of the Bonds on
the Date of Issuance. Such amount shall be fully earned on the Date of
Issuance; provided, upon an extraordinary mandatory redemption of Bonds in
accordance with Section 2.3(b) of the Indenture arising as a result of events
occurring within 5 years of the date of issuance of the Bonds, the commitment
fee shall be promptly refunded to the Authority.
(d) All payments by the Authority to the Credit Enhancement
Provider hereunder shall be non-refundable and made in lawful currency of the
United States and in immediately available funds at the Credit Enhancement
Provider's principal office in Chattanooga, Tennessee no later than 10:00
am., Denver time, on the day payment is due. Payments received by the Credit
Enhancement Provider after 10:00 am. shall be deemed to be received on the
following Business Day.
(e) Pursuant to the Indenture, the Credit Enhancement Provider
shall be subrogated to the rights of the holders of the Bonds at such time as
the Bonds have been paid in full. There is hereby pledged to the Credit
Enhancement Provider all rights, title and interest of the Authority to the
Trust Estate, including the Revenue (both as defined in the Indenture),
subject to the rights specified therein of the Trustee and the Bondholders.
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SECTION 2. CONDITIONS PRECEDENT. It shall be a condition precedent to
the provision by the Credit Enhancement Provider of the Credit Enhancement
that:
(a) the Credit Enhancement Provider shall have received, on or
before the Date of Issuance, the following items, each, unless otherwise
indicated, dated the Date of Issuance and in form and substance satisfactory
to the Credit Enhancement Provider and its Counsel:
(i) copies of the Authority actions authorizing the
execution, delivery and performance of this Agreement, the Indenture,
the Bonds and other related documents and instruments, which written
actions shall be certified by an officer of the Authority (which
certificate shall state that such written actions are in full force and
effect on the Date of Issuance);
(ii) a duly executed Deed of Trust, Security Agreement,
Financing Statement and Assignment of Rents and Leases (the "Deed of
Trust") from the Authority for the benefit of the Credit Enhancement
Provider and the Trustee, in form and substance satisfactory to the Credit
Enhancement Provider, in its sole discretion;
(iii) a duly executed copy of the Operating Agreement, dated
as of the date hereof (the "Operating Agreement") between the Authority and
Xxxxxx Ridge Metropolitan District No. 5 ("District 5"), and an Assignment
of Operating Agreement and Consent (the "Assignment") from the Authority to
the Credit Enhancement Provider and the Trustee;
(iv) a duly executed copy of the Intergovernmental Agreement,
dated as of the date hereof (the "Intergovernmental Agreement"), between
District 5 and Xxxxxx Ridge Metropolitan Districts Nos. 1-4 (the "Related
Districts");
(v) a duly executed copy of the Recreational Facilities
Agreement, dated as of the date hereof (the "Recreational Facilities
Agreement") between the Authority, District 5 and the Related Districts;
(vi) certified copies of the resolution of the boards of
directors of District 5 and the Related Districts authorizing execution of
the Agreements to which each is a party;
(vii) a duly executed copy of the Development Agreement, dated
as of the date hereof, between Xxxxxxx County Development Corporation and
the Authority, and an Assignment of Development Agreement;
(viii) an assignment to the Credit Enhancement Provider and the
Trustee (the "Assignments") of each of the documents specified in clauses
(iii), (iv), (v) and (vii) above;
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(ix) an opinion of Counsel to the Authority, addressed to the
Credit Enhancement Provider, in form and substance satisfactory to the
Credit Enhancement Provider;
(x) an opinion of Jenner & Block, addressed to the Credit
Enhancement Provider, in form and substance satisfactory to the Credit
Enhancement Provider;
(xi) an executed copy of the Indenture;
(xii) an executed promissory note (the "Reimbursement Agreement
Promissory Note") additionally evidencing the obligations of the Authority
hereunder;
(xiii) a copy of the Preliminary Limited Offering Memorandum
(the "Preliminary Offering Memorandum") and the final Offering Memorandum
(the "Official Statement") with respect to the public offering of the
Bonds;
(xiv) receipt of confirmation that the Bonds have been rated at
least "AA+" or the equivalent by Standard & Poor's Ratings Services; and
(xv) such other documents, instruments, approvals and, if
requested by the Credit Enhancement Provider, certified duplicates of
executed copies thereof, and opinions as the Credit Enhancement Provider
may reasonably request.
(b) The following statements shall be true and correct on the Date
of Issuance and the Credit Enhancement Provider shall have received a
certificate signed by a duly authorized officer of the Authority, dated the
Date of Issuance, stating that:
(i) the representations and warranties of the Authority
contained in Section 4 of this Agreement are correct on and as of the Date
of Issuance as though made on and as of such date;
(ii) no petition by or against the Authority has at any time
been filed under the United States Bankruptcy Code or under any similar
act; and
(iii) no Event of Default (as defined in Section 6 hereof) has
occurred and is continuing, or would result from the issuance of the Bonds
or Credit Enhancement and execution of this Agreement or the Indenture,
and no Unmatured Event of Default (as defined in Section 17 hereof) has
occurred and is continuing.
SECTION 3. OBLIGATIONS ABSOLUTE. The obligations of the Authority
under this Agreement shall be absolute, unconditional and irrevocable, and
shall not be subject to any right of set-off or counterclaim and shall be
paid or performed strictly in accordance with the terms of this Agreement,
under all circumstances whatsoever, including, without limitation, the
following circumstances:
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(a) any lack of validity or enforceability of the Bond Documents
(as defined in Section 4(b) hereof, or any other agreement or instrument
relating thereto (the "Related Documents");
(b) any amendment or waiver of any provision of all or any of the
Related Documents unless consented to in writing by the Credit Enhancement
Provider;
(c) the existence of any claim, set-off, defense or other rights
which the Authority may have at any time against the Trustee, any
beneficiary or any transferee of the Credit Enhancement or pledgee of the
Collateral or any persons or entities for whom the Trustee, any such
beneficiary or any such transferee may be acting, the Credit Enhancement
Provider (other than the defense of payment to the Credit Enhancement
Provider in accordance with the terms of this Agreement) or any other person
or entity, whether in connection with this Agreement, the Indenture, the
Bonds or the Reimbursement Agreement Promissory Note or any transaction
contemplated thereby or any unrelated transaction.
(d) any statement or any other document presented under the Credit
Enhancement proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any respect
whatsoever;
(e) payment under the Credit Enhancement which does not comply
with the terms of the Pledge Agreement or the Indenture (other than a payment
resulting from the willful misconduct or gross negligence of the Credit
Enhancement Provider); and
(f) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing.
SECTION 4. REPRESENTATION AND WARRANTIES. The Authority represents and
warrants as follows:
(a) The Authority is a duly organized, and validly existing
nonprofit corporation, existing as such and in good standing under the laws
of the State of Colorado.
(b) The Bond Documents, which for purposes of this Agreement
includes the Bond Resolution, this Agreement, the Deed of Trust, the
Operating Agreement, the Assignment, the Reimbursement Agreement Promissory
Note, the Intergovernmental Agreement, the Development Agreement, the
Recreational Facilities Agreement, the Assignments, the Reimbursement
Agreement Promissory Note, the Bonds and the Indenture, were duly authorized
by the affirmative vote of a majority of the duly qualified members of the
Board of Directors of the Authority voting thereon and are in full
conformance with all applicable laws, rules, and regulations and the articles
of incorporation and by-laws of the Authority.
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(c) The approval and execution of the Bond Documents, and
performance of the Authority's obligations thereunder, do not conflict with or
constitute a breach of or default under, any indenture, commitment,
agreement, or other instrument to which the Authority is a party or by which
the Authority is bound, nor violate any existing law, rule, regulation,
resolution, judgment, order, or decree to which the Authority or its
property is subject.
(d) No litigation of any nature is now pending against the
Authority, or, to the best of the Authority's knowledge, threatened against
the Authority, seeking to restrain or to enjoin the execution and performance
of the Bond Documents, the issuance or delivery of the Bonds or the levy or
collection of any taxes to pay the principal of or interest on the Bonds, or
in any manner questioning the authority or proceedings for the issuance of
the Bonds or the levy or collection of said taxes, or affecting the validity
of the Bonds or the levy or collection of said taxes; and no litigation of
any nature is now pending against the Authority or, to the best of the
knowledge of the Authority, threatened against the Authority, which, if
determined adversely to the Authority, would have a material adverse effect
upon the Authority's ability to comply with its obligations under the Bond
Documents, or to consummate the transactions contemplated thereby.
(e) The Bond Documents are valid and binding obligations of the
Authority, and are enforceable against the Authority in accordance with their
terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws or equitable
principles relating to or limiting creditors' rights generally.
(f) All financial and other information regarding the Authority
provided to the Credit Enhancement Provider by the Authority is true and
correct as of the date so provided and there has been no material and adverse
change with respect to such information as it concerns the Authority except
as has been provided to the Credit Enhancement Provider.
(g) The representations and warranties of the Authority contained
in the Bond Documents are true and correct.
(h) The Authority shall maintain insurance of such type and in
such amounts or in excess of such amounts as are customarily carried by and
insures against such risks as are customarily insured against by
organizations of like size and character to the Authority located in the
State of Colorado and subject to the Colorado Governmental Immunity Act or
comparable legislation to the same extent as the Authority.
SECTION 5. COVENANTS OF THE AUTHORITY AND SECURITY PROVISIONS.
(a) COVENANTS. So long as either (i) the Credit Enhancement
is in effect, or (ii) any amount is due or owing to the Credit Enhancement
Provider hereunder, the Authority will:
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(i) COMPLIANCE WITH LAWS AND REGULATIONS. Comply with all laws,
ordinances, orders, rules and regulations of duly constituted public
authorities which may be applicable to it or to the facilities it owns
and/or operates. The Authority shall, however, be entitled to contest
the application of any such law, ordinance, order, rule or regulation,
provided that such contest does not materially impair the ability of the
Authority to perform its obligations under this Agreement and the
Related Documents which, for the purposes of this Agreement, include the
Bond Documents and any other document to which the District is a party
related to the issuance of the Bonds and identified in an index of
closing documents delivered with respect to the Bonds.
(ii) COMPLETION OF RECREATIONAL FACILITIES. Take all reasonable
efforts and proceed diligently to secure all necessary approvals for
construction and financing of the recreational facilities described in
the Residential and Golf Course Market Analysis and Revenue Projection
prepared by THK Associates Inc. (the "Recreational Facilities"), dated
February 12, 1996, and diligently proceed to complete the Recreational
Facilities.
(iii) MAINTENANCE OF PROPERTIES. Maintain and preserve all of its
properties which are used or which are useful in the conduct of its
business in good working order and condition, ordinary wear and tear
excepted.
(iv) AMENDMENTS OR MODIFICATIONS OF RELATED DOCUMENTS. Not
amend, modify or supplement, nor agree or consent to any amendment or
modification of, or supplement to, any of the Related Documents without
the prior written consent of the Credit Enhancement Provider.
(v) MAINTENANCE OF EXISTENCE. Maintain its existence as a
nonprofit corporation under the laws of the State of Colorado.
(vi) FINANCIAL INFORMATION. Keep proper books of record and
account in which full, true and correct entries will be made of all
dealings or transactions of or in relation to the business and affairs
of the Authority in accordance with generally accepted accounting
principles, and will furnish, or cause to be furnished, to the Credit
Enhancement Provider:
(A) within 180 days after the last day of each fiscal year
of the Authority, a balance sheet of the Authority as of the end of
such fiscal year and statements of revenues, expenditure, and
changes in fund balance and of operations and changes in financial
position for such fiscal year, each prepared in accordance with
generally accepted accounting principles consistently applied, in
reasonable detail and certified by an independent certified public
accountant;
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(B) within 180 days after the last day of each fiscal year
of the Authority, a certificate signed by a qualified officer of
the Authority stating that the signer of the certificate has made a
review of the activities of the Authority during the preceding
fiscal year for the purpose of determining whether or not the
Authority has complied with all of the terms, provisions and
conditions of this Agreement and the Related Documents and to the
best knowledge of such signer the Authority has kept, observed,
performed and fulfilled each and every covenant, provision and
condition of this Agreement and the Related Documents on its part
to be performed and is not in default in the performance or
observance of any of the terms, covenants, provisions or conditions
hereof, or if the Authority shall be in default, such certificate
shall specify all such defaults and the nature and status thereof
of which the signer of the certificate shall have knowledge; and
(C) on or before December 15 of each year, a copy of (1)
the Authority's annual budget evidencing the amounts due under the
Development Agreement, the Operating Agreement and the
Intergovernmental Agreement, (2) the annual mill levy certification
of each of Xxxxxx Ridge Metropolitan Districts Nos. 1-5 (the
"Districts") required to be filed with the Board of County
Commissioners of Xxxxxxx County, Colorado (the "County") showing an
annual levy sufficient to pay obligations arising under the
Operating Agreement for the following fiscal year (subject to the
limitations of the Operating Agreement and the Intergovernmental
Agreement), and (3) (x) the determination of the assessed value of
property within the Authority, (y) the determination of the
estimated actual value of such property based on such assessed
value, and (z) a statement of the amount of ad valorem tax as
actually collected by the District.
(vii) ADDITIONAL DEBT. The Authority will not issue or incur
any additional indebtedness without the consent of the Credit Enhancement
Provider, in its sole discretion, except for obligations issued or
incurred as provided in the Indenture to finance the Recreational
Facilities which are subordinate to the Bonds and to the obligations of
the Authority under this Reimbursement Agreement and the Reimbursement
Agreement Promissory Note.
(viii) CHARGES. The Authority covenants and agrees that, unless
otherwise consented to by the Credit Enhancement Provider, it shall fix,
charge and collect, or cause to be fixed, charged and collected, subject
to applicable requirements or restrictions imposed by law, such rates,
fees, or charges for use of the Project (as defined in the Operating
Agreement) which, together with all other anticipated receipts and
revenues of the Authority and any other funds available therefor, will be
budgeted for the next Fiscal Year to be sufficient to
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produce Net Income Available for Debt Service (as defined in the
Indenture) equal to at least one and thirty-hundredths (1.30) times
Aggregate Annual Debt Service (as defined in the Indenture) for all Bonds
then outstanding for the next Fiscal Year.
(c) The Authority hereby agrees that the Credit Enhancement Provider
shall be fully subrogated to the rights of the owners of Bonds under the
Indenture with respect to which payments of principal or interest have been
made from Credit Payments and the Credit Enhancement Provider may enforce the
payment of such principal and interest against the Authority to the same
extent and in the same manner as if the Credit Enhancement Provider were the
owner of the principal or interest with respect to which payments were made.
SECTION 6. EVENTS OF DEFAULT. The occurrence of any of the following
events (including the expiration of any specified time) shall constitute an
"Event of Default":
(a) any representation or warranty made by the Authority herein or in
any Related Document or in any certificate, financial or other statement
furnished by the Authority pursuant to this Agreement or any Related Document
shall prove to have been untrue or incomplete in any material respect when
made; or
(b) failure of the Authority to observe or perform any of the other
covenants, conditions or provisions of this Agreement, and such failure
continues for ten (10) days after notice from the Credit Enhancement Provider
to the Authority; or
(c) the occurrence of default under the Indenture and such default
continues for a period of ten days, or the occurrence of a default and the
lapse of any applicable grace period under any other Related Document to which
the Authority is a party; or
(d) this Agreement or any of the Bond Documents or the Related Documents
to which the Authority is a party ceases to be valid and binding on the
Authority; or
(e) the Authority shall (1) apply for or consent to or acquiesce in the
appointment of a receiver, trustee, liquidator or custodian or the like of
itself or of all or a substantial portion of its property or any such
receiver, trustee, liquidator or custodian or the like shall have been
appointed, (2) admit in writing its inability to pay or fail to pay its debts
generally as they become due, (3) make a general assignment for the benefit of
creditors, (4) call a meeting of its creditors for the purpose of adjusting
its debts generally or to effect a composition of its debts, (5) be
adjudicated a bankrupt or insolvent, (6) commence a voluntary case under the
Federal bankruptcy laws of the United States of America or file a voluntary
petition or answer seeking reorganization, an arrangement with creditors or an
order for relief or seeking to take advantage of any insolvency law or file an
answer admitting the material allegations of a petition filed against it in
any bankruptcy, reorganization or insolvency proceeding, or action shall be
taken by it for the purpose of effecting any of the foregoing, or (7) if
without the application, approval or consent of the Authority or any of the
Related Districts as the case may be, a proceeding shall
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be instituted in any court of competent jurisdiction, under any law relating
to bankruptcy, insolvency, reorganization or relief of debtors, or any
administrative action shall be taken by any regulatory authority, seeking in
respect of the Authority or any of the Related Districts as the case may
be, an order for relief or an adjudication in bankruptcy, reorganization,
dissolution, winding up, liquidation, a composition or arrangement with
creditors, a readjustment of debts, or the appointment of a trustee,
receiver, liquidator or custodian or the like of the Authority or any of the
Related Districts as the case may be, or of all or any substantial part of
its assets, or other like relief in respect thereof under any bankruptcy or
insolvency law, and, if such proceeding or administrative action is being
contested by the Authority or any of the Related Districts as the case may
be, in good faith, the same shall (A) result in the entry of an order for
relief or any such adjudication or appointment or (B) continue undismissed,
or pending and unstayed, for any period of thirty (30) consecutive days; or
(f) the Authority shall fail to pay any amounts due under Section
1 hereof on demand.
SECTION 7. REMEDIES. Upon the occurrence of an Event of Default, the
Credit Enhancement Provider may, in addition to any other remedies available
to it at law or in equity and subject to applicable limitation of law,
exercise any one or more of the following remedies:
(a) Foreclose on the Deed of Trust, subject to the limitations
therein.
(b) Proceed by mandamus or any other suit, action or proceeding at
law or in equity, to enforce all of its rights hereunder and to carry out the
covenants and agreements of the Authority.
(c) By action or suit in equity, require the Authority to account
as if it were the trustee of an express trust for the Credit Enhancement
Provider.
(d) By action or suit in equity, enjoin any acts or things which
may be unlawful or in violation of the rights of the Credit Enhancement
Provider.
(e) Subject to the conditions of Section 1(a) of this Agreement,
by written notice to the Authority declare all obligations of the Authority
under this Agreement to be immediately due and payable, including all amounts
which could have or will become due upon any drawing under the Credit
Enhancement, whereupon such obligations shall become immediately due and
payable.
(f) Take whatever action at law or in equity that may appear
necessary or appropriate to collect any amount due or thereafter to become
due, or to enforce performance
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and observance of any obligation, agreement or covenant of the Authority
hereunder or under any other Related Document.
The rights and remedies of the Credit Enhancement Provider specified
herein are for the sole and exclusive benefit, use and protection of the
Credit Enhancement Provider, and Credit Enhancement Provider may, but shall
have no duty or obligation to the Authority, the Trustee, the owners of any
of the Bonds or otherwise, (i) to exercise or to refrain from exercising any
right or remedy reserved to the Credit Enhancement Provider hereunder, or
(ii) to cause the Trustee or any other party to exercise or to refrain from
exercising any right or remedy available to them under any of the Related
Documents or otherwise. The foregoing provisions of this Section are subject
to limitations that the Credit Enhancement Provider will take no action in
the exercise of remedies herein unless the Credit Enhancement Provider has
delivered to the Trustee an opinion of Bond Counsel (as defined in the
Indenture) that such action shall not cause interest on the Bonds to become
subject to inclusion in gross income for federal income tax purposes to the
holders of the Bonds.
SECTION 8. AMENDMENTS, ETC. No amendment to this Agreement shall be
effective unless the same is in writing and signed by all the parties hereto.
No waiver of any provision of this Agreement nor any consent to any departure
by the Authority therefrom shall in any event be effective unless the same
shall be in writing and signed by the Credit Enhancement Provider, and then
such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given. Nothing in this Agreement shall be
construed to create any rights of a third party beneficiary in any person
with respect to the covenants and obligations herein provided.
SECTION 9. ADDRESSES FOR NOTICES. All notices and other communications
provided for hereunder shall be in writing and, if to the Authority,
addressed to it as follows:
Authority: x/x X. Xxxxx Xxxxxxxxxxxx
Xxxxxxxxx Xxxxx XXX Suite 902
0000 X. Xxxxxx Xxxxxx Xxxxxxx
Xxxxxx, Xxxxxxxx 00000
FAX: (000) 000-0000
PH: (000) 000-0000
Credit Enhancement
Provider: 0000 Xxxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, X.X. 00000
FAX: (000) 000-0000
PH: (000) 000-0000
or as to each party at such other address as shall be designated by such
party in a written notice to the other party.
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SECTION 10. NO WAIVER; REMEDIES. No failure on the part of the Credit
Enhancement Provider to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right hereunder preclude any other further exercise thereof
or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 11. SET-OFF. Whenever an Event of Default shall have occurred
and be continuing, the Authority hereby irrevocably authorized the Credit
Enhancement Provider to set-off the indebtedness owed by the Authority to the
Credit Enhancement Provider under this Agreement, including any contingent
indebtedness of the Authority with respect to the Credit Enhancement, against
all deposits and credits of the Authority with, and any and all claims of the
Authority against, the Credit Enhancement Provider, whether or not said
indebtedness of the Authority, or any part thereof, shall be then due. No
such set-off right shall reduce the Credit Enhancement Provider's obligations
under the Credit Enhancement.
SECTION 12. INDEMNIFICATION. To the extent permitted by law, the
Authority hereby indemnifies and holds harmless the Credit Enhancement
Provider from and against any and all claims, damages, losses, liabilities,
reasonable costs or expenses whatsoever (including attorneys fees) which the
Credit Enhancement Provider may incur (or which may be claimed against the
Credit Enhancement Provider by any person or entity whatsoever) by reason of
or in connection with (a) the execution and delivery or transfer of, or
payment or failure to pay under, the Credit Enhancement, or (b) the issuance
and sale of the Bonds; PROVIDED, that the Authority shall not be required to
indemnify the Credit Enhancement Provider for any claims, damages, losses,
liabilities, costs or expenses to the extent, but only to the extent, caused
by the willful misconduct or gross negligence of the Credit Enhancement
Provider. However, nothing in this Section 12 (including specifically, the
proviso clause of the preceding sentence) is intended to limit the
obligations of the Authority contained in Section 1 hereof, which are
absolute, unconditional and irrevocable.
SECTION 13, CONTINUING OBLIGATION. This Agreement is a continuing
obligation, shall survive the termination of the Credit Enhancement, and
shall (a) be binding upon the Authority and its respective successors and
assigns, and (b) inure to the benefit of and be enforceable by the Credit
Enhancement Provider and its successors, transferees and assigns, PROVIDED,
that the Authority may not assign all or any part of this Agreement without
the prior written consent of the Credit Enhancement Provider.
SECTION 14. TRANSFER OF CREDIT ENHANCEMENT. The Credit Enhancement and
the Collateral may be transferred and retransferred to any successor to the
Trustee appointed in accordance with the provisions of the Indenture.
SECTION 15. LIABILITY OF THE CREDIT ENHANCEMENT PROVIDER. The
Authority assumes all risks of the acts or omission of the Trustee and the
REMIC Trustee and any transferee of the Credit Enhancement or the Collateral
with respect to its use of the Credit Enhancement or the Collateral. The
Authority agrees that neither the Credit Enhancement Provider nor any of
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its officers or directors shall be liable or responsible hereunder for: (a)
the use which may be made of the the Credit Enhancement or the Collateral or
for any acts or omissions of the Trustee or the REMIC Trustee and any
transferee of the Trustee or the REMIC Trustee in connection therewith; (b)
the validity, sufficiency or genuineness of documents, or of any endorsement(s)
thereon, other than with respect to the Credit Enhancement Provider, even if
such documents should in fact prove to be in any or all respects invalid,
insufficient, fraudulent or forged; or (c) payments by the Credit Enhancement
Provider which are not in compliance with the terms of the Credit Enhancement
or the Pledge.
SECTION 16. NO OFFICER OR DIRECTOR LIABILITY. Notwithstanding anything
contained herein, the Credit Enhancement Provider acknowledges and agrees
that no covenant, agreement or obligation of the Authority hereunder shall be
deemed to be a covenant, agreement or obligation of any present or future
director or officer of the Authority in his or her individual capacity, and
neither the members of the governing body of the Authority nor any director
or officer who has executed this Agreement or any amendment or addendum
thereto shall be liable personally thereon or be subject to any personal
liability by reason thereof.
SECTION 17. DEFINITIONS. In addition to terms defined at other places
in this Agreement, the following defined terms are used throughout this
Agreement with the following meanings:
"Business Day" means any date which is not a Saturday or Sunday or is not
a day on which banking institutions located in Denver, Colorado or in the city
in which the Trustee's principal corporate trust office or operations center is
located are required or authorized by law to remain closed.
"Unmatured Event of Default" means an event which, with the giving of
notice, the lapse of time or both, would become an Event of Default.
SECTION 18. NATURE OF AUTHORITY LIABILITY. The obligations of the
Authority hereunder are general obligations to which the Authority has
pledged the Revenue, pursuant to Section 1(e) hereof. Notwithstanding
anything to the contrary herein set forth, neither the officers, directors,
employees or agents of the Authority nor their heirs, successors or assigns,
shall have any personal liability for payment or performance of the covenants
set forth herein in the Reimbursement Agreement Promissory Note or in any
other instrument securing the indebtedness created hereunder, and the Credit
Enhancement Provider agrees not to assert or claim a deficiency or other
personal money judgment against the officers, directors, employees or agents
of the Authority or their heirs, successors or assigns. The foregoing shall
not be deemed or construed to be a release of the indebtedness herein
described or in any way to impair, limit or otherwise affect the liens of the
Deed of Trust or of any such other instrument on the property, funds or
rights covered thereby as security for the payment of the indebtedness herein
described and for the performance of the covenants herein or in the
Reimbursement Agreement Promissory Note, or prevent the Credit Enhancement
Provider from naming the Authority, its officers and directors, or their
successors or assigns as a defendant in any action to enforce any remedy for
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a default, so long as no personal or deficiency money judgment is sought or
entered therein against the officers and directors of the Authority, or their
successors or assigns for amounts due hereunder or under the Reimbursement
Agreement Promissory Note.
SECTION 19. SEVERABILITY. Any provision of this Agreement which is
prohibited, unenforceable or not authorized in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or nonauthorization without invalidating the remaining
provisions hereof or affecting the validity, enforceability or legality of
such provision in any other jurisdiction.
SECTION 20. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the law of the State of Colorado.
SECTION 21. HEADINGS. Section headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of
this Agreement for any other purpose.
[Balance of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first above written.
CASTLE ROCK RANCH IMPROVEMENTS AUTHORITY
By: /s/ C. XXXXX XXXXXXXXXXXX
-------------------------------------
Name: C. Xxxxx Xxxxxxxxxxxx
Title: President
BFC GUARANTY CORP.
By: /s/ XXXXXXXX X. XXXXX
-------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: President
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