HomeMy WebLinkAbout05578ORDINANCE NO. 55 78
AN ORDINANCE CONCERNING THE FINANCING OF THE
ACQUISITION OF CERTAIN REAL PROPERTY FOR PUBLIC WORKS
AND TRANSPORTATION PURPOSES; AUTHORIZING AND APPROVING
THE ISSUANCE OF CERTAIN CERTIFICATES OF PARTICIPATION;
APPOINTING MEMBERS TO THE INITIAL BOARD OF DIRECTORS
OF THE CITY OF PUEBLO, COLORADO MUNICIPAL BUILDING
CORPORATION; AND AUTHORIZING AND APPROVING A CONTRACT
TO PURCHASE SAID REAL PROPERTY, A LEASE PURCHASE
AGREEMENT, A MORTGAGE AND INDENTURE OF TRUST, AND
OTHER RELATED DOCUMENTS AND ACTIONS IN CONNECTION
THEREWITH
WHEREAS, the City of Pueblo, Colorado (the "City "), is
authorized, pursuant to the home rule Charter of the City (the
"Charter ") to enter into lease and lease purchase agreements in
order to provide lands and facilities for public works and
transportation purposes; and
WHEREAS, the City Council of the City (the "City Council ")
has determined, and hereby determines, that the City is in need
of an additional public works and transportation facility (the
"Facility "); and
WHEREAS, the City Council has determined, and hereby
determines, that it is necessary and in the best interests of
the City and its residents that the Facility be provided on a
certain parcel of land identified as 108 -132 S. Main Street and
101 -131 S. Oneida in the City, including the improvements
thereon (the "Site ") currently owned by The Weicker Investment
Company (the "Seller "); and
WHEREAS, for purposes of financing the acquisition of the
Facility, the City Council has determined, and hereby
determines, that it is in the best interests of the City and its
residents that the City lease the Site from the City of Pueblo,
Colorado Municipal Building Corporation ( "PMBC") pursuant to
that certain annually renewable Lease Purchase Agreement (the
"Lease "), presented to this meeting of the City Council; and
WHEREAS, there has also been presented to this meeting of
the City Council a certain Mortgage and Indenture of Trust (the
"Indenture ") to be entered into between PMBC and The Pueblo Bank
and Trust Company, as trustee (the "Trustee "); and
WHEREAS, Certificate of Participation (the "Certificates"
will be sold to the Seller in consideration for the conveyance
of the Site to PMBC, pursuant to the Indenture, the Lease and
the contract to purchase the Site between the City and the
Seller (the "Agreement "), which Agreement will be assigned by
the City to PMBC and which Agreement has also been presented to
this meeting of the City Council for approval; and
WHEREAS, the City has determined that it should appoint the
members of the initial Board of Directors of PMBC.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF
PUEBLO:
Section 1 . All action heretofore taken (not inconsistent
with the provisions of this ordinance) by the City Council or
the officers or employees of the City, directed toward the
acquisition of the Site by the City, is hereby ratified,
approved and confirmed.
Section 2 . The City Council hereby finds and determines,
pursuant to the provisions of the Charter, that (i) acquisition
of the Site by PMBC pursuant to the Agreement; (ii) acquiring
the Facility; and (iii) leasing the Site from PMBC, all under
the terms and provisions set forth in the Agreement and the
Lease, are necessary, convenient and in furtherance of the
governmental purposes of the City and are in the best interests
of the City; and the City Council hereby authorizes such
acquisition of the Site and the leasing of it under the terms
and provisions of the Agreement and the Lease.
Section 3 . The Agreement and the Lease, in substantially
the forms presented to this meeting of the City Council and with
substantially the same content, are in all respects approved,
authorized and confirmed, and the President or Vice President of
the City Council is authorized and directed to affix his
signature to the Agreement and the Lease in substantially the
forms and with substantially the same content as presented to
this meeting of the City Council, for and on behalf of the City,
but with such changes, modifications, additions or deletions
therein as the President of the City Council and the City
Attorney shall deem necessary, desirable or appropriate, the
execution thereof to constitute conclusive evidence of their
approval of any and all changes, modifications, additions or
deletions therein from the form and content of the Agreement and
the Lease presented to this meeting.
Section 4 . The City Council hereby approves the execution
and delivery by PMBC and the Trustee of the Indenture, in
substantially the form and with substantially the same content
as presented to this meeting of the City Council, but with such
changes, modifications, additions or deletions therein as the
President of the City Council and the City Attorney shall deem
necessary, desirable or appropriate, the City Attorney's release
of his opinion in connection with the sale and delivery of the
Certificates to constitute conclusive evidence of such approval.
Section 5 . The City Council hereby acknowledges and
consents to the assignment by PMBC to the Trustee, pursuant to
the Indenture, of all rights, title and interest of PMBC in, to
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and under the Lease (with certain exceptions as provided in the
Lease and the Indenture) and the delegation by PMBC to the
Trustee, pursuant to the Indenture, of all duties of PMBC under
the Lease.
Section 6 . The City Council hereby authorizes and consents
to the issuance and sale of the Certificates pursuant to the
Indenture. The City Council hereby authorizes and approves the
form, terms and provisions of the Certificates contained in the
Indenture, in substantially the form and with substantially the
same content as that presented to this meeting of the City
Council. The City Clerk and the President of the City Council
are hereby authorized and directed to affix their facsimile
signatures and the City seal, or a facsimile thereof, to
authenticate and execute the Certificates, as provided in the
Lease and the Indenture.
The City Council hereby authorizes, approves and directs
the sale of the Certificates to the Seller in consideration of
the Seller conveying the Site to PMBC.
Section 7 . The City Council hereby authorizes and approves
(a) the assignment to PMBC of all of the City's right, title and
interest in and to the Agreement, (b) the acquisition of the
Site by PMBC from the Seller pursuant to the Agreement in fee
simple title without exceptions, restrictions, easements,
rights -of -way, liens or encumbrances, except as may be approved
by the President of the City Council and the City Attorney, and
(c) the execution and delivery of any and all documents
necessary or desirable to accomplish such acquisition.
Section 8 . The City Council hereby appoints Billy G.
Martin, John A. Califano and Fay Kastelic to serve as members of
the initial board of directors of the City of Pueblo, Colorado
Municipal Building Corporation.
Section 9 . The City Clerk is hereby authorized and
directed to attest all signatures and acts of any official of
the City Council or the City in connection with the matters
authorized by this ordinance, and to place the seal of the City
on the Lease authorized and approved by this ordinance. The
President or Vice President of the City Council and other
officials of the City Council or the City are hereby authorized
to execute and deliver for and on behalf of the City any and all
additional certificates, documents and other papers and to
perform all other acts that they deem necessary or appropriate
in order to implement and carry out the transactions and other
matters authorized and contemplated by this ordinance.
Section 10 . NO PROVISION OF THIS ORDINANCE, THE AGREEMENT,
THE LEASE, THE INDENTURE, OR THE CERTIFICATES SHALL BE CONSTRUED
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AS CREATING OR CONSTITUTING A GENERAL OBLIGATION OR OTHER
INDEBTEDNESS OF THE CITY OR A MANDATORY PAYMENT OBLIGATION OF
THE CITY IN ANY FISCAL YEAR BEYOND A FISCAL YEAR FOR WHICH THE
CITY HAS APPROPRIATED AMOUNTS TO MAKE PAYMENTS UNDER THE LEASE.
THE CITY SHALL HAVE NO OBLIGATION TO MAKE ANY PAYMENT WITH
RESPECT TO THE CERTIFICATES EXCEPT IN CONNECTION WITH THE
PAYMENT OF THE BASE RENTALS AND ADDITIONAL RENTALS (AS DEFINED
IN THE LEASE) AND CERTAIN OTHER PAYMENTS UNDER THE LEASE, WHICH
PAYMENTS MAY BE TERMINATED BY THE CITY IN ACCORDANCE WITH THE
PROVISIONS OF THE LEASE.
Section 11 . The City Council hereby determines and
declares that the Base Rentals represent the fair value of the
use of the Facility; and that the Purchase Option Price (as
defined in the Lease) represents the fair purchase price of the
Facility. The City Council hereby determines and declares that
the Base Rentals do not exceed a reasonable amount so as to
place the City under an economic or practical compulsion to
renew the Lease or to exercise its option to purchase the
Facility pursuant to the Lease. In making such determinations,
the City Council has given consideration to the value of the
Site, the uses and purposes for which the Facility will be
employed by the City, the benefit to the citizens and residents
of the City by reason of the acquisition of the Facility and the
use of the Facility pursuant to the terms and provisions of the
Lease, the option of the City to purchase the Facility, and the
expected eventual vesting of the title to the Facility in the
City. The City Council hereby determines and declares that the
acquisition of the Facility and the leasing of the Facility
pursuant to the Lease will result in facilities of comparable
quality and meeting the same requirements and standards as would
be necessary if the acquisition of the Facility were performed
by the City other than pursuant to the Lease. The City Council
hereby determines and declares that the period during which the
City has an option to purchase the Facility (that is, the
maximum term of the Lease, including all Renewal Terms) does not
exceed the useful life of the Facility.
Section 12 . If any section, paragraph, clause or provision
of this ordinance (other than provisions as to the payment of
Base Rentals by the City during the Lease Term and provisions
for the conveyance of the Facility to the City under the
conditions provided in the Lease) shall for any reason be held
to be invalid or unenforceable, the invalidity or
unenforceability of such section, paragraph, clause or provision
shall not affect any of the remaining provisions of this
ordinance.
Section 13 . All bylaws, orders and ordinances, or parts
thereof, inconsistent with this ordinance or with any of the
documents hereby approved, are hereby repealed only to the
extent of such inconsistency. This repealer shall not be
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construed as reviving any bylaw, order or ordinance, or part
thereof.
INTRODUCED JANUARY 8, 1990
By: KENNETH HUNTER
Counci person
APPROVED:
*Pe .i en�,C ity Counci
Attest:
APPROVED AS TO FORM BY
CITY ATTORNEY:
74;
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City Att r
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APPROVED AS TO FORM BY
CITY ATTORNEY:
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City Att r
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BERK0WITZ, BRADY & BACKUS
DRAFTDATF--
SUBJECT TO VERMCATION AND CHANGE
CITY OF PUEBLO, COLORADO MUNICIPAL BUILDING CORPORATION,
A Colorado Nonprofit Corporation,
AS LESSOR
and
CITY OF PUEBLO, COLORADO
AS LESSEE
PUBLIC WORKS LEASE PURCHASE AGREEMENT
(With Authorization for Certificates of Participation in
the Aggregate Principal Amount of $565,000 Evidencing
Assignments of Proportionate Undivided Interests
in Rights to Receive Certain Payments Hereunder)
Dated as of February 1, 1990
The interest of the City of Pueblo, Colorado Municipal Building
Corporation in this Lease Purchase Agreement (with certain
exceptions) has been assigned to The Pueblo Bank and Trust
Company, as Trustee under the Mortgage and Indenture of Trust
dated as of February 1, 1990, from City of Pueblo, Colorado
Municipal Building Corporation to The Pueblo Bank and Trust
Company, as Trustee, and is subject to the security interest of
The Pueblo Bank and Trust Company, as Trustee.
TABLE OF CONTENTS
(This Table of Contents is not a part of this Lease
Purchase Agreement and is only for convenience of reference)
Page
PREAMBLES .................. ............................... 1
ARTICLE I
DEFINITIONS ................ ............................... 3
ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES
Section 2.1. Representations, Covenants and
Warranties of the City ..................... 8
Section 2.2. Representations, Covenants and
Warrantiesof Lessor ....................... 9
ARTICLE III
DEMISING CLAUSE ............ ............................... 10
ARTICLE IV
LEASE TERM
Section 4.1. Commencement of Lease Term; Renewals ....... 10
Section 4.2 Termination of Lease Term .................. 11
ARTICLE V
ENJOYMENT OF SITE AND PROJECT ............................. 12
ARTICLE VI
PAYMENTS BY THE CITY
Section
6.1
Payments to Constitute Currently
Budgeted Expenditures of the City ..........
13
Section
6.2.
Base Rentals and Additional Rentals ........
13
Section
Section
6.3.
6.4.
Interest Component .........................
Manner of Payment
14
Section
6.5.
........ . .. ........
Expression of the City's Need for the
14
Project; Determinations as to Fair
Market Value and Fair Purchase Price .......
15
Section
6.6.
Nonappropriation .... .. ..................
15
Section
6.7.
Disposition of Base Rentals
................
16
i
Page
ARTICLE VII
CONSTRUCTION OF THE PROJECT
Section 7.1. Acquisition of the Site .................... 17
ARTICLE VIII
TITLE TO THE PROJECT;
LIMITATIONS ON ENCUMBRANCES
Section 8.1. Title to the Project ....... ... ....... 17
Section 8.2. No Encumbrance, Mortgage or Pledge of
Project ............................... 17
ARTICLE IX
MAINTENANCE, TAXES,
INSURANCE AND OTHER CHARGES
Section 9.1.
Maintenance of the Project by the City .....
18
Section 9.2.
Modification of the Project;
10.2.
Obligation of the City to Repair and
Installation of Furnishings and
Section
Section 9.3.
Machinery of the City .....................
Taxes, Other Governmental Charges and
18
Section 9.4.
Utility Charges .... .... ...... ..........
Provisions Regarding Casualty, Public
19
Liability and Property Damage Insurance ....
20
Section9.5.
Advances .... ...............................
21
ARTICLE X
DAMAGE, DESTRUCTION AND CONDEMNATION;
USE OF NET PROCEEDS
Section
10.1.
Damage, Destruction and Condemnation .......
22
Section
10.2.
Obligation of the City to Repair and
Section
10.3.
Replace the Project ........................
Insufficiency of Net Proceeds; Discharge
22
of the Obligation of the City to Repair
Section
10.4.
orReplace Project .........................
Cooperation of Lessor ......................
22
24
ARTICLE XI
DISCLAIMER OF WARRANTIES; OTHER COVENANTS
Section
11.1.
Disclaimer of Warranties
24
Section
11.2.
...................
Further Assurances and Corrective
Section
11.3.
Instruments ..... . ....
Lessor, City and TrusteeRepresentatives
24
24
Section
11.4.
Granting of Easements
......................
25
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Pane
Section
11.5.
Compliance with Requirements ...............
25
Section
11.6.
City Acknowledgment of the Indenture
30
Section
11.7.
and the Certificates .......................
Tax Covenants . .. .. ..................
25
26
Section
11.8.
Designation of the Certificates as
31
Section14.5.
Section
14.6.
Qualified Tax - Exempt Obligations ...........
26
ARTICLE XII
CONVEYANCE OF THE PROJECT
Section 12.1. Conveyance of the Project .................. 26
Section 12.2. Manner of Conveyance .. . ............... 27
Section 12.3. Escrowed Deed and Bill of Sale ............. 27
ARTICLE XIII
ASSIGNMENT, SUBLEASING,
INDEMNIFICATION, MORTGAGING AND SELLING
Section 13.1. Assignment by Lessor; Replacement of
Lessor ...... ... .. .. ......... 27
...... . .. .. ...
Section 13.2. Assignment and Subleasing by the City ...... 28
Section 13.3. Release and Indemnification Covenants ...... 28
Section 13.4. Restrictions on Mortgage or Sale
ofProject .. ............................... 29
ARTICLE XIV
EVENTS OF DEFAULT AND REMEDIES
Section
14.1.
Events of Default Defined ..................
29
Section
14.2.
Remedies on Default .......................
30
Section
14.3.
Limitations on Remedies ....................
31
Section
14.4.
No Remedy Exclusive ........................
31
Section14.5.
Section
14.6.
Waivers .................... ..............
Agreement to Pay Attorneys Fees
31
Section
14.7.
andExpenses .. ........ .. .............
Waiver of Appraisement, Valuation,
32
Stayand Extension .........................
32
ARTICLE XV
MISCELLANEOUS
Section
15.1.
Notices
32
Section
15.2.
Binding Effect ....... .. ...
32
Section
15.3.
..........
Amendments, Changes and Modifications ......
33
Section
15.4.
Amounts Remaining in Funds .................
33
Section15.5.
Section
15.6.
Net Lease ..................................
Payments Due on Holidays ...................
33
33
Section
15.7.
Severability
...............................
33
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Page
Section 15.8. Execution in Counterparts .................. 33
Section 15.9 Applicable Law 34
Section 15.10. Captions .... ............................... 34
TESTIMONIUM . . .............
34
SIGNATURES AND SEALS ....................... 35
ACKNOWLEDGMENTS ............ ............................... 35
EXHIBIT A -- Description of the Site A -1
EXHIBIT B-- Schedule of Base Rentals ... . .. . B -1
EXHIBIT C-- Schedule of Certain Permitted Encumbrances..... C -1
iv
PUBLIC WORKS LEASE PURCHASE
THIS PUBLIC WORKS LEASE PURCHASE AGREEMENT dated as of
February 1, 1990 (together with any amendments hereto made in
accordance herewith, this "Lease "), entered into by and between
the CITY OF PUEBLO, COLORADO MUNICIPAL BUILDING CORPORATION, as
the lessor hereunder (the "Lessor "), a nonprofit corporation
duly organized, existing and in good standing under the laws of
the State of Colorado, and the CITY OF PUEBLO, COLORADO (the
"City"), as lessee hereunder, a home rule municipality, caul
organized under Article XX of the Constitution of the State of
Colorado (the "State ") and the Home Rule Charter (the "Charter ")
of the City;
W I T N E S S E T H:
WHEREAS, the City is a duly and regularly created,
organized and existing home rule municipality, existing as such
under and by virtue of Article XX of the Constitution of the
State and the Charter of the City; and
WHEREAS, the City Council of the City (the "City Council ")
has the power, pursuant to Sections 1 -3 and 3 -9 of the Charter,
to enter into lease and lease purchase agreements in order to
provide for the financing of lands and facilities for public
works and transportation purposes; and
WHEREAS, the City Council also has the power, pursuant to
Sections 1 -3 and 3 -9 of the Charter, to purchase real and
personal property and to sell and convey real and personal
property of the City upon such terms and conditions as the City
Council may approve; and
WHEREAS, the City Council has determined, and hereby
determines, that the City is in need of a new public works and
transportation facility (the "Facility "); and
WHEREAS, the City Council has determined, and hereby
determines, that it is necessary and in the best interests of
the City that the Facility be constructed, acquired and equipped
on a certain parcel of land (the "Site ") owned by the Lessor;
and
WHEREAS, for purposes of providing for the City's
acquisition of the Facility, the City Council has determined and
hereby determines that it is in the best interests of the City
that the City and the Lessor enter into this Lease to provide
for the acquisition of the Facility and the Site by the City
(the Facility and the Site are hereinafter collectively referred
to as the "Project "); and
WHEREAS, the Lessor is a nonprofit corporation, duly
organized, existing and in good standing under the laws of the
State of Colorado, and is duly qualified to do business in the
State of Colorado; and under its articles and bylaws, the Lessor
is authorized to own and hold or lease real and personal
property and to lease the same as lessor and to act in the
manner contemplated herein; and
WHEREAS, pursuant to a certain Mortgage and Indenture of
Trust of even date herewith (the "Indenture "), by and between
the Lessor and The Pueblo Bank and Trust Company, as trustee
(the "Trustee "), the Lessor will assign all of its rights, title
and interest in, to and under this Lease ( except the rights of
the lessor under Sections 13.3 and 14.6 of this Lease) to the
Trustee; and
WHEREAS, there are being issued, pursuant to the Indenture,
Certificates of Participation (the "Certificates ") evidencing
assignments of proportionate undivided interests in rights to
receive certain payments under this Lease; and
WHEREAS, the Certificates will be sold by the Lessor to the
company which conveyed the Site to the Lessor, in consideration
of such conveyance.
WHEREAS, the obligation of the City to pay Base Rentals and
Additional Rentals (both as hereinafter defined) hereunder shall
be from year to year only; shall constitute currently budgeted
expenditures of the City; shall not constitute a mandatory
charge or requirement in any ensuing budget year; and shall not
constitute a general obligation or other indebtedness of the
City within the meaning of any constitutional, statutory or
Charter limitation or requirement concerning the creation of
indebtedness, nor a mandatory payment obligation of the City in
any ensuing fiscal year beyond any fiscal year during which this
Lease shall be in effect; and
WHEREAS, the Certificates shall evidence assignments of
proportionate undivided interests in the Revenues (as
hereinafter defined), shall be payable solely from the sources
herein provided, and shall not constitute a general obligation
or other indebtedness of the City within the meaning of any
constitutional, statutory or Charter limitation or requirement
concerning the creation of indebtedness, nor a mandatory payment
obligation of the City in any ensuing fiscal year beyond the
current fiscal year; and
WHEREAS, neither this Lease nor the issuance of the
Certificates shall directly or indirectly obligate the City to
make any payments beyond those appropriated for any fiscal year
during which this Lease shall be in effect; and
WHEREAS, the acquisition of the Project, and the execution,
performance and delivery of this Lease, have been authorized,
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approved and directed by the City Council by an ordinance
adopted by the City Council; and
WHEREAS, the execution, delivery and performance of this
Lease by the Lessor, and the assignment by the Lessor to the
Trustee, pursuant to the Indenture, of all rights, title and
interest of the Lessor in, to and under this Lease ( except the
rights of the Lessor under Sections 13.3 and 14.6 of this
Lease), have been authorized, approved and directed by all
necessary and appropriate action of the Lessor, its board of
directors and its officers; and
WHEREAS, the Lessor desires to lease the Project to the
City, and the City desires to lease the Project from the Lessor,
pursuant to the terms and conditions and for the purpose set
forth herein;
NOW, THEREFORE, for and in consideration of the mutual
promises and covenants herein contained, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
All words and phrases defined in Article I of the Indenture
shall have the same meaning in this Lease. In addition, the
following terms will have the meanings specified below unless
the context clearly requires otherwise:
"Additional Rentals" means the cost of all taxes, insurance
premiums, expenses and fees of the Trustee, utility charges,
costs of maintenance, upkeep and repair, amounts required to be
deposited in the Rebate Fund, and all charges or costs which the
City assumes or agrees to pay hereunder with respect to the
Project, other than Base Rentals (together with interest that
may accrue thereon in the event that the City shall fail to pay
the same, as set forth herein), including but not limited to
costs and expenses charged to or incurred by the Lessor at the
request of the City and in its capacity as Lessor hereunder.
"Base Rentals" means the payments payable by the City
pursuant to Section 6.2 of this Lease and Exhibit B hereto,
during the Original Term and any Renewal Term, which constitute
the payments payable for the City for and in consideration of
the right to use the Project during such Original Term or
Renewal Term.
"Base Rental Payment Date" means February 15 of each year,
commencing February 15, 1990.
"Business Day" means any day other than a Saturday, Sunday
or legal holiday or day on which banking institutions in the
city in which the Trustee has its principal corporate trust
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office or New York, New York are authorized or required by law
to close.
"Certificate Fund" means the special fund created under
Section 3.02 of the Indenture for the purpose of holding and
disbursing to the Participants the Base Rentals paid by the
City, and includes both the Principal Account and the Interest
Account thereof.
"Certificates of Participation" or "Certificates" means one
or more certificates or participation to be issued pursuant to
the Indenture evidencing assignments of proportionate undivided
interests in rights to receive Revenues.
"Charter" means the home rule Charter of the City, and any
amendments or supplements thereto.
"City" means City of Pueblo, Colorado or any successor to
its functions.
"City Council" means the City Council of the City or any
successor to its functions.
"City Representative" means the person at the time
designated to act on behalf of the City for the purpose of
performing any act under this Lease or the Indenture by a
written certificate furnished to the Trustee and the Lessor
containing the specimen signature of such person or persons and
signed on behalf of the City by the President or Vice President
of the City Council.
"Code" means the Internal Revenue Code of 1986, as amended.
"Event of Default" means one or more events of default as
defined in Section 14.1 of this Lease.
"Event of Nonappropriation" means a nonrenewal of this
Lease by the City, determined by the failure of the City
Council, for any reason, to budget and appropriate, specifically
with respect to this Lease, moneys sufficient to pay all Base
Rentals and reasonably estimated Additional Rentals, as provided
in Section 6.6 of this Lease.
"Expenses Fund" means the special fund created under and to
be disbursed as provided in Section 3.8 of the Indenture.
"Extraordinary Redemption Fund" means the special fund
created under Section 3.7 of the Indenture.
"Extraordinary Revenues" means (i) the Purchase Option
Price, if paid; (ii) all Net Proceeds, if any, of casualty
insurance, title insurance and condemnation awards, and not
applied to the repair, restoration, modification, improvement or
replacement of the Project, which are received pursuant to the
1XIM
provisions of this Lease, including but not limited to Section
10.3(b) hereof; and (iii) all Net Proceeds, if any, derived from
subleasing the Site or any portion thereof, and the leasing,
sale or assignment of the Trustee's interest in the Project,
pursuant to Sections 7.02 and 7.05 of the Indenture.
"Facility" means the City's public works and transportation
facility to be located on the Site.
" Force Maieure means, without limitation, the following:
acts of God; strikes, lockouts or other industrial disturbances;
acts of public enemies; orders of restraints of any kind of the
government of the United States of America or of the State or
any of their departments, agencies or officials or any civil or
military authority; insurrection; riots; landslides;
earthquakes; fires; storms; droughts; floods; explosions;
breakage or accidents to machinery, transmission pipes or
canals; or any other cause or event not within the control of
the Lessor or the City.
"Indenture" means that certain Mortgage and Indenture of
Trust of even date herewith between the Lessor and the Trustee,
and any amendments or supplements thereto.
"Independent Counsel" means an attorney duly admitted to
the practice of law before the highest court in the State of
Colorado and who is not an employee of the Lessor, the Trustee
or the City.
"Interest Payment Date" means February 15 of each year,
commencing February 15, 1990.
"Lease" means this Public Works Lease Purchase Agreement
and any amendments or supplements hereto, including the Exhibits
attached hereto.
"Lease Term" means the Original Term and any Renewal Terms
as to which the City may exercise its option to renew this
Lease, as further provided under Section 4.1 of this Lease;
subject to the terms and provisions of Sections 4.2, 6.1, 6.2
and 6.6 of this Lease. "Lease Term" refers to the time during
which the City is the lessee under the Lease; provided, however,
certain provisions of this Lease survive the termination of the
Lease Term, as further provided in Section 4.2 of this Lease.
"Lessor" means the City of Pueblo; Colorado Municipal
Building Corporation, a Colorado nonprofit corporation, acting
as lessor under this Lease and grantor under the Indenture, or
any successor thereto.
"Lessor Representative" means any of the following: (i the
Chairman or President of the Lessor; (ii) any Vice Chairman or
Vice President of the Lessor; (iii) any Secretary or Assistant
Secretary of the Lessor; or (iv) any other person or persons at
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the time designated to act on behalf of the Lessor for purposes
of performing any act on behalf of the Lessor under this Lease
or the Indenture by a written certificate furnished to the City
and the Trustee containing the specimen signature of such person
or persons and signed on behalf of the Lessor by the Chairman or
President or any Vice Chairman or Vice President of the Lessor.
"Net Proceeds," when used with respect to any proceeds from
policies of insurance required hereby, or proceeds from any
condemnation award, or proceeds from any foreclosure and sale of
the Project and subleasing of the Site, means the amount
remaining after deducting from the gross proceeds thereof all
expenses (including, without limitation, attorneys' fees and
costs) incurred in the collection of such proceeds or award.
"Opinion of Counsel" means an opinion in writing of legal
counsel, who may be counsel to the Trustee, the City or the
Lessor.
"Original Term" means the portion of the Lease Term which
terminates on December 31, 1990.
"Outstanding" or "Certificates Outstanding" means all
Certificates which have been executed and delivered, except;
(a) Certificates canceled or which shall have been
surrendered to the Trustee for cancellation;
(b) Certificates in lieu of which other Certificates
have been authenticated under Section 2.08 or 2.09 of the
Indenture;
(c) Certificates which shall have been redeemed as
provided in Article IV of the Indenture (including
Certificates redeemed on a partial payment as provided in
Section 4.02 of the Indenture); and
(d) Certificates paid or deemed to be paid in
accordance with the provisions of Article VI of the
Indenture.
"Participant" or "registered owner" of a Certificate means
the registered owner of any Certificate, as shown in the
registration books of the Trustee.
"Permitted Encumbrances" means, as of any particular time,
(i) liens for taxes and assessments not then delinquent, or
liens which may remain unpaid pursuant to the provisions of
Article VIII and Article IX of this Lease; (ii) this Lease and
the Indenture; (iii) utility, access and other easements and
rights of way, restrictions and exceptions which do not, in the
opinion of the City Representative, interfere with or impair the
Project, all as provided in Section 11.4 hereof; (iv) any UCC
Financing Statements filed to perfect security interest pursuant
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to this Lease or the Indenture; (v) such minor defects,
irregularities, encumbrances and clouds on title as normally
exist with respect to property of the general character of the
Project and as do not, in the opinion of the City
Representative, materially impair the value of or title to the
Project and (vi) those encumbrances and exceptions to title set
forth in Exhibit C to this Lease.
"Project" means, collectively, the Facility and the Site.
"Project Documents" means the following: (i) a survey of
the real estate described in Exhibit A hereto, prepared by a
registered land surveyor in accordance with standard
requirements for land title surveys, showing the location of all
improvements, easements, encroachments and other encumbrances on
such real estate; (ii) policies of title or certificates
thereof, as required by this Lease with respect to the Site; and
(iii) any and all other documents executed by or furnished to
the City in connection with the acquisition of the Project.
"Purchase Option Price" means the amount payable, at the
option of the City, for the purpose of terminating this Lease
and purchasing the Project, which amount shall be equal to such
amount as shall be necessary to discharge the Indenture in the
manner provided in Article VI of the Indenture.
"Rebate Fund" means the trust fund by that name created
pursuant to Section 3.17 of the Indenture.
"Renewal Date" means December 31, 1990 and each December 31
thereafter.
"Renewal Term" means any optional Renewal Term of the Lease
Term as provided in Article IV of this Lease.
"Revenues" means (i) Extraordinary Revenues, if any; ii
the Base Rentals; (iii) all other revenues derived from this
Lease, excluding Additional Rentals, excluding payments into the
Expenses Fund, and excluding payment constituting compensation
to the Trustee for its services; and (iv) any other moneys to
which the Trustee may be entitled for the benefit of the
Participants.
"Site" means the parcel of real estate described on Exhibit
A hereto, owned by the Lessor and leased to the City by the
Lessor under this Lease.
"State" means the State of Colorado.
"Termination Event" means (a) an Event of Nonappropriation,
(b) an Event of Default under the Lease followed by a
determination by the Trustee to terminate the Lease, or ( c ) an
exercise by the City of its right to terminate the Lease under
Section 10.3 of the Lease.
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"Trustee" means The Pueblo Bank and Trust Company, a state
chartered banking corporation with its principal corporate trust
office located in Pueblo, Colorado, acting in the capacity of
trustee for the Participants pursuant to the Indenture, and any
successor thereto appointed under the Indenture.
"Trustee Representative" means the person or persons at the
time designated to act on behalf of the Trustee for purposes of
performing any act on behalf of the Trustee under the Indenture
or this Lease by a written certificate furnished to the City and
the Lessor containing the specimen signature of such person or
persons and signed on behalf of the Trustee by and duly
authorized officer of the Trustee.
ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES
Section 2.1. Representations, Covenants and Warranties of
the City The City represents, covenants and warrants for the
benefit of the Trustee, the Participants and the Lessor as
follows:
(a) The City is a home rule municipality duly
organized and existing under Article XX of the Constitution
of the State and the Charter of the City. The City is
authorized by its Charter to enter into the transactions
contemplated by this Lease and to carry out its obligations
hereunder. The City has duly authorized and approved the
execution and delivery of this Lease and other documents
related to this transaction.
(b) The acquisition of the Project, under the terms
and conditions provided for in this Lease, is necessary,
convenient and in furtherance of the governmental purposes
of the City and is in the best interests of the City and
its inhabitants.
(c) During the Lease Term, the Project will at all
times be used by the City for the purpose of performing its
lawful governmental functions (except to the extent that
subleasing of the Project by the City is permitted by
Section 13.2 of this Lease).
(d) Neither the execution and delivery hereof, nor
the fulfillment of or compliance with the terms and
conditions hereof, nor the consummation of the transactions
contemplated hereby conflicts with or results in a breach
of the terms, conditions or provisions of any restriction
or any agreement or instrument to which the City is now a
party or by which the City is bound, or constitutes a
default under any of the foregoing or results in the
creation or imposition of any lien or encumbrance
whatsoever upon any of the property or assets of the City,
except the Site.
(e) To the knowledge of the City, there is no
litigation or proceeding pending or threatened against the
City or any other person affecting the right of the City to
execute this Lease or the ability of the City to make the
payments required hereunder or to otherwise comply with the
obligations contained herein.
Section 2.2. Representations, Covenants and Warranties of
Lessor The Lessor represents, covenants and warrants for the
benefit of the City, the Trustee and the Participants as
follows:
(a) The Lessor is a nonprofit corporation duly
organized, existing and in good standing under the laws of
the State, is duly qualified to do business in the State,
has all necessary power and authority to enter into and
perform and observe the covenants and agreements on its
part contained in this Lease, is possessed of full power
and authority to own and hold real and personal property
and to lease the same as lessor, and by proper action has
duly authorized the execution and delivery of this Lease.
(b) The Lessor will not pledge
or any of its other rights under thi
to the Indenture, and except for any
Section 13.1 of this Lease; and
mortgage or encumber the Project
Encumbrances.
or assign the Revenues
a Lease except pursuant
assignment pursuant to
the Lessor will not
except for Permitted
(c) Neither the execution and delivery hereof, nor
the fulfillment of or compliance with the terms and
conditions hereof, nor the consummation of the transactions
contemplated hereby, conflicts with or results in a breach
of the terms, conditions and provisions of any restriction
or any agreement or instrument to which the Lessor is now a
party or by which the Lessor is bound, or constitutes a
default under any of the foregoing and will not conflict
with or constitute a violation of any constitutional or
statutory provision or order, rule, regulation, decree or
ordinance of any court, government or governmental
authority having jurisdiction over the Lessor or its
property and which conflict or violation will have a
material adverse effect on the Lessor, the Project or its
operation.
(d) The Lessor acknowledges and recognizes that this
Lease will be terminated at the end of the Original Term or
any Renewal Term in the event that sufficient funds are not
budgeted and appropriated by the City specifically with
respect to this Lease, to continue paying all Base Rentals
and Additional Rentals during the next occurring Renewal
Term, and that the acts of budgeting and appropriating
funds are legislative acts and, as such, are solely within
the discretion of the City Council.
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(e) The Lessor agrees that so long as any of the
Certificates are Outstanding, it will maintain its
existence, will continue to be qualified to do business in
the State, will maintain its principal place of business in
the State, will not dissolve and will not consolidate with
or merge into another legal entity or permit one or more
other legal entities to consolidate with or merge into it.
(f) There is no litigation or proceeding pending or,
to the knowledge of the Lessor, threatened against the
Lessor or any other person affecting the right of the
Lessor to execute or deliver this Lease, or the Indenture
or to comply with its obligations under this Lease or the
Indenture. Neither the execution and delivery of this
Lease or the Indenture by the Lessor, nor compliance by the
Lessor with its obligations under this Lease and the
Indenture, require the approval of any regulatory body, any
parent company, or any other entity, which approval has not
been obtained.
(g) This Lease constitutes a legal, valid and binding
obligation of the Lessor enforceable in accordance with its
terms.
(h) The Lessor owns the Site and has the authority
and the unencumbered right to lease the Site to the City
pursuant to this Lease.
ARTICLE III
DEMISING CLAUSE
The Lessor demises and leases the Site and all improvements
relating thereto, to the City, and the City leases the Site from
the Lessor, in accordance with the provisions of this Lease,
subject only to Permitted Encumbrances, to have and to hold for
the Original Term and the Renewal Term, if any.
ARTICLE IV
LEASE TERM
Section 4.1. Commencement of Lease Term; Renewals The
Lease Term shall commence as of February 1, 1990. The Original
Term shall terminate on December 31, 1990. The Lease Term may
be continued, solely at the option of the City, for the first
Renewal Term starting January 1, 1991 and for additional Renewal
Terms thereafter, each of one year in duration, except that the
final Renewal Term, if any, shall commence on January 1, 1996
and shall terminate on December 1, 1996 or, if all Base Rentals
and Additional Rentals for such Renewal Term have not then been
paid by the City, on such later date as all Base Rentals and
Additional Rentals are paid by the City.
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In the event that the City shall determine, for any reason,
not to renew this Lease, the City shall give written notice to
such effect to the Trustee and the Lessor not less than 30 days
prior to the end of the Original Term or the then current
Renewal Term; provided, however, that a failure to give such
notice shall not constitute an Event of Default, nor prevent the
City from declining to renew this Lease, nor result in any
liability on the part of the City.
The option of the City to renew or not to renew this Lease
shall be conclusively determined by whether or not the City
Council has, on or before the December 31 immediately preceding
the commencement of any Renewal Term, budgeted and appropriated,
specifically with respect to this Lease, moneys sufficient to
pay all the Base Rentals and reasonably estimated Additional
Rentals for such ensuing Renewal Term, all as further provided
in Section 6.6 of this Lease.
It is the intention of the City Council that the decision
to renew or not to renew this Lease shall be made solely by the
City Council and not by any other City officer, and the City
Manager of the City (or any other officer at any time charged
with the responsibility of formulating budget proposals) is
hereby directed to include in the budget proposals submitted to
the City Council, in any year in which this Lease shall be in
effect, items for all payments required for the ensuing Renewal
Term under this Lease. The City shall in any event, whether or
not the Lease is to be renewed, furnish the Trustee and Lessor
with copies of its annual budget promptly after the budget is
adopted.
The terms and conditions during any Renewal Term shall be
the same as the terms and conditions during the Original Term,
except that the Base Rentals shall be as provided in Exhibit B
to this Lease.
Section 4.2. Termination of Lease Term The Lease Term
shall terminate upon the earliest of any of the following
events:
(a) The expiration of the Original Term or any
Renewal Term during which there occurs an Event of
Nonappropriation (which is not thereafter waived) pursuant
to Article VI of this Lease;
(b) The purchase by the City of the Project as
provided in Article XII of this Lease (subject to the
proviso of (c) below, if applicable ) and the Certificates
shall have been paid or deemed paid pursuant to Article VI
of the Indenture;
(c) Discharge of the Indenture, as provided in
Article VI of the Indenture (except that, in the event of
discharge of the Indenture pursuant to the second paragraph
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of Article VI of the Indenture, this Lease shall remain in
effect solely for the purpose of conferring rights upon the
Participants to payments of principal of, premium, if any,
and interest on the Certificates solely from moneys or
Federal Securities deposited in accordance with the
Indenture);
(d) An Event of Default and termination of the Lease
Term by the Trustee under Article XIV of this Lease;
(e) The election of the City to terminate the Lease
Term pursuant to Section 10.3(b) of this Lease; or
(f) December 31, 1996, which date constitutes the
last day of the final Renewal Term of this Lease, or such
later date as all Base Rentals and Additional Rentals
required hereunder shall be paid, with the effect that the
Certificates shall be paid or deemed paid pursuant to
Article VI of this Lease.
Termination of the Lease Term shall terminate all unaccrued
obligations of the City under this Lease (except for the
application of Section 14.2(b)(i) hereof, in the event the City
holds over), and shall terminate the rights of the City to
possession of the Project and the Site under this Lease (except
to the extent of any conveyance pursuant to Article XII of this
Lease); but all other provisions of this Lease, including all
obligations of the City hereunder accrued prior to such
termination, and all obligations of the Trustee with respect to
the Participants and the receipt and disbursement of funds,
shall be continuing until the Indenture is discharged as
provided in Article VI of the Indenture (subject to the proviso
of (c) above, if applicable).
ARTICLE V
ENJOYMENT OF SITE AND PROJECT
The Lessor hereby covenants that the City shall during the
Lease Term peaceably and quietly have and hold and enjoy the
Project and the Site without suit, trouble or hindrance from the
Lessor, except as expressly required or permitted by this Lease
or the Indenture. The Lessor shall not interfere with the quiet
use and enjoyment of the Project and the Site by the City during
the Lease Term, so long as the Lease Term shall be in effect.
The Lessor shall, at the request of the City and at the cost of
the City, join and cooperate fully in any legal action in which
the City asserts its rights to such possession and enjoyment, or
which involves the imposition of any taxes or other governmental
charges on or in connection with the Site or the Project. In
addition, the City may at its own expense join in any legal
action affecting its possession and enjoyment of the Site or the
Project, and shall be joined (to the extent legally possible,
and at the expense of the City) in any action affecting its
liabilities hereunder.
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Equitable title to the Project and the Site shall be deemed
to vest in the City, subject to the rights of the Lessor and the
Trustee under this Lease and the Indenture.
ARTICLE VI
PAYMENTS BY THE CITY
Section 6.1. Payments to Constitute Currently Budgeted
Expenditures of the City The City and the Lessor acknowledge
and agree that the Base Rentals and Additional Rentals hereunder
shall constitute currently budgeted expenditures of the City.
The obligations of the City under this Lease shall be from year
to year only (as further provided in Sections 4.1, 4.2, 6.2 and
6.6 hereof) , and shall not constitute a mandatory payment
obligation of the City in any fiscal year beyond a fiscal year
during which this Lease shall be in effect.
No provision of this Lease shall be construed or
interpreted as creating a general obligation or other
indebtedness of the City within the meaning of any
constitutional, statutory or Charter debt limitation. No
provision of this Lease shall be construed or interpreted as
creating a delegation of governmental powers nor as a donation
by or a lending of the credit of the City within the meaning of
Section 1 or 2 of Article XI of the Constitution of the State of
Colorado. Neither this Lease nor the issuance of the
Certificates shall directly or indirectly obligate the City to
make any payments beyond those appropriated for any fiscal year
in which the Lease shall be in effect. The City shall be under
no obligation to exercise its option to purchase the Project.
No provision of this Lease shall be construed to pledge or to
create a lien on any class or source of City moneys, nor shall
any provision of this Lease restrict the future issuance of any
City bonds or obligations payable from any class or source of
City moneys.
Section 6.2. Base Rentals and Additional Rentals The
City shall pay Base Rentals directly to the Trustee for
distribution to the Participants in accordance with the
Indenture during the Lease Term on the due dates set forth in
Exhibit B to this Lease. The Base Rentals during the Original
Term and any Renewal Terms shall be in the amounts in the "Total
Base Rental" column, as set forth in Exhibit B to this Lease.
There shall be credited against the amount of Base Rentals
otherwise payable hereunder all amounts at the time on deposit
in the Certificate Fund and available for such payments to
Participants. The initial Base Rentals to be paid by the City
on February 15, 1990 shall be in consideration for the use of
the Project and the Site by the City from February 1, 1990 until
and including December 31, 1990. Thereafter, Base Rentals due
on any February 15 shall be in consideration for the use of the
Project and the Site by the City from the immediately preceding
January 1 to and including the immediately following December
31.
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In the event of any partial redemption of Certificates
prior to maturity, the Base Rentals shall be recalculated by the
Trustee, so that the Base Rentals payable on February 15 shall
be equal to the amount necessary to pay the principal of and
interest on the Certificates coming due on the next February 15,
as the case may be.
The City shall pay Additional Rentals during the Lease Term
as herein provided. The Additional Rentals during the Lease
Term shall be in an amount sufficient to pay the fees and
expenses of the Trustee, payments for the cost of taxes,
insurance premiums, utility charges, maintenance and repair
costs, and all other expenses expressly required to be paid
hereunder or under the Indenture, including but not limited to
costs and expenses charged to or incurred by the Lessor at the
request of the City and in its capacity as Lessor hereunder, as
well as for payments into the Rebate Fund required by the
Indenture. All Additional Rentals shall be paid by the City on
a timely basis directly to the Person or entity to which such
Additional Rentals are owed (except that payments into the
Rebate Fund shall be made to the Trustee as provided in the
Indenture). If the estimates of the City of Additional Rentals
for any Renewal Term are not itemized in the budget required to
be furnished to the Trustee and Lessor under Section 4.1 of this
Lease, the City shall furnish an itemization of such estimated
Additional Rentals to the Trustee and the Lessor on or before
the December 15 preceding such Renewal Term.
Section 6.3. Interest Component A portion of each
payment of Base Rentals is paid as, and represents payment of
interest, and Exhibit B attached hereto, as it may be amended
hereunder, sets forth the interest component of each payment of
Base Rentals.
Section 6.4. Manner of Payment The Base Rentals and, if
paid, the Purchase Option Price, shall be paid in lawful moneys
of the United States of America to the Trustee at its principal
corporate trust office. The obligation of the City to pay the
Base Rentals and Additional Rentals required under this Article
VI and other sections hereof, during the Lease Term, shall be
absolute and unconditional, and payment of the Base Rentals and
Additional Rentals shall not be abated through accident or
unforeseen circumstances. Notwithstanding any dispute between
the City and the Lessor, the Trustee, any Participant or any
other person, the City shall, during the Lease Term, make all
payments of Base Rentals and Additional Rentals when due and
shall not withhold any Base Rentals or Additional Rentals
pending final resolution of such dispute (except to the extent
permitted by Sections 8.2 and 9.3 hereof with respect to certain
Additional Rentals), nor shall the City assert any right of
set -off or counterclaim against its obligation to make such
payments required hereunder. No action or inaction on the part
of the Lessor or the Trustee shall affect the City's obligation
to pay all Base Rentals and Additional Rentals (except to the
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extent provided by Sections 8.2 and 9.3 hereof with respect to
certain Additional Rentals), during the Lease Term.
Section 6.5. Expre ssion of t
Purchase Price The City hereby declares its current need for
the Project. It is hereby declared to be the present intention
and expectation of the City Council that this Lease will be
renewed annually until title to the Project is acquired by the
City pursuant to this Lease; but this declaration shall not be
construed as contractually obligating or otherwise binding the
City. The City and the Lessor hereby agree and determine that
the Base Rentals hereunder during the Original Term and any
Renewal Term represent the fair value of the use of the Project
and the Site; and that the Purchase Option Price represents the
fair purchase price of the Project. The City hereby determines
that the Base Rentals do not exceed a reasonable amount so as to
place the City under an economic or practical compulsion to
renew this Lease or to exercise its option to repurchase the
Project hereunder. In making such determinations, the City and
the Lessor have given consideration to the value of the Site,
the uses and purposes for which the Project will be employed by
the City, the benefit to the City by reason of the construction,
acquisition and equipping of the Project and the use and
occupancy of the Project and the Site pursuant to the terms and
provisions of this Lease, the option of the City to purchase the
Project, and the expected eventual vesting of title to the
Project in the City. The City hereby determines and declares
that the acquisition of the Project pursuant to this Lease will
result in a Project. facility of comparable quality and meeting
the same requirements and standards as would be necessary if the
acquisition of the Project were done by the City other than
pursuant to this Lease. The City hereby determines and declares
that the period during which the City has an option to purchase
the Project (i.e., the maximum term of this Lease including all
Renewal Terms) does not exceed the useful life of the Project.
Section 6.6. Nonappropriation In the event that the City
Council shall not budget and appropriate, specifically with
respect to this Lease, on or before December 31 of each year,
moneys sufficient to pay all Base Rentals and the reasonably
estimated Additional Rentals coming due for the next ensuing
Renewal Term, an Event of Nonappropriation shall be deemed to
have occurred (provided, however, that the Trustee shall declare
an Event of Nonappropriation on any earlier date on which the
Trustee receives written notice from the 'City that this Lease
will not be renewed; and provided further that the Trustee may
waive any Event of Nonappropriation which is cured by the City
within a reasonable time if in the judgment of the Trustee such
waiver is in the best interests of the Participants). In the
event that during the Original Term or any Renewal Term, any
Additional Rentals shall become due which were not included in
the current budget of the City, or which exceed the amounts
which were included therefor in the current budget of the City,
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I�f I!II
then, in the event that moneys are not specifically budgeted and
appropriated to pay such Additional Rentals within 90 days
subsequent to the date upon which such Additional Rentals are
due, an Event of Nonappropriation shall be deemed to have
occurred, upon notice by the Trustee to the City to such effect
(subject to waiver by the Trustee as hereinbefore provided).
If an Event of Nonappropriation occurs, the City shall not
be obligated to make payment of the Base Rentals or Additional
Rentals or any other payments provided for herein which accrue
after the last day of the Original or Renewal Term during which
such Event of Nonappropriation occurs; provided, however, that,
subject to the limitations of Section 14.3 hereof, the City
shall continue to be liable for Base Rentals and Additional
Rentals allocable to any period during which the City shall
continue to occupy the Project.
The City shall in all events vacate the Project and the
Site by the expiration of the Original or Renewal Term during
which an Event of Nonappropriation occurs. The City and the
Lessor hereby acknowledge and agree that any termination of this
Lease, whether pursuant to this Section 6.6, Section 10.3(b), or
Section 14.2 hereof, shall terminate the City's rights as to the
Project.
The Trustee, upon the occurrence of an Event of
Nonappropriation, shall be entitled to all moneys then on hand
and being held in all funds created under the Indenture,
including the Expenses Fund but excluding the Rebate Fund, for
the benefit of the Participants. After the expiration of the
Original or Renewal Term during which an Event of
Nonappropriation occurs, the Trustee may proceed to foreclose on
and sell, lease or assign its interest in the Project or any
portion thereof and sublease the Site, as provided in Section
7.02 and 7.05 of the Indenture, or take one or any combination
of the steps described in paragraphs (a), (b) and (c) of Section
14.2 of this Lease. All property, funds and rights acquired by
the Trustee by reason of any Event of Nonappropriation as
provided herein, less any moneys due and owing to the Trustee,
shall be held by the Trustee for the benefit of the Participants
as set forth in the Indenture.
Section 6.7. Disposition of Base Rentals Upon receipt by
the Trustee of each payment of Base Rentals, the Trustee shall
apply the amount of such Base Rentals in the following manner
and order:
FIRST, the amount of such payment of Base Rentals
designated and paid as interest under Exhibit B, plus the
amount of any past due interest on the Certificates, shall
be deposited in the Interest Account of the Certificate
Fund.
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SECOND, the remaining portion of such payment of Base
Rentals shall be deposited in the Principal Account of the
Certificate Fund.
ARTICLE VII
ACQUISITION OF THE PROJECT
Section 7.1. Acquisition of the Site The Lessor has
acquired the Site and agrees to lease the Site to the City
pursuant to this Lease. The Lessor shall cause to be furnished,
at the time it leases the Site to the City, standard form ALTA
title insurance policies upon the Site issued by a title
insurance company approved by the Trustee and the City and
issued to (a) the Trustee, insuring the Trustee's mortgage
interest in the Site, and (b) the Lessor, insuring the Lessor's
fee title interest in the Site, both subject to Permitted
Encumbrances. Said title insurance policies shall be subject to
no encumbrances other than Permitted Encumbrances, and shall
each be issued in an amount not less than the principal amount
of the Certificates.
ARTICLE VIII
TITLE TO THE PROJECT;
LIMITATIONS ON ENCUMBRANCES
Section 8.1. Title to the Project At all times during
the Lease Term, title to the Site shall remain in the Lessor,
subject to this Lease, Indenture and any other Permitted
Encumbrances. Except personal property purchased by the City at
its own expense pursuant to Section 9.2 of this Lease, title to
the Project and any and all additions and modifications to or
replacements of any portion of the Project shall be held in the
name of the Lessor, subject only to Permitted encumbrances,
until foreclosed on or conveyed as provided in Section 7.02 of
the Indenture or Article XII of this Lease, notwithstanding (i)
the occurrence of an Event of Nonappropriation as provided in
Section 6.6 of this Lease or one or more Events of Default as
defined in Section 14.1 of this Lease; (ii) the occurrence of
any event of damage, destruction, condemnation or title defect,
as provided in Article X of this Lease; or (iii) the violation
by the Lessor (or by the Trustee as assignee of the Lessor
pursuant to the Indenture) of any provision of this Lease.
The City shall have no right, title or interest in the
Project or any additions and modifications to or replacements of
any portion of the Project, except as expressly set forth in
this Lease.
Section 8.2. No Encumbrance, Mortgage or Pledge of
P roject . The City shall not permit any mechanic's or other lien
to be perfected to or remain against the Project; provided that,
if the City shall first notify the Trustee of the intention of
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the City so to do, the City may in good faith contest any
mechanic's or other lien filed or perfected 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; provided, however, that during the
prosecution of such contest and appeal and until final discharge
of such mechanic's or other lien, the City shall (a) provide a
surety bond in the amount of such mechanic's or other lien in
accordance with the laws of the State, or (b provide
affirmative title insurance coverage over such mec anic's or
other lien, or (c) provide such other collateral or surety of
payment as the Trustee may deem acceptable in its sole
discretion. The Lessor and the Trustee will cooperate fully
with the City in any such contest, upon the request and at the
expense of the City. Neither the Lessor nor, except as provided
above, the City, shall directly or indirectly create, incur,
assume or suffer to exist any mortgage, pledge, lien, charge,
encumbrance or claim on or with respect to the Site or the
Project, except Permitted Encumbrances. The City shall
promptly, at its own expense, take such action as may be
necessary to duly discharge any such mortgage, pledge, lien,
charge, encumbrance or claim not excepted above which it shall
have created, incurred or suffered to exist. The Lessor shall
promptly, at its own expense, take such action as may be
necessary to duly discharge any such mortgage, pledge, lien,
charge, encumbrance or claim not excepted above which it shall
have created and incurred.
ARTICLE IX
MAINTENANCE, TAXES, INSURANCE AND OTHER CHARGES
Section 9.1. Maintenance of the Project by the City The
City agrees that, at all times during the Lease Term, the City
will maintain, preserve and keep the Project or cause the
Project to be maintained, preserved and kept, with the
appurtenances and every part and parcel thereof, in good repair,
working order and condition, and that the City will from time to
time make or cause to be made all necessary and proper repairs,
except as otherwise provided in Section 10.3 of this Lease.
Neither the Lessor nor the Trustee nor any of the Participants,
shall have any responsibility in any of these matters or for the
making of any additions, modifications or replacements to the
Project.
Section 9.2. Modification of the Project; Installation of
Furnishings and Machinery of the City The City shall have the
privilege of remodeling the Project or making substitutions,
additions, modifications and improvements to the Project, at its
own cost and expense; and title to the same shall be held in the
name of the Lessor, subject to this Lease and the Indenture, and
shall be included under the terms of this Lease and the
Indenture; provided, however, that such remodeling,
substitutions, additions, modifications and improvements shall
arm
not in any way damage the Project or cause the Project to be
used for purposes other than lawful governmental functions of
the City or cause the City to violate its covenants in Section
11.7 hereof; and provided that the Project, as remodeled,
improved or altered, upon completion of such remodeling,
substitutions, additions, modifications and improvements, shall
be of a value not less than the value of the Project immediately
prior to such remodeling or such making of substitutions,
additions, modifications and improvements, as reasonably
determined by the Trustee.
The City may also, from time to time in its sole discretion
and at its own expense, install machinery, equipment and other
tangible property in or on the Project. All such machinery,
equipment and other tangible property shall remain the sole
property of the City in which neither the Lessor, the Trustee
nor the Participants shall have any interest; provided, however,
that title to any such machinery, equipment and other tangible
property which becomes permanently affixed to the Project shall
be in the Lessor, subject to this Lease and the Indenture, and
shall be included under the terms of this Lease and the
Indenture, in the event the Trustee shall reasonably determine
that the Project would be damaged or impaired by the removal of
such machinery, equipment or other tangible property.
Section 9.3. Taxes, Other Governmental Charges and Utilitv
Charges In the event that the Project or any portion thereof
shall, for any reason, be deemed subject to taxation,
assessments or charges lawfully made by an governmental body,
the City shall, during the Lease Term, pay the amount of all
such taxes, assessments and governmental charges then due as
Additional Rentals. With respect to special assessments or
other governmental charges which may be lawfully paid in
installments over a period of years, the City shall be obligated
to provide for Additional Rentals only for such installments as
are required to be paid during the Original or any Renewal Term.
The City shall not allow any liens for taxes, assessments or
governmental charges to exist with respect to the Project or any
portion thereof (including, without limitation, any taxes levied
upon the Site, the Project or any portion thereof which, if not
paid, will become a charge on the rentals and receipts from the
Project or any portion thereof, or any interest therein,
including the interest of the Lessor, the Trustee or the
Participants), or the rentals and revenues derived therefrom or
hereunder. The City shall also pay as Additional Rentals, as
the same respectively become due, all gas, water, steam,
electricity, heat, power, telephone, utility and other charges
incurred in the maintenance and upkeep of the Project.
The City may, at the expense and in the name of the City,
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, utility or other charges so contested to
remain unpaid during the period of such contest and any appeal
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therefrom unless the Trustee shall notify the City that, in the
opinion of Independent Counsel, by nonpayment of any such items
the security afforded pursuant to the Indenture will be
materially endangered or the Project or any portion thereof will
be subject to loss or forfeiture, or the Lessor or the Trustee
will be subject to liability, in which event such taxes,
assessments, utility or other charges shall be paid forthwith as
Additional Rentals (provided, however, that such payment shall
not constitute a waiver of the right to continue to contest such
taxes, assessments, utility or other charges).
Section 9.4. Provisions Regarding Casualty, Public
Liability and Property Damage Insurance The City shall cause
casualty and property damage insurance to be carried and
maintained with respect to the Project in an amount equal to the
aggregate principal amount of the Certificates then outstanding
or the replacement cost of the Project, whichever is greater,
after taking into account the amount of any deductible clause
concerning such insurance. In the event that the City shall so
fail to insure the Project, the Trustee shall, using the moneys
available in the Expenses Fund, pay premiums for such casualty
and property damage insurance. The Trustee shall, during the
Lease Term, comply with the reasonable direction of the City as
to the terms of such casualty and property damage insurance,
consistent with the requirements of this Section 9.4, and as to
the selection of a responsible insurer to provide such casualty
and property damage insurance. The insurance policy may have a
deductible clause in an amount not to exceed $150,000. The
Project may be insured under a blanket insurance policy which
insures other buildings as well, as long as such blanket
insurance policy complies with the requirements of this Lease.
If the City shall insure against similar risks by
self- insurance, the City, at its election, may provide for
property and casualty insurance with respect to the Project,
partially or wholly by means of an adequate self- insurance fund.
Upon the execution and delivery of this Lease, the City
shall, at its own expense, cause public liability insurance to
be carried and maintained with respect to the activities to be
undertaken by and on behalf of the City in connection with the
use of the Project. Such public liability insurance in
connection with the Project shall be in an amount not less than
the amounts provided in the Colorado Governmental Immunity Act,
article 10 of title 24, Colorado Revised States, as the same may
be hereafter amended. The public liability insurance required
by this Section 9.4 may be by blanket insurance policy or
policies. If the City shall insure against similar risks by
self- insurance, the City, at its election, may provide for
public liability insurance with respect to the Project,
partially or wholly by means of an adequate self- insurance fund,
subject to the provisions of the following paragraph.
Any self- insurance maintained by the City shall comply with
the following terms:
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(i) the self - insurance program shall be approved by
an Independent Insurance Consultant;
the self- insurance program shall include an
actuarially sound claims reserve fund out of which each
such fund shall be evaluated on an annual basis by the
Independent Insurance Consultant; and any deficiencies in
any self - insurance claims shall be remedied in accordance
with the recommendation of the Independent Insurance
Consultant;
(iii) the self- insurance claims fund shall be held in
a separate trust fund by an independent trustee who may be
the Trustee; and
(iv) in the event the self- insurance program shall be
discontinued, the actuarial soundness of its claims reserve
fund, as determined by the Independent Insurance
Consultant, shall be maintained.
For purposes of this Section 9.4, "Independent Insurance
Consultant" shall mean a nationally recognized, independent
actuary, insurance company or broker acceptable to the Trustee
that has actuarial personnel experience in the area of insurance
for which the City is to be self- insured.
Any casualty and property damage insurance policy required
by this Section 9.4 shall be so written or endorsed as to make
losses of $2,500 or less, if any, payable to the City, and
losses over $2,500, if any, payable to the Trustee, who, along
with the City and the Lessor, shall be a co- insured. Each
insurance policy provided for in this Section 9.4 shall contain
a provision to the effect that the insurance company shall not
cancel the policy or modify it materially and adversely to the
interest of the Trustee or the Participants, without first
giving written notice thereof to the City and the Trustee at
least 30 days in advance of such cancellation or modification.
All insurance policies issued pursuant to this Section 9.4, or
certificates with respect thereto, shall be deposited with the
Trustee. No agent or employee of the City shall have the power
to adjust or settle any loss with respect to the Project,
whether or not covered by insurance, without the prior written
consent of the Trustee. The consent of the Lessor shall not be
required for any such adjustment or settlement.
Section 9.5. Advances In the event that the City shall
fail to pay any Additional Rentals during the Lease Term, the
Trustee may pay such Additional Rentals, which Additional
Rentals, together with interest thereon at the rate of 18% per
annum, the City agrees to reimburse to the Trustee.
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ARTICLE X
DAMAGE, DESTRUCTION
AND CONDEMNATION; USE OF NET PROCEEDS
Section 10.1. Damage, Destruction and Condemnation If,
during the Lease Term (.i) the Project shall be destroyed (in
whole or in part), or damaged by fire or other casualty; or (ii)
title to, or the temporary or permanent use of, the Project or
any portion thereof or the estate of the City, the Lessor or the
Trustee in the Project or any portion thereof shall be taken
under the exercise of the power of eminent domain by any
governmental authority; or (iii) title to or the use of all or
any portion of the Project shall be lost by reason of a defect
in title thereto; then the City shall continue to be obligated,
subject to the provisions of Section 10.3 of this Lease, to
continue to pay the amounts specified in Sections 10.2 and 6.2
of this Lease.
Section 10.2. Obligation of the City to Repair and Replace
t Project Subject to the provisions of Section 10.3 of this
Lease, the Trustee shall cause the Net Proceeds of any insurance
policies, performance bonds or condemnation awards made
available by reason of any occurrence described in Section 10.1
hereof, to be deposited in a separate trust fund. Except as set
forth in Section 10.3 of this Lease, all Net Proceeds so
deposited shall be applied by the City to the prompt repair,
restoration, modification, improvement or replacement of the
Project upon receipt of requisitions acceptable to the Trustee
signed by the City Representative, stating with respect to each
payment to be made: (i) the requisition number; (ii) the name
and address of the person, firm or corporation to whom payment
is due; (iii) the amount to be paid; and (iv) that each
obligation mentioned therein has been properly incurred, is a
proper charge against the separate trust fund, and has not been
the basis of any previous withdrawal and specifying in
reasonable detail the nature of the obligation, accompanied by a
bill or a statement of account for such obligation. The Trustee
shall cooperate with the City in the administration of such fund
and shall not unreasonably withhold its approval of requisitions
under this Section 10.2. The balance of any such Net Proceeds
remaining after such repair, restoration, modification,
improvement or replacement has been completed shall be deposited
into the Extraordinary Redemption Fund. Any repair,
restoration, modification, improvement or replacement paid for
in whole or in part out of such Net Proceeds shall be the
property of the Lessor, subject to this Lease and the Indenture,
and shall be included as part of the Project under this Lease
and the Indenture.
Section 10.3. Insufficiency of Net Proceeds; Discharge of
the Obligation of the City to Repair or Replace Project If the
Net Proceeds (plus any amount withheld therefrom by reason of
any deductible clause) shall be insufficient to pay in full the
IWI&M
cost of any repair, restoration, modification, improvement or
replacement of the Project as required under Section 10.2 of
this Lease, the City shall elect to proceed under any of the
following options:
(a) The City may complete the work and pay any cost
in excess of the amount of the Net Proceeds, and the City
agrees that, if by reason of any such insufficiency of the
Net Proceeds, the City shall make any payments pursuant to
the provisions of this Section 10.3(a), the City shall not
be entitled to any reimbursement therefor from the Lessor,
the Trustee or the Participants, nor shall the City be
entitled to any diminution of the Base Rentals and
Additional Rentals payable under Section 6.2 of this Lease.
(b) The obligation of the City to repair or replace
the Project under Section 10.2 of this Lease may, at the
option of the City, be discharged by depositing the Net
Proceeds of insurance policies or condemnation awards made
available by reason of such occurrence, into the
Extraordinary Redemption Fund, to be used to redeem
Certificates as provided in Section 4.01(c) of the
Indenture. Upon such deposit: (i) this Lease shall
terminate and all obligations of the City hereunder shall
terminate (except the obligation to pay Base Rentals and
Additional Rentals which would otherwise have been payable
by the City hereunder during the Original or Renewal Term
in which such deposit of Net Proceeds occurs); and (ii) the
Trustee shall notify the City to vacate the Project within
30 days of such deposit; the Project shall thereafter be
foreclosed on and subleased as provided in Sections 7.02
and 7.05 of the Indenture; and the Net Proceeds of such
foreclosure and subleasing shall also be deposited into the
Extraordinary Redemption Fund for the purpose of redeeming
Certificates as provided in Section 4.01(d) of the
Indenture.
(c) The obligation of the City to repair or replace
the Project under Section 10.2 of this Lease may, at the
option of the City, be discharged by applying the Net
Proceeds of such insurance policies, performance bonds or
condemnation awards to the payment of the Purchase Option
Price, in accordance with Article XII of this Lease. In
the event of an insufficiency of the Net Proceeds for such
purpose, the City shall pay such amounts as may be
necessary to equal the Purchase Option Price; and in the
event the Net Proceeds shall exceed the Purchase Option
Price, such excess shall be paid to or retained by the
City.
Within 90 days of the occurrence of an event specified in
Section 10.2 of this Lease, the City shall commence the repair,
restoration, modification, improvement or replacement of the
Project, or shall elect, by written notice to the Trustee, to
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proceed under the provisions of subsection (b) or subsection (c)
of this Section 10.3. In the event that the City shall, after
commencing the repair, restoration, modification, improvement or
replacement of the Project, determine that the Net Proceeds
(plus any amount withheld therefrom by reason of any deductible
clause) shall be insufficient for the accomplishment thereof,
the City may elect to proceed under subsection (b) or subsection
(c) of this Section 10.3.
Section 10.4. Cooperation of Lessor The Lessor shall
cooperate fully with the City and the Trustee in filing any
proof of loss with respect to any insurance policy or
performance bond covering the events described in Section 10.1
of this Lease, in the prosecution or defense of any prospective
or pending condemnation proceeding with respect to the Project
or any portion thereof and hereby assigns to the Trustee any
interest it may have in such policies or rights of action for
such purposes. In no event shall the Lessor voluntarily settle,
or consent to the settlement of, any proceedings arising out of
any insurance claim, prospective or pending condemnation
proceeding with respect to the Project or any portion thereof,
without the written consent of the Trustee and the City.
ARTICLE XI
DISCLAIMER OF WARRANTIES; OTHER COVENANTS
Section 11.1. Disclaimer of Warranties NEITHER THE
LESSOR, THE TRUSTEE NOR THE PARTICIPANTS MAKE ANY WARRANTY OR
REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO THE VALUE,
DESIGN, CONDITION, MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OR FITNESS FOR USE OF THE PROJECT OR ANY OTHER
REPRESENTATION OR WARRANTY WITH RESPECT TO THE PROJECT. The
City hereby acknowledges and declares that the City is solely
responsible for the operation and maintenance of the Project
during the Lease Term, and that neither the Lessor, the Trustee
nor the Participants has any responsibility therefor. In no
event shall the Lessor, the Trustee or the Participants be
liable for any direct or indirect, incidental, special or
consequential damage in connection with or arising out of this
Lease or the existence, furnishing, functioning or use by the
City of any item, product or service provided for herein.
Section 11.2. Further Assurances and Corrective
Instruments The Lessor and the City 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 Site
hereby leased or intended so to be, or for otherwise carrying
out the intention hereof.
Section 11.3. Lessor, City and Trustee Representatives
Whenever under the provisions hereof the approval of the Lessor,
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the City or the Trustee is required to take some action at the
request of the other, unless otherwise provided, such approval
or such request shall be given for the Lessor by a Lessor
Representative, for the City by the City Representative, and for
the Trustee by the Trustee Representative, and the Lessor, the
City and the Trustee shall be authorized to act on any such
approval or request.
Section 11.4. Granting of Easements So long as no Event
of Nonappropriation or Event of Default shall have happened and
be continuing, and so long as the Lease Term shall not have been
terminated by the City pursuant to Section 10.3(b) of this
Lease, the Lessor and the Trustee shall at any time or times,
but only upon the request of the City, grant easements,
licenses, rights -of -way (including the dedication of public
highways) and other rights or privileges in the nature of
easements with respect to any property or rights included in the
Ground Lease, free from this Lease and the Indenture and any
security interest or other encumbrance created hereunder or
thereunder, and the Lessor and the Trustee shall release
existing easements, licenses, rights -of -way and other rights and
privileges with respect to such property or rights, with or
without consideration, and the Lessor and the Trustee agree to
execute and deliver any instrument necessary or appropriate to
confirm and grant or release any such easement, license,
right -of -way or other grant or privilege upon receipt of: (i) a
copy of the instrument of grant or release; (ii) a written
application signed by the City Representative requesting such
instrument; and (iii) an opinion of Independent Counsel to the
effect that such grant or release will not impair the value or
the effective use or interfere with the operation of the
Project.
Section 11.5. Compliance with Requirements During the
Lease Term, the City, the Lessor and the Trustee shall observe
and comply promptly with all current and future orders of all
courts having jurisdiction over the Project or any portion
thereof, and all current and future requirements of all
insurance companies writing policies covering the Project or any
portion thereof.
Section 11.6. City Acknowledgement of the Indenture and
the Certificates The City acknowledges and agrees to the terms
of the Indenture and agrees to be bound thereby. The City
further acknowledges and agrees to the assignment by the Lessor
to the Trustee, pursuant to the Indenture,' of all rights, title
and interest of the Lessor in, to and under this Lease (except
the rights of the Lessor under Sections 13.3 and 14.6 of this
Lease), and to the delegation by the Lessor to the Trustee,
pursuant to the Indenture of all duties of the Lessor under this
Lease. The City acknowledges, directs and agrees to the
issuance and sale of the Certificates pursuant to the Indenture.
The City acknowledges and approves the form of the Certificates
contained in the Indenture.
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Section 11.7. Tax Covenants The City hereby covenants to
comply with all restrictions of the Internal Revenue Code of
1986, as amended (the "Code ") applicable to the Certificates and
necessary to preserve the exclusion from gross income and from
alternative minimum taxable income, for purposes of federal
income taxation, of interest paid in connection with the
Certificates, unless the City obtains an opinion of nationally
recognized municipal bond counsel to the effect that compliance
with such restrictions is not necessary to preserve such
exclusion.
Section 11.8. Designation of the Certificates as Qualified
Tax - Exempt Obligations The City represents that it reasonably
anticipates to issue (or has issued), together with governmental
entities which derive their issuing authority from the City or
are subject to substantial control by the City, not more than an
aggregate total of $10,000,000 of governmental or qualified
section 501(c)(3) organization bonds (as defined in the Code)
during calendar year 1990. The City recognizes that
governmental bonds include tax - exempt obligations such as notes,
leases, loans and warrants. The City hereby designates the
Certificates as qualified tax - exempt obligations within the
meaning of Section 265 of the Code allowing banks, thrift
institutions and other financial institutions to avoid the loss
of 100% of any otherwise available interest deduction in direct
proportion to such institutions' tax - exempt holdings.
ARTICLE XII
CONVEYANCE OF THE PROJECT
Section 12.1. Conveyance of the Project The Lessor shall
transfer and convey to the City the Project (or, in the case of
(c) below, any portion of the Project to which the Lessor may
then hold title), in the manner provided for in Section 12.2 of
this Lease; provided, however, that prior to such transfer and
conveyance:
(a) The City shall have paid the then applicable
Purchase Option Price and the Indenture shall have been
discharged as provided in Article VI of the Indenture; or
(b) The City shall have paid all Base Rentals set
forth in Exhibit B hereto, for the Original Term and all
Renewal Terms, including the final Renewal Term, and all
then current Additional Rentals required hereunder; or
(c) The Indenture shall have been discharged as
provided in Article VI of the Indenture.
The City is hereby granted the option to terminate the
Lease Term and to purchase the Project upon payment by the City
of the then applicable Purchase Option Price and upon discharge
of the Indenture as provided in Article VI of the Indenture.
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Section 12.2. Manner of Conveyance At the closing of any
purchase or other conveyance of the Project pursuant to Section
12.1 of this Lease, the Lessor and the Trustee shall execute and
deliver to the City all necessary documents releasing this Lease
and the Indenture, and assigning, transferring and conveying
good and marketable title to the Project, as the Project then
exists, subject to the following: (i) Permitted Encumbrances,
other than this Lease, the Indenture and any UCC financing
statements, indicating the City or the Lessor as the debtor and
the Lessor or the Trustee as secured party, filed to perfect any
security interests granted under the Lease or the Indenture;
(ii) all liens, encumbrances and restrictions created or
suffered to exist by the Lessor or the Trustee as required or
permitted by this Lease or the Indenture or arising as a result
of any action taken or omitted to be taken by the Lessor or the
Trustee as required or permitted by this Lease or the Indenture;
and (iii) any lien or encumbrance created by action of the City.
Section 12.3. Escrowed Deed and Bill of Sale In order to
facilitate the enforcement by the City of the obligation of the
lessor to convey the Project to the City under the circumstances
provided in Section 12.1 of this Lease, the Lessor shall deposit
in escrow with the Trustee, concurrently with the delivery of
the Certificates to the Original Purchaser, a deed to the
Project and a bill of sale satisfactory to the City. The
Trustee shall, upon payment of the Purchase Option Price and
discharge of the Indenture as provided in Article VI of the
Indenture or payment of all Base Rentals or upon discharge of
the Indenture as provided in Section 12.1(c) of this Lease, date
and release the deed and bill of sale to the City for recording.
In the event of any change in description of the Site (pursuant
to Section 11.4 of this Lease), the Lessor shall promptly
cooperate with the City and the Trustee in appropriately
modifying, re- executing and redelivering the deed and bill of
sale.
ARTICLE XIII
ASSIGNMENT, SUBLEASING,
INDEMNIFICATION, MORTGAGING AND SELLING
Section 13.1. Assignment by Lessor; Replacement of Lessor
The rights of the Lessor under this Lease, including rights to
receive and enforce payments hereunder (except the rights of the
Lessor under Sections 13.3 and 14.6 of this Lease), have been
assigned to the Trustee pursuant to the Indenture. In the event
of any bankruptcy, insolvency, or other similar proceeding as to
the Lessor, or in any other event which in the judgment of the
Trustee materially impairs the ability of the Lessor to serve as
Lessor under this Lease or as grantor under the Indenture, the
Trustee may replace the Lessor with such other entity as it
deems appropriate. In any such event the Lessor shall cooperate
with the Trustee in conveying title to the Project and any and
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I [ 111111141 1
all other right, title and interest of the Lessor in, to and
under this Lease and the Indenture to such successor entity as
the Trustee may designate. Any costs or expenses incurred by or
charged to the Lessor at the request of the Trustee and in the
course of cooperating with the Trustee pursuant to the
provisions of this Section shall be paid by the City.
Section 13.2. Assignment and Subleasinq by the City This
Lease may not be assigned by the City for any reason. However,
the Project may be subleased, as a whole or in part, by the
City, but without the necessity of obtaining the consent of the
Lessor, the Trustee or any Participants; subject, however, to
each of the following conditions:
(a) The Project may be subleased, in whole or in
part, only to an agency or department or political
subdivision of the State, or to another entity or entities
if, in the opinion of nationally recognized bond counsel
acceptable to the Trustee, such sublease will not cause the
City to violate its covenants in Section 11.7 hereof;
(b) This Lease, and the obligations of the City
hereunder, shall, at all times during the Original and any
Renewal Terms, remain obligations of the City, and the City
shall maintain its direct relationships with the Lessor and
the Trustee, notwithstanding any sublease;
(c) The City shall furnish or cause to be furnished
to the Lessor and the Trustee a copy of any sublease
agreement; and
(d) No sublease by the City shall cause the Project
to be used for any purpose which would cause the City to
violate its covenants in Section 11.7 hereof, or which
would violate the Constitution, statues or laws of the
State or the Charter.
Section 13.3. Release and Indemnification Covenants. To
the extent permitted by law, the City shall and hereby agrees to
indemnify and save the Lessor and the Trustee harmless against
and from all claims, by or on behalf of any person, firm,
corporation or other legal entity arising from the conduct,
management or ownership of, or from any work or thing done on,
the Project during the Lease Term, from: (i) any condition of
the Project; and (ii) any act of negligence of the City or of
any of its agents, contractors or employees or any violation of
law by the City or breach of any covenant or warranty by the
City hereunder. To the extent permitted by law, the City shall
indemnify and save the Lessor and the Trustee harmless from any
such claim arising as aforesaid from (i) or (ii) above, or in
connection with any action or proceeding brought thereon and,
upon notice from the Lessor or the Trustee, shall defend the
Lessor or the Trustee, as the case may be, and pay the cost of
such defense in any such action or proceeding.
iffim
Section 13.4. Restrictions on Mortgage or Sale of Proiect
The City and the Lessor agree that, except for: (i) the
assignment by the Lessor of this Lease and mortgaging of the
Project to the Trustee pursuant to the Indenture; (ii) any
exercise by the Trustee or the Lessor of the remedies afforded
by this Lease; (iii) the right of the Trustee to replace the
Lessor pursuant to Section 13.1 of this Lease and any
conveyances required by reason of such replacement; (iv) the
right of the City to sublease all or a portion of the Project
pursuant to Section 13.2 of this Lease; (v) any granting of
easements pursuant to Section 11.4 of this Lease; (vi) any
conveyance to the City pursuant to Article XII of this Lease;
(vii) any substitutions, additions, modifications and
improvements of the Project pursuant to Section 9.2 of this
Lease; neither the Lessor nor the City will mortgage, sell,
assign, transfer or convey the Project or any portion thereof
during the Lease Term.
ARTICLE XIV
EVENTS OF DEFAULT AND REMEDIES
Section 14.1. Events of Default Defined Any one of the
following shall be "Events of Default" under this Lease:
(a) Failure by the City to pay any Base Rentals or
Additional Rentals when due during the Lease Term; or
(b) Failure by the City to vacate the Project by the
expiration of the Original or Renewal Term during which an
Event of Nonappropriation occurs; or
(c) Failure by the City to observe and perform any
covenant, condition or agreement on its part to be observed
or performed, other than as referred to in (a) or (b), for
a period of 45 days after written notice, specifying such
failure and requesting that it be remedied shall be given
to the City by the Trustee unless the Trustee shall agree
in writing to an extension of such time prior to its
expiration; provided, however, that if the failure stated
in the notice cannot be corrected within the applicable
period, the Trustee shall not unreasonably withhold its
consent to an extension of such time if corrective action
shall be instituted by the City within the applicable
period and diligently pursued until the default is
corrected.
The foregoing provisions of this Section 14.1 are subject to the
following limitations: (i) the City shall be obligated to pa
the Base Rentals and Additional Rentals only during the Lease
Term, except as otherwise expressly provided in this Lease; and
(ii if, by reason of Force Maieure the City shall be unable in
who e or in part to carry out any agreement on its part herein
contained, other than the obligations on the part of the City
-29-
contained in Article VI of this Lease, the City shall not be
deemed in default during the continuance of such inability. The
City agrees, however, to remedy, as promptly as legally and
reasonably possible, the cause or causes preventing the City
from carrying out its agreement; provided that the settlement of
strikes, lockouts and other industrial disturbances shall be
entirely within the discretion of the City.
Section 14.2. Remedies on Default Whenever any Event of
Default referred to in Section 14.1 of this Lease shall have
happened and be continuing, the Trustee may terminate the Lease
Term and may give notice to the City to vacate the Project
within 15 days from the date of such notice. After the
occurrence of an Event of Default the Trustee may, without any
further demand or notice, foreclose through the courts on the
Project, and take one or any combination of the following
additional remedial steps:
(a) The Trustee may lease the Project or any portion
thereof for the benefit of the Participants; The Trustee
may lease to the highest responsible bidder. Any such
lease shall be conditioned, however, on an agreement by the
lessee to use the Site in a manner compatible with other
uses in the area immediately surrounding the Site.
(b) The Trustee may recover from the City:
(i) the portion of the Base Rentals and
Additional Rentals which would otherwise have been
payable hereunder, allocable to any period in which
the City continues to occupy the Project; and
(ii) Base Rentals and Additional Rentals which
would otherwise have been payable by the City
hereunder during the remainder, after the City vacates
the Project, of the Original or Renewal Term in which
such Event of Default occurs; provided, however, that
if the Trustee does not proceed to foreclose and sell
the Project reasonably promptly after such Event of
Default, the Trustee shall be obligated to the City to
use its best efforts to lease the Project for the
remainder of such Original or Renewal Term, as
provided in paragraph (a) of this Section 14.2, and
the Net Proceeds of such leasing shall be offset
against the amount recoverable from the City under
this paragraph (ii).
(c) The Trustee may take whatever action at law or in
equity may appear necessary or desirable to enforce its
right in and to the Project under this Lease and the
Indenture.
-30-
The exercise of any remedies under this Lease shall be
subject to the limitations and requirements of the Indenture.
Section 14.3. Limitations on Remedies A judgment
requiring a payment of money may be entered against the City by
reason of an Event of Default only as to the City's liabilities
described in paragraph (b) of Section 14.2 of this Lease. A
judgment requiring a payment of money may be entered against the
City by reason of an Event of Nonappropriation only to the
extent that the City fails to vacate the Project as required by
Section 6.6 of this Lease, and only as to the liabilities
described in paragraph (b)(i) of Section 14.2 of this Lease.
Notwithstanding paragraph (b)(ii) of Section 14.2 of this Lease,
any Event of Default consisting of failure by the City to vacate
the Project by the expiration of the Original or Renewal Term
during which an Event of Nonappropriation occurs shall not
result in any liability for Base Rentals or Additional Rentals
allocable to any period other than the period in which the City
continues to occupy the Project.
Section 14.4. No Remedy Exclusive Subject to Section
14.3 hereof, no remedy herein conferred upon or reserved to the
Trustee is intended to be exclusive, and every such remedy shall
be cumulative and shall be in addition to every other remedy
given hereunder or now or hereafter existing at law or in
equity. No delay or omission to exercise any right or power
accruing upon any default shall impair any such right or power,
and the same may be exercised from time to time and as often as
may be deemed expedient. In order to entitle the Trustee to
exercise any remedy reserved in this Article XIV, it shall not
be necessary to give any notice, other than such notice as may
be required in this Article XIV.
Section 14.5. Waivers The Trustee may waive any Event of
Default under this Lease and its. consequences, as the Trustee
deems to be in the best interest of the Certificate owners; and
in the event that any agreement contained herein 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.
In view of the assignment of the rights of the Lessor under
this Lease to the Trustee pursuant to the Indenture, the Lessor
shall have no right to waive any Event of Default hereunder
without the consent of the Trustee; and the waiver of any Event
of Default hereunder by the Trustee shall constitute a waiver of
such Event of Default by the Lessor, without the necessity of
any action of or consent by the Lessor. A waiver of an Event of
Default under the Indenture shall constitute a waiver of the
corresponding Event of Default or Event of Nonappropriation
under this Lease; provided that no such waiver shall extend to
or affect any subsequent or other Event of Default or Event of
Nonappropriation under this Lease or impair any right consequent
thereon.
-31-
Section 14.6. Agreement to Pay Attorneys' Fees and
Expenses In the event that neither party hereto shall default
under any of the provisions hereof and the nondefaulting party
shall employ attorneys or incur other expenses for the
collection of Base Rentals and Additional Rentals, or the
enforcement of performance or observance of any obligation or
agreement on the part of the defaulting party herein contained,
the defaulting party agrees that it shall pay on demand therefor
to the nondefaulting party the fees of such attorneys and such
other expenses so incurred by the nondefaulting party, to the
extent that such attorneys' fees and expenses may be determined
to be reasonable by a court of competent jurisdiction.
Section 14.7. Waiver of Appraisement, Valuation, Stay and
Extension The Lessor and the City agree, to the extent
permitted by law, that in the case of a termination of the Lease
Term by reason of an Event of Nonappropriation or an Event of
Default, neither the Lessor nor the City nor any one claiming
through or under either of them shall or will set up claim or
seek to take advantage of any appraisement, valuation, stay or
extension laws now or hereafter in force in order to prevent or
hinder the enforcement of the Indenture or this Lease; and the
Lessor and the City, for themselves and all who may at any time
claim through or under either of them, each hereby waives, to
the full extent that it may lawfully do so, the benefit of all
such laws; provided, however, that Lessor, for itself and all
who may at any time claim through or under the Lessor, shall
retain all rights of redemption.
ARTICLE XV
MISCELLANEOUS
Section 15.1. Notices All notices, certificates or other
communications hereunder shall be sufficiently given and shall
be deemed given when delivered or mailed by certified or
registered mail, postage prepaid, as follows: if to the City,
City of Pueblo, Colorado, #1 City Hall Place, Pueblo, Colorado
81003, Attention: City Manager; if to the Lessor, City of
Pueblo, Colorado Municipal Building Corporation, One City Hall
Place, Pueblo, Colorado 81003, Attention: President; and if to
the Trustee, The Pueblo Bank and Trust Company, 301 West Fifth
Street, Pueblo, Colorado 81003, Attention: Corporate Trust
Department. The City, the Lessor and the Trustee may, by
written notice, designate any further or different addresses to
which subsequent notices, certificates or' other communications
shall be sent.
Section 15.2. Binding Effect This Lease shall inure to
the benefit of and shall be-binding upon the Lessor and the City
and their respective successors and assigns, subject, however,
to the limitations contained in Article XIII of this Lease.
-32-
Section 15.3. Amendments, Changes and Modifications
Except as otherwise provided in this Lease or the Indenture,
subsequent to the issuance and delivery of the Certificates to
the initial owner or owners thereof and prior to the discharge
of the Indenture, this Lease may not be effectively amended,
changed, modified or altered without the written consent of the
Trustee, as provided in the Indenture.
Section 15.4. Amounts Remaining in Funds It is agreed by
the parties hereto that any amounts remaining in the Certificate
Fund, the Extraordinary Redemption Fund, the Expenses Fund or
any other fund or account created under the Indenture except the
Rebate Fund, upon termination of the Lease Term, and after
payment in full of the Certificates (or provision for payment
thereof having been made in accordance with the provisions of
Article VI of the Indenture) and fees and expenses of the
Trustee in accordance with this Lease, shall belong to and be
paid to the City by the Trustee as an overpayment of Base
Rentals.
Section 15.5. Net Lease This Lease shall be deemed and
construed to be a "net lease," and the City shall pay absolutely
net during the Lease Term, the Base Rentals, Additional Rentals
and all other payments required hereunder, free of any
deductions, and without abatement, deduction or setoff (other
than credits against Base Rentals expressly provided for in this
Lease).
Section 15.6. Payments Due on Holidays If the date for
making any payment or the last day for performance of any act or
the exercising of any right, as provided in this Lease, shall be
a legal holiday or a day on which banking institutions in the
city in which the principal corporate trust office of the
Trustee is located are authorized by law to remain closed, such
payment may be made or act performed or right exercised on the
next succeeding day that is not a legal holiday or a day on
which such banking institutions are not authorized by law to
remain closed with the same force and effect as if done on the
nominal date provided in this Lease.
Section 15.7. Severability In the event that any
provision of this Lease, other than the requirement of the City
to pay Base Rentals and the requirement of the Lessor to provide
quiet enjoyment of the Project and to convey the Project to the
City under the conditions set forth in Article XII of this
Lease, shall be held invalid or unenforceable by any court of
competent jurisdiction, such holding shall not invalidate or
render unenforceable any other provision hereof.
Section 15.8. Execution in Counterparts This Lease may
be simultaneously executed in several counterparts, each of
which shall be an original and all of which shall constitute but
one and the same instrument.
-33-
Section 15.9. Applicable Law This Lease shall be
governed by and construed in accordance with the laws of the
State of Colorado, without regard to conflict of laws
principles.
Section 15.10. Captions The captions or headings herein
are for convenience only and in no way define, limit or describe
the scope or intent of any provisions or sections of this Lease.
IN WITNESS WHEREOF, the Lessor has executed this Lease in
its corporate name with its corporate seal hereunto affixed and
attested by its duly authorized officer; and the City has caused
this Lease to be executed in its corporate name and the seal of
the City affixed and attested by duly authorized officer
thereof. All of the above are effective as of the date first
above written.
[SEAL]
CITY OF PUEBLO, COLORADO
MUNICIPAL BUILDING
CORPORATION, as the Lessor
Attest:
By:
President
By:
Secretary
[CITY SEAL]
CITY OF PUEBLO, COLORADO, as
Lessee
By:
President of the City Counci
Attest:
By:
City Clerk
-34-
STATE OF COLORADO
CITY OF PUEBLO
ss.
The foregoing instrument was acknowledged before me this
day of 1990, by
as President, an y , as Secretary, of
the City of Pueblo, Colorado Muni.cipa Bui ding Corporation, a
Colorado nonprofit corporation.
WITNESS my hand and official seal.
[SEAL]
My commission expires:
Notary Public
-35-
STATE OF COLORADO
CITY OF PUEBLO
ss.
The foregoing instrument was acknowledged before me as of
the day of 1990, b
as Presi3ent of the City Council of he City o Pue o
o, Colorado
and by Marian D. Mead, as City Clerk of the City of Pueblo,
Colorado.
WITNESS my hand and official seal.
[SEAL]
My commission expires:
Notary Public
-36-
EXHIBIT A
CITY OF PUEBLO, COLORADO MUNICIPAL BUILDING CORPORATION
A parcel of land located within the City of Pueblo, State of
Colorado described as follows:
Lots 1 to 9, Lots 11, 12, and 13, Lots 17 to 32, Block 70, South
Pueblo.
Lots A, B, C & D in Trackage Subdivision, A Resubdivision of
Lots 14, 15, and 16, Block 70, South Pueblo.
Lots 1 to 16, Lots 17 to 32, Block 80, South Pueblo.
Together with that portion of Mechanic Street vacated by
Ordinance No. 976, recorded September 19, 1980 in Book 2044 at
Page 622, all the alleys in Blocks 70 and 80 vacated by
Ordinance No. 1524, recorded November 20, 1980 in Book 2051 at
Page 503, and portion of "E" Street vacated by Ordinance no. 51,
recorded March 3, 1950 in Book 1117 at page 358 and recorded
June 18, 1953 in Book 1212 at Page 360 appurtenant thereto.
Also Grantor's interest in all portions of vacated alleys in
said Blocks, and in all portions of vacated Mechanic Street and
"E" Street appurtenant thereto.
A -1
EXHIBIT B
CITY OF PUEBLO, COLORADO MUNICIPAL BUILDING CORPORATION
SCHEDULE OF BASE RENTALS
B -1
Base Rentals
Base Rentals
Principal
Interest
Total
Date
Component
Component
Base Rental
2/15/90
$97,500.00
$ 1,318.33
$98,818.33
2/15/91
66,500.00
28,050.00
94,550.00
2/15/92
70,500.00
24,060.00
94,560.00
2/15/93
75,000.00
19,830.00
94,830.00
2/15/94
80,000.00
15,330.00
95,330.00
2/15/95
85,000.00
10,530.00
95,530.00
2/15/96
90,500.00
5,430.00
95,930.00
Total:
$ 565,000.00
$ 104,548.33
$ 669,548.33
B -1
� wyl I'
EXHIBIT C
CITY OF PUEBLO, COLORADO MUNICIPAL BUILDING CORPORATION
SCHEDULE OF CERTAIN PERMITTED ENCUMBRANCES
[To be taken from Title Insurance Policy Schedule B.]
C -1
The printed porIiuns of this form approved by the
Colorado Real I.state Commission (CBS 2 -5.89)
TIIIS IS A LEGAL INSTRUMENT. IF NOT UNDERSTOOD, LEGAL, TAX OR OTHER COUNSEL SHOULD BE CONSULTED BEFORE SIGNING.
COMMERCIAL
CONTRACT TO BUY AND SELL REAL ESTACE
Seller's remedy Liquidated Damages or Specific Performance (Section 16)
January 10 I ,, 90
1. PARTIES AND PROPERTY. Pueblo, a m uni ci p al p al c or p orati on
, purchaser(s) IPurchaserl, fac3oa>tterurmttmtcirsxvrmarar)
agrees ul buy, and the undersigned seller(s) ISellerl, agrees to sell, on the terns and conditions set forth in this contract, the following described real
estate in the County of Pit _b 1 o —Colorado, Colorado, RFVRF= described in attached
Exhibit "A"
knownasNo. 108 -132 S. Main Street and 101 -131 S. Oneida Pueblo CO 8 1_003
(Street Address, City, State, Zip)
together with all interest Of Seller In vacated streets and alleys adjacent thereto, all casements and other appurtenances thereto, all improvements thereon
and all attached fixtures thereon, except as herein excluded, and called the Property.
2. INCLUSIONS. The purchase price includes the following items (a) if attached to the Property on the date of this contract: lighting, heating,
plumbing, ventilating, and air conditioning fixtures, smoke /fire /burglar alarms, security devices, inside telephone wiring and connecting blocks /jacks,
plants, floor coverings, intercom systems, built -in kitchen appliances, and sprinkler systems and controls; and (b) if on the Property whether attached or
not on the date of this contract: None
The above- described included items (Inclusions) arc to be conveyed to Purchaser by Seller by bill of sale at the closing, free and clear of all taxes, liens and
encumbrances, except as provided in section 10.
The following attached fixtures are excluded from this sale: None
J. PURCHASE PRICE AND TERMS. The purchase pricc shall be S 5 5 • 0 ( IQ —.0 0 __ , pay „)lc itt7r�,` tfr�fArfiS tWt7TlirtlR5Fra1C
as provided in Section 20.0 of attached
(a) Earnest Money. Exhibit "B”
S
1 00 .00 in the form of check as earnest money deposit and part payment of the purchase
price, payable to and held by SQUthWeSt Bro raQ ,-_ Cnrp , broker, nl broker's trust
account on behalf of both Seller and Purchaser. Broker is authorized to deliver the earnest money deposit to the closing agent, if any, at or helow closing.
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No.CRS2 -5 COMMERCIAL CONTRACT TO BUY AND SELL REAL ESTATE
Iha,n,nd 1'uhns ....l 1 1.1 1 w,; 'n tit . I ".", (u NO202 (lit 11'q 2.2 .. e. N9
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7. EVIDENCEOFTITLE. Seller shall furnish to Purchaser. at Seller expense. cithera current commitment for owner's title insurance Policy in
an aniount equal to the purchase priccx=t::5Wkr_W =a=xbzb= I E on or before January 9 9
19 QC) • I I i F -ished, Purchaser may require of Seller that copies of instruments (or abstracts of instruments)
li%lc(l in the schedule or exceptions (Exceptions) in the title insurance commitment also he furnished to Purchaser at Seller's expeme . This requirement
shall Pertain only to instruments shown of record in the office of the clerk and recorder of the designated county or counties. The title insurance
commiltricril, foLelher with any copies or abstracts of instrument-, furnished pursuant to this section 7, constitute the title documents (Title Documents).
Purchaser must request Seller to furnish copies or abstracts of instruments listed in the schedule of exceptions no later than-__L5 - - - calendar days
after Purchaser's receipt of the title insurance commitment;4ftftlp fa I - a it 1 . ... ... 1; Seller will have the title insurance policy
delivered to Purchaser as soon as practicable after closing and pay the premium at closing.
R. i (a) Title Review. Purchaser shall have the right to inspect the Title Document!FM OPMWI- Written notice he Purchaser of
unmerchantability of title or of any other unsatisfactory title condition shown by the Title Documents aF7tto:Faita = shall be signed by or on behalf of
Purchaser and given to Seller or Listing Company on or before =15- calendar (lays after Purchasers receipt of Title Docun-I! MVMV%FF, or
within five (5) calendar (lays after receipt by Purchaser of ariv Title D(worricrit(q) or
new Pxerp!in n!cv fo the
together with a copy , .)fthe Title Document adding new Exception(s) to title. It Seller or Listing Company does not receive Purchaser's notice hN. the date(s)
specified afxwc, Purchaser shall be deemed to have accepted the condition of title as disclosed by the'ritle Documents as %atisfaclorv.
W Matters Not Shown by the Public Records. Seller shall deliver to Purchaser, on or before the dale set forth in section 7. true copies of all
lease(s) and survey(s) in Sellers possession pertaining to the Property and shall disclose to Purchaser all easements, liens or other title matters not shown
by the public records of which Seller has actual knowledge. Purchaser shall have the right to inspect the Property to determine if am third pariv(s) has any
right in the Property not shown by the public records (such as an unrecorded casement, unrecorded lease, or boundary line discrepancy 1. Written notice of
any unsatisfactory condition(s) disclosed by Seller or revealed by such inspection shall be signed by oron hchall'of Purchaser and given to Selleror Listing
Company on or before Ft-hrILary 11; - ' 19 90 A f Seller or Listing Company does not receive Purchaser's notice by
said dale, Purchaser shall he deemed to have accepted title subject to such rights, if any, of third parties of which Purchaser has actual k now ledge.
(c) Right foCure. If Seller or Listing Company receives notice ofunmercharil abilit or t itle or any other unsatisfactory title conditions as provided
in subsection (a) or (b) above, Seller shall use reasonable effort to correct said unsatisfactory title condition(s) prior to the date of closing. If Seller fails to
correct said unsatisfactory title condition(s) on or before the dale of closing, this contract -hall then terminate, subject to section 17: provided. however,
Purchaser may, by written notice received by Seller or Listing Company on or before closing, waive objection to said unsatisfactory title condition(s).
9. DATE OF CLOSING. The date of closing shall be February 22 or later/ , lq 9 9 _ , or by mutual agreement at an earlier date.
The hour and place of closing shall be as designated by P ureh as e r
10. TRANSFER Or TITLE. Subject to tender or payment on closing as required herein and compliance by Purchaser with the other terns and
provisions hereof, Seller shall execute and deliver a good and sufficient genera 1 warm n y decd to Purchaser,
on closing, comes tng the Property free and clear of all taxes except the general taxes for the year of closing, and except rime
; free and clear of all liens for special improvenncnis installed as of the date
of Purchaser's signature hereon, whether assessed or not; except distribution utility easements, including cable TV; except those matters reflected by the
Title Documents accepted by Purchaser in accordance with subsection 80); except those rights, if any, of third parties in the Property not shown by the
public records in accordance with subsection 8(b): and subject to building and zoning regulations.
11. PAYMENT OF ENCUMBRANCES, Any encumbrance required to be paid shall be paid at or before the time of settlement from the proceeds
of this transaction or from any other source.
12. CLOSING COSTS, DOCUMENTS AND SERVICES. Purchaser and Seller shall pay their respective closing costs at closing, except as
otherwise provided herein. Purchaser and Seller shall sign and complete all customary or required documents at or before closing. Fees for real estate
closing and settlement services shall not exceed 5 - Q . 0 0 and shall he paid at closing by 1Z2 h y Seller and-_
1 �� by PLrc�ha.
13. PRORA7'IONS. General taxes for the year of closing, based on the most recent levy and the most recent assessment, rents, water and sewer
charges, owner's association dues, and interest on continuing loan(s), if anyFR
shall be prorated to date of closing.
Any sales, use and transfer tax that may accrue because of this transaction shall be paid by Pi•t rrh a se r
14. POSSESSION. Possession of the Property shall be delivered to Purchaser inim on date of c l osing
subject to the following lease(s) or tenancy(s): none.
If Seller, after closing, fails to deliver Possession on the date herein specified. Seller shall be subject to eviction and shall be additionally liahle It,
Purchaser for payment of S 2 00 . 0 0 per day from the date of agreed Possession until possession is delivered.
15. CONDITION OF AND DAMAGE TO PROPERTY. The Property and Inclusions shall be conveyed in their prewnt condition, ordinary
wear and tear excepted. In the event the Property shall be damaged by fire or other casualty prior to tune of closing, to an amount of um more than
ten Percent of file total purchase price. Seller shall be obligated to repair the same before the date of closing. In the event such dama)te is not rcpated
within said time or if the damages exceed such sum, this corn ract may be terminated at the option of Purchaser. Should Purchaser elect to carry out this
contract despite such damage, Purchaser shall be entitled to credit for all the insurance proceeds resulting front such damage to the Property and
Inclusions, not exceeding, however, the total purchase price. Should any Inclusion(s) or service(s) fail or tic damaged between the Jane of till cunttac
and the date of closing or the date of possession, whichever shall be earlier, then Seller shall he liable for the repair or replacement of such IucluNiun(Nt
or service(s) with a unit of similar size, age and quality, or an equivalent credit, less any insurance proceeds received by Purchaser covrrmg such
repair or replacement.
16. TIME OF ESSENCEIREMEDIF.S. Time is of the essence hereof. If any note or check received as earnest money hereunder or any other
payment due hereunder is not paid, honored or tendered when due, or if any other obligation hereunder is not performed or waived as herein provided,
there shall be the following remedies:
(a) IF PURCHASER IS IN DEFAULT:
IF THE BOX IN SUBSECTION (1) IS CHECKED, SELLER'S REMEDIES SHALL BE AS SET FORTH IN SLIBSI :('TION
(1) ISPECIFIC PERFOhN1ANCEJ. IF SAID BOX IS NOT CHECKED, SELLER'S REMEDIES SHALL BE AS SET
FORTH IN SUBSECTION (2) [LIQUIDATED DAMAGES].
❑ (1) Specific Performance.
Seller may elect to treat this contract as cancelled. in which case all payments and things of value received hereunder shall le lorfeued and tetained
on behalf of Seller, and Seller may recover such damages as may be proper, or Seller may elect to treat this contract as Ientg in full lorce and cl lest
and Seller shall have the right to specific performance or damages, or both.
(2) Liquidated Damages.
All payments and things of value received hereunder shall be forfeited by Purchaser and n etained on behalf of Seller and both parties steal I thereatler
be released from all obligations hereunder. It is agreed that such payments and things of value are LIQUIDATED DAMAGES and (except as
provided in subsection (c)) are SELLER'S SOLE AND ONLY REMEDY for Purchaser's failure to perform the obligations of this contract. Seller
expressly %% awes the remedies of specific performance and additional damages.
(b) IF SELLER IS IN DEFAULT:
Purchaser may elect to treat this contract as cancelled, in which case all payments and things of value received hereunder shall be retuned and
Purchaser may recover such damages as may be proper, or Purchaser may elect to treat this contract as being in full lures and effect and
Purchaser shall have the right to specific performance or damages, or both.
(c) COSTS AND EXPENSES.
Anything to the contrary herein notwithstanding, in the event of any litigation orarbiiration arising out of this contract, the court shall award to
the prevailing party all reasonable costs and expense, including attorney fees.
17. EARNEST MONEY DISPUTE. Notwithstanding any termination of this contract, Purchaser and Seller agree that, in the event of ;Inv
controversy regarding the earnest money and things of value held by broker orclosing agent, unless mutual written instructions are recetvcd by she holder
of the earnest nx,ney and things of value, broker or closing agent shall not he required to take any action but may await any proceeding, or at bwkcr's or
closing agent's option and sole discretion, may interplead all parties and deposit any moneys or things of value into a court of competent juriNdictiun and
shall recover court costs and reasonable attorney fees.
/ and environmental
18. INSPECTION. Purchaser or any designee, shall have the right to have insLxction(s) of the physical Condition of the Property and Inclusions,
I
at Purchaser's expense. If written notice of any unsatisfactory condition, signed by Purchaser, is not received by Seller or Listing Company
on or before Fahrnarx _15 19 4Q_ , $3l' di
� nd the "contion of the Property e
Inclusions shall
'
be deemed to be satisfactory to Purchaser. If written notice of any unsatisfactory condition, signed by Purchaser, is given to Seller or Listing Company
as set forth above in this section, and Purchaser and Sclier have not reached a written agreement in settlement thereof on or before
February 22 19 90 , this contract shall then terminate, subject to section 17. Purchaser is responsible and shall
pay for any damage which occurs 16 the Property and Inclusions as a result of such inspection.
x 19. AGENCY DISCLOSURE. The listing broker, S O U hWe Gt Brok r e Co rp. _
and its sales agents (Listing Company) represent Seller. The Listing Company owes duties of trust, loyally and confidence loo Seller only. While the
Listing Company has a duty to treat Purchaser honestly. the Listing Company is Seller agent and is acting on behalf of Seller and not P urchaser.
BY SIGNING BELOW, PURCHASER ACKNOWLEDGES PRIOR TIMELY NOTICE BY LISTING OR SELLING COMPANY TLIAT LISTING
COMPANY IS SLLLER'S AGENT.._.
The selling broker, SOUthW Gt - Brokerage Corp
_and its sales gents (Selling Company) represent: (IF "I'HE BOX IN SUBSECTION (b) IS CHECK[-[), SELLING (;OMPANY
RFPRESF.NTS PURCHASER ONLY, AS SET FORTH IN SUBSECTION (b). IF THE BOX IN SUBSECTION (b) IS NOT
-- UHEC'KED. 'COMPANY REPRESENTS SELLER ONLY, AS SET FORTH IN SUBSECTION (a).]
(�)'Setler. The Selling Company owes duties of trust, loyalty and confidence to Seller only. While the Selling Company has a duty to treat
Puro,ha+wr hgpotly, the Se lliug Company is Sellers agent and is acting on behalf of Seller and not Purchaser. BY SIGNING BELOW, PURCHASER
ACKNOWLEDGES PRIOR TIMELY NOTICE BY SELLING COMPANY THAI' SELLING COMPANY IS SELLER'S AGENT.
_ ..._..._ __.._.._.- •-- -- -.
❑ (b) Purchaser. If the box is checked: The Selling Company owes duties of trust, loyalty and confidence to Purchaser only. While the Selling
Company has a duty to treat Seller honestly, the Selling Company is acting on behalf of Purchaser and not Seller. SELLER AND LISTING COMPANY
ACKNOWLEDGE PRIOR TIMELY NOTICE BY SELLING COMPANY THAT IT IS PURCHASER'S AGENT.
._1o..AI1D1TIONALPROVISIQINS: contained in attached Exhibit "Bit.
------------- r - ------ ---- ......................
.._..
21. RECOMMENDATION OF LEGAL COUNSEL. By signing this document, Purchaser and Seller acknowledge that the Selling ('unipany
or the Listing Company has recommended that Purchaser and Seller obtain the advice of their own legal counsel regarding examinalnm ul till(. and
this contract.
21. TERMINATION. In the event this contract is terminated, all payments and things of value received hereunder ,hall be r•un ucd :std the
parties shall be relieved of all obligations hereunder, sub Cct to section 17.
23. NOTICE; OF ACCEPTANCE/COUNTERPARTS. If this proposal is accepted by Seller in writing and Purchaser receives nniice f ,uch
acceptance on or before a Ja *-y 15 19 9 O this document shall become a contract between Seller and I'ur. oq r.
JcentcJ to be a full lik
A copy of this document complete contract between the parties. may e execute by each party, separately, aril when each party has executed a copy thereof, such copies taken iogetlicr,hall be
ll a rul
1Y P RATION 1/ 10/90
' V Purch
B � 9 Vale C ftVcrManager Daie
Purchasers Address 1 C'i t v II 1 1
[TO BE COMPLETED BY SELLER ANI) LISTING (PANYJ
24. ACCEI'' Seller accepts the above proposal this - of ,Tan Iia rr
Seller shall pay to the Listing Company a commission of 8 % of the gross purchase pric or _ 4 r . 2 0 0 . 0
as agreed upon between Seller and Listing Company for services in this transaction. In the event o orlciture of payments and things of value received
hereunder, such payments and things of value shall be divided between Listing Company and S ler, one -half to Listing Company, but nut to
exceed the commission, and the balance to Seller.
WEXCKER INVESTMENT COMPANY by 1 / /Zf90
Seller Date =StmaG
u e or resiTe�
Seller's Address 3 6 S t ee I e 5 { r Sp } :; i} 1 H r I)
�— �1SL�z'
The undersigned Selling Company acknowledges receipt of the earnest money deposit specified in section 3 and both Selling Company and Listing
Company confirm the respective agency disclosure set forth in section 19.
Selling Company
SOUTHWEST BROKERAGE CORP. By: -
(Signature) l �...- ..� 1/10/90
Address n Ave . site 200, Pueb lo, CO Rionj Date
Listing Company
SOUTHWES BROKERAGE CORP. By: '
(Signature) ` .. 1 / 10 Igo
Address 319 South Union Ave. Suite 200 Pueblo CO 8 003 Date
EXHIBIT "A" LEGAL DESCRIPTION
TO COMMERCIAL CONTRACT TO BUY AND
SELL REAL ESTATE DATED JANUARY 10, 1990
BETWEEN PUEBLO AND WEICKER INVESTMENT COMPANY
Lots 1 to 9, Lots, 11, 12 and 13 Lots 17 to 32, Block 70
South Pueblo.
Lots A, B, C & D in Trackage Subdivision, A Resubdivision of
Lots 14, 15, and 16, Block 70, South Pueblo.
Lots 1 to 16, Lots 17 to 32, Block 80, South Pueblo.
Together with that portion of Mechanic Street vacated by Ordinance
No. 976, recorded September 19, 1980 in Book 2044 at Page 622,
all the alleys in Blocks 70 and 80 vacated by Ordinance No. 1524,
recorded November 20, 1980 in Book 2051 at page 503, and portion
of "E" Street vacated by Ordinance No. 51, recorded March 3, 1950
in Book 1117 at page 358 and recorded June 18, 1953 in Book 1212
at Page 360 appurtenant thereto.
Also Grantor's interest in all portions of vacated alleys in said
Blocks, and in all portions of vacated Mechanic Street and "E"
Street appurtenant thereto.
EXHIBIT "B ", ADDITIONAL PROVISIONS
TO COMMERCIAL CONTRACT TO BUY AND
SELL REAL ESTATE DATED JANUARY 10,
1990 BETWEEN PUEBLO AND WEICKER
INVESTMENT COMPANY
20. Additional Provisions. Notwithstanding any provision in
this Contract to the contrary, Seller and Purchaser agree:
A. The title insurance policy referred to in Section 7
of this Contract shall be issued on ALTA Owner's Policy (10- 21 -87)
form with standard printed exceptions 1, 2, 3 and 4 deleted
covering the Property through the date and time of recording the
warranty deed from Seller to Purchaser. The Title Documents and
all notices to Purchaser shall be delivered to Purchaser's
attorney, Thomas E. Jagger, 127 Thatcher Building, Pueblo,
Colorado, 81003.
B. This Contract and Purchaser's performance hereunder
are subject to and conditioned upon:
(i) Approval of this Contract by Resolution
adopted by the City Council of Purchaser; and,
(ii) Purchaser's satisfaction, in the exercise of
its sole discretion, with (a) the physical and environmental
condition of the Property, (b) all Title Documents, including
without limitation, title insurance, restrictions, reserva-
tions, covenants and easements, and (c) survey; and,
(iii) Seller cleaning up and removing at its expense
prior to closing, in accordance with applicable law and
regulations, to the satisfaction of Purchaser, all
underground fuel storage tanks, asbestos and Environmental
Contamination from the Property; and,
(iv) Issuance of the Certificates of Participation
described in Section 20.0 of this Contract.
C. The purchase price shall be paid by Purchaser
delivering to Seller at closing tax exempt Certificates of
Participation to be issued by the City of Pueblo, Colorado
Municipal Building Corporation in the principal amount of $565,000
with interest at the rate of 6% per annum maturing in accordance
with the attached Debt Service Schedule, Exhibit "C." The first
Certificate of Participation will mature on closing in the amount
of $97,500 plus interest, if any, and out of the proceeds thereof,
Seller shall pay at closing:
(i) to Purchaser, interest, if any, on the
Certificates of Deposit from date of issuance to date of
closing, Purchaser's $100.00 earnest money, and Seller's pro -
rata share of taxes for 1990 and other items pro rated under
this Contract.
(ii) to Pueblo County Treasurer, all general taxes
for 1989 and personal property taxes for 1990, and prior
years, including penalty and interest, if any.
(iii) to persons entitled thereto, all Seller's
costs of closing this transaction, including without
limitation, title insurance premium, recording, closing and
settlement fees, and brokers' fees and commissions.
(iv) to persons entitled thereto, all liens and
encumbrances against the Property and all costs of
Environmental Contamination removal and clean -up.
D. Seller represents and warrants that, except as
described in writing to Purchaser prior to the date of this
Contract, there has been no disposal, discharge,deposit,
injection, dumping, leaking, spilling, placing or escape of any
hazardous substance, pollutant or contaminant (as those terms are
defined under 42 USC §9601, et seq. or 49 USC 51801, et seq. or
regulations promulgated pursuant thereto, or any other federal,
state or local governmental law, ordinance, rule or regulation) or
any other chemical, biological or radiological substance (herein
collectively "Environmental Contamination ") on, in, under, from,
of affecting the Property, and there is no known or suspected
Environmental Contamination outside the Property which threatens
to or may migrate upon or under the Property. Seller shall
defend, indemnify, and hold harmless Purchaser, its officers,
employees and agents from and against any claims, demands,
penalties, fines, liabilities, settlements, damages, costs, or
expenses arising out of or in any way related to (i) the presence,
disposal, release, or threatened release of any Environmental
Contamination on, in, under, from or affecting the Property, (ii)
any legal or administrative proceedings brought or threatened,
settlement reached, or government order relating to such
Environmental Contamination, or (iii) any violation of laws,
orders, regulations, requirements or demands of governmental
authorities, which are based upon or in any way related to such
Environmental Contamination, without limitation, reasonable
attorney's and consultant's fees, investigation and laboratory
fees, court costs, and litigation expenses. The provisions of
this paragraph shall survive closing.
E. If any provision of Section 20 conflicts with any
other provision of this Contract, to the extent of such conflict
the provisions of Section 20 shall control.
-2-
EXHIBIT "C ", DEBT SERVICE SCHEDULE
TO COMMERCIAL CONTRACT TO BUY AND SELL
REAL ESTATE DATED JANUARY 10, 1990 BETWEEN
PUEBLO AND WEICKER INVESTMENT COMPANY
DATE
PRINCIPAL
COUPON
- - - - -- ---------
INTEREST
- - - - -- --------
PERIOD TOTAL
- - - - -- --------
FISCAL TOTAL
- - - - --
-- - - - - -- ---------
2/ 22/yr►
- - - - --
97, 500.00
----
6. 000000
1,318.33
9H, 618.33
9Q, (318. 3
2/22/91
66 , 5r ►lj . x►rr
6. 000000
28,050.00
94, 550. Oc_►
94,550.00
2/22/92
70 ,50 t'r.0 (1
6.000000
24,060.00
94,560.00
94,560.00
2/22/93
75,U00.00
6.000000
19,830.00
94,030.00
94,830.00
2/22/94
Bc), 000. i i► i
6.00(-
15,3_310. 00
95, 33i►, ►]x►
95,330.00
2/22/95
85, 000.(10
6.000000
10,530.00
95,530.00
95,530.00
2/22/96
9( 500.00
6.0010)000
5,430.00
95,930.00
95,930.00
,!,� 01x10.001
104, 548. 33
669, 548.33
ACCRUED
104,548.33 669,548.33
Dated 2/22 /90 with Delivery of 2/22/9C)
Bond Years 1,742
Average Coupon 6.O�i0>i>x►ci
(average L i f e 3. 004022.
N I C % 6.Q00000 % Using 100. x►x )c;►0►p010
BERKOWITZ, BRADY & BACWS
DRAFT DAM -F g
SUBJECT TO VERIFICATION ANC)CHM
MORTGAGE AND INDENTURE OF TRUST
By and between
CITY OF PUEBLO, COLORADO MUNICIPAL BUILDING CORPORATION,
as Lessor,
and
THE PUEBLO BANK AND TRUST COMPANY,
as Trustee
Dated as of February 1, 1990
TABLE OF CONTENTS
(This Table of Contents is not a part of this Indenture of
Trust and is only for convenience of reference.)
Page
PREAMBLES .................. ............................... 1
ARTICLE I
DEFINITIONS AND CONSTRUCTION
Section 1.01 Definitions 4
Section1.02 Construction ............................... 6
ARTICLE II
AUTHORIZATION, TERMS, EXECUTION
AND ISSUANCE OF CERTIFICATES
Section
2.01.
Authorized Amount of Certificates ..........
6
Section
2.02.
Issuance of Certificates .................
6
Section
2.03.
Limited Obligation .........................
8
Section
2.04.
Execution of the Certificates ..............
8
Section
2.05.
Authentication .............................
9
Section
2.06.
Form of Certificates .....................
9
Section
2.07.
Delivery of the Certificates ...............
9
Section
2.08.
Mutilated, Lost, Stolen or
Destroyed Certificates .....................
9
Section
2.09.
Registration of Certificates; Persons
Treated as Registered Owners; Transfer
and Exchange of Certificates ...............
10
Section
2.10.
Cancellation of Certificates ...............
11
ARTICLE III
REVENUES AND FUNDS
Section
3.01.
Source of Payment of Certificates ..........
11
Section
3.02.
Creation of the Certificate Fund ...........
11
Section
3.03.
Payments Into the Interest Account of
Section
3.04.
the Certificate Fund .. .......... ......
Payments Into the Principal Account of
11
Section
3.05.
the Certificate Fund ... ........ ......
Use of Moneys in the Certificate Fund
und ......
11
12
Section
3.06.
Custody of the Funds .. ......
12
Section
3.07.
.........
Creation of the Extraordinary Fun.........
d
12
i
Page
Section
3.08.
Creation of the Expenses Fund ..............
12
Section
3.09.
Nonpresentment of Certificates ..............
13
Section
3.10.
Reports to City . ..... . .
13
Section
3.11.
......
Repayment to the City from theTrustee .....
13
Section
Section
3.12.
3.13.
Rebate Fund ................................
Rebate Deposits
13
Section
3.14.
.....................
Rebate Disbursements
14
Section
4.05.
.......................
14
Section
4.06.
ARTICLE IV
17
INVESTMENTS
Section 5.01. Investment of Moneys ....................... 17
Section 5.02. Arbitrage Certification .................... 18
ARTICLE VI
DISCHARGE OF INDENTURE
Section 6.01. Discharge of Indenture ..................... 19
ARTICLE VII
DEFAULTS AND REMEDIES
Section
Section
7.01.
7.02.
REDEMPTION OF CERTIFICATES
20
21
Section
4.01.
Redemption Dates and Prices ................
14
Section
4.02.
Redempton Upon Termination of the
22
22
Section
7.05.
Lease Term by Reason of Certain Events .....
15
Section
4.03.
Notice of Redemption .......................
16
Section
4.04.
Redemption Payments ........................
16
Section
4.05.
Cancellation
23
Section
4.06.
.... ............
... ... .........
Delivery of New Certificates Upon
17
Section
7.09.
Partial Redemption of Certificates .........
17
ARTICLE V
24
INVESTMENTS
Section 5.01. Investment of Moneys ....................... 17
Section 5.02. Arbitrage Certification .................... 18
ARTICLE VI
DISCHARGE OF INDENTURE
Section 6.01. Discharge of Indenture ..................... 19
ARTICLE VII
DEFAULTS AND REMEDIES
Section
Section
7.01.
7.02.
Events of Default ...................... ....
Remedies on Default ..................
20
21
Section
7.03.
������
Majority of Participants May
Section
7.04.
ControlProceedings ........................ .....................
Rights and Remedies of Participants ........
22
22
Section
7.05.
Purchase of Project by Participants
or Trustee; Application of Certificates
Section
7.06.
TowardPurchase Price ......................
Waiver of Appraisement, Valuation,
22
Section
7.07.
Stayand Extension .........................
Trustee May Enforce Rights Without
23
Section
7.08.
Certificates . . ...
Delay or Omission NoWaiver ............
23
24
Section
7.09.
No Waiver of One Default to Affect
Another ...............................
24
ii
ARTICLE IX
SUPPLEMENTAL INDENTURES AND
AMENDMENTS OF THE LEASE
Section 9.01. Supplemental Indentures Not Requiring
Consent of Participants .................... 29
Section 9.02. Supplemental Indentures Requiring Consent
ofParticipants ............................ 30
Section 9.03. Execution of Supplemental Indenture ........ 31
Section 9.04. Amendments, Etc., of the Lease Not
Requiring Consent of Participants .......... 31
Section 9.05. Amendments, Etc., of the Lease Requiring
Consent of Participants .................... 31
ARTICLE X
MISCELLANEOUS
Section 10.01. Evidence of Signature of Participants
and Ownership of Certificates .............. 32
Section 10.02. Covenants of Lessor 33
Section 10.03. Inspection of the Project .................. 33
Section 10.04. Parties Interest Herein 33
Section 10.05. Titles, Headings, Captions, Etc. 33
Section 10.06. Severability ............................... 33
Section 10.07. Governing Law 34
Section 10.08. Execution in Counterparts .................. 34
Section 10.09. Notices 34
Section 10.10. Payments Due on Holidays ....... 34
Section 10.11. Lessor, City and Trustee Representatives ... 34
TESTIMONIUM . • ....... ............................... 35
SIGNATURES AND SEALS ....... ............................... 36
ACKNOWLEDGEMENTS ........... ............................... 36
EXHIBIT A - -Form of Certificate of Participation ........... A -1
EXHIBIT B -- Description of the Site ........................ B -1
iii
Page
Section
7.10.
Discontinuance of Proceedings on Default;
Position of Parties Restored ...............
24
Section
7.11.
Waivers of Events of Default
24
...............
ARTICLE VIII
CONCERNING THE TRUSTEE
Section
8.01.
Duties of the Trustee ..............
25
Section
8.02.
Fees and Expenses of Trustee ...............
27
Section
8.03.
Resignation or Replacement of Trustee ......
28
Section
8.04.
Conversion, Consolidation or Merger
Section
8.05.
of Trustee . . ....
..
Intervention byTrustee ...............
29
29
Section
8.06.
Escrowed Deed and Bill of Sale .............
29
ARTICLE IX
SUPPLEMENTAL INDENTURES AND
AMENDMENTS OF THE LEASE
Section 9.01. Supplemental Indentures Not Requiring
Consent of Participants .................... 29
Section 9.02. Supplemental Indentures Requiring Consent
ofParticipants ............................ 30
Section 9.03. Execution of Supplemental Indenture ........ 31
Section 9.04. Amendments, Etc., of the Lease Not
Requiring Consent of Participants .......... 31
Section 9.05. Amendments, Etc., of the Lease Requiring
Consent of Participants .................... 31
ARTICLE X
MISCELLANEOUS
Section 10.01. Evidence of Signature of Participants
and Ownership of Certificates .............. 32
Section 10.02. Covenants of Lessor 33
Section 10.03. Inspection of the Project .................. 33
Section 10.04. Parties Interest Herein 33
Section 10.05. Titles, Headings, Captions, Etc. 33
Section 10.06. Severability ............................... 33
Section 10.07. Governing Law 34
Section 10.08. Execution in Counterparts .................. 34
Section 10.09. Notices 34
Section 10.10. Payments Due on Holidays ....... 34
Section 10.11. Lessor, City and Trustee Representatives ... 34
TESTIMONIUM . • ....... ............................... 35
SIGNATURES AND SEALS ....... ............................... 36
ACKNOWLEDGEMENTS ........... ............................... 36
EXHIBIT A - -Form of Certificate of Participation ........... A -1
EXHIBIT B -- Description of the Site ........................ B -1
iii
MORTGAGE AND INDENTURE OF TRUST
THIS MORTGAGE AND INDENTURE OF TRUST dated as of
February 1, 1990 (together with any amendments hereto made in
accordance herewith, this "Indenture "), by and between the CITY
OF PUEBLO, COLORADO MUNICIPAL BUILDING CORPORATION (the
"Lessor "), a nonprofit corporation duly organized and existing
under the laws of the State of Colorado, and The Pueblo Bank and
Trust Company, as trustee (the "Trustee "), having an office and
principal place of business in Pueblo, Colorado, duly organized
and existing under the laws of the State of Colorado, being
authorized to accept and execute trusts of the character herein
set out under and by virtue of the laws of the State of
Colorado;
W I T N E S S E T H:
WHEREAS, the City of Pueblo, Colorado (the "City'), for the
purposes of financing the acquisition of a public works and
transportation facility (the "Facility ") on certain real
property owned by the Lessor, ( "Site ") has entered into an
annually renewable Lease Purchase Agreement of even date
herewith (the "Lease "), between the Lessor, as lessor, and the
City, as lessee, whereby the City has leased from the Lessor the
Site (the Facility and the Site are collectively referred to
herein as the "Project "); and
WHEREAS, pursuant to the Lease, and subject to the right of
the City to terminate the Lease and other limitations as therein
provided, the City will pay certain Base Rentals and Additional
Rentals (as such terms are defined in the Lease) in
consideration for the right of the City to use the Project; and
WHEREAS, pursuant to this Indenture, the right of the
Lessor to receive the Base Rentals, and rights to receive
certain other payments as provided herein and in the Lease (with
certain exceptions as provided herein and in the Lease), have
been assigned to the Trustee; and
WHEREAS, pursuant to this Indenture, the Lessor has also
granted to the Trustee a first mortgage on and a security
interest in the Project, subject only to Permitted Encumbrances;
and
WHEREAS, there will be executed and delivered by the
Trustee pursuant to this Indenture one or more Certificates of
Participation (the Certificates "), evidencing assignments of
proportionate interests in rights to receive Base Rentals and
certain other payments, which rights have been assigned to the
Trustee by the Lessor; and
WHEREAS, the Certificates will be sold by the Lessor to the
Company which conveyed the Site to the Lessor, in consideration
of such conveyance; and
WHEREAS, the Trustee has entered into this Indenture for
and on behalf of the Participants, and will hold its rights
hereunder, including its rights with respect to the Project,
except as otherwise specifically provided herein, for the
benefit of the Participants, and will disburse moneys received
by the Trustee in accordance with this Indenture; and
WHEREAS, the Certificates are to be in substantially the
form set forth in Exhibit A to this Indenture, with such
necessary or appropriate variations, omissions and insertions as
permitted or required by this Indenture; and
WHEREAS, all things necessary to make the Certificates,
where executed and delivered by the Trustee and authenticated by
the City as in this Indenture provided, legal, valid and binding
assignments of proportionate interests in rights to receive
Revenues and certain other payments, as herein provided, and to
constitute this Indenture a valid, binding and legal instrument
for the security of the Certificates in accordance with its
terms, have been done and performed;
NOW, THEREFORE, THIS MORTGAGE AND INDENTURE OF TRUST
WITNESSETH:
That the Lessor, in consideration of the premises and the
mutual covenants herein contained and for the benefit of the
Participants and the sum of One Dollar ($1.00) to it duly paid
by the Trustee at or before the execution of these presents, and
for other good and valuable consideration, the receipt of which
is hereby acknowledged, in order to secure the payment of the
principal of, premium, if any, and interest on all Certificates
at any time outstanding under this Indenture, according to their
tenor and effect, and to secure the performance and observance
of all the covenants and conditions in the Certificates and
herein contained, and to declare the terms and conditions upon
and subject to which the Certificates are issued and secured,
has executed and delivered this Indenture and has granted,
bargained, sold, warranted, mortgaged, aliened, remised,
released, conveyed, assigned, pledged, set over and confirmed,
and by the presents does grant, bargain, sell warrant, mortgage,
alien, remise, release, convey, assign, pledge, set over and
confirm unto The Pueblo Bank and Trust Company, as the Trustee,
and to its successors and assigns forever all and singular the
following described property, franchises and income:
(a) the Facility and
Exhibit B hereto) constituting
Permitted Encumbrances;
the Site (as described in
the Project; subject only to
-2-
(b) all rights, title and interest of the Lessor in,
to and under the Lease (except the rights of the Lessor
under Sections 13.3 and 14.6 of the Lease);
(c) all Revenues and any other receipts received by
or on behalf of the Lessor pursuant to the Lease including,
without limitation, (i) all Base Rentals (as defined in the
Lease) to be received from the City pursuant to the Lease
and pursuant to the terms of which Base Rentals are to be
paid directly to the Trustee; (ii) all Net proceeds
received pursuant to the Lease; and (iii) all rights to
enforce payments under the Lease when due or to otherwise
enforce rights under the Lease for the benefit of the
Participants (but excluding the rights of the Lessor under
Sections 13.3 and 14.6 of the Lease);
(d) The Project Documents, including all extensions
and renewals of the term thereof, if any, together with
certain rights, titles and interests of the City in and to
the Project Documents, including, but not limited to, the
present and continuing right to make claim for, collect,
receive and receipt for any of the sums, amounts, income,
revenues, issues and profits and any other sums of money
payable or receivable under the Project Documents, to bring
actions and proceedings thereunder or for the enforcement
thereof, and to do any and all things which the City under
the Project Documents is or may become entitled to; and
(e) all moneys and securities from time to time held
by the Trustee under this Indenture (except the Rebate
Fund) and any and all other real or personal property of
every name and nature from time to time hereafter by
delivery or by writing of any kind specially mortgaged,
pledged or hypothecated, as and for additional security
hereunder, by the Lessor, or by anyone on its behalf, in
favor of the Trustee, which is hereby authorized to receive
any and all such property at any and all times and to hold
and apply the same subject to the terms hereof.
TO HAVE AND TO HOLD the same with all privileges and
appurtenances hereby conveyed and assigned, or agreed or
intended to be, to the Trustee and its successors in said trust
and assigns forever;
IN TRUST, NEVERTHELESS, upon the terms herein set forth for
the equal and proportionate benefit, security and protection of
all Participants, without privilege, priority or distinction as
to the lien or otherwise of any of the Certificates over any
other of the Certificates;
PROVIDED, HOWEVER, that if the principal of the
Certificates and the premium, if any, and the interest due or to
become due thereon, shall be paid at the times and in the manner
mentioned in the Certificates according to the true intent and
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meaning thereof, and if there are paid to the Trustee all sums
of money due or to become due to the Trustee in accordance with
the terms and provisions hereof, then upon such final payment
this Indenture and the rights hereby granted shall cease,
determine and be void; otherwise this Indenture to be and remain
in full force and effect.
THIS INDENTURE FURTHER WITNESSETH and it is expressly
declared, that all Certificates issued and secured hereunder are
to be executed, authenticated and delivered and all said
property, rights, interests, revenues and receipts hereby
pledged, assigned and mortgaged are to be dealt with and
disposed of under, upon and subject to the terms, conditions,
stipulations, covenants, agreements, trusts, uses and purposes
as hereinafter expressed, and the Lessor has agreed and
covenanted, and does hereby agree and covenant, with the Trustee
for the benefit of the Participants, as follows:
ARTICLE I
DEFINITIONS AND CONSTRUCTION
Section 1.01. Definitions All words and phrases defined
in Article I of the Lease shall have the same meaning in this
Indenture. In addition, the following terms, except where the
context indicates otherwise, shall have the respective meanings
set forth below.
"Agreement" means that certain Contract To Buy and Sell
Real Estate dated , 1989 for the sale of the Site,
between the City, the Lessor and the Seller.
"Business Day" means any day other than a Saturday, Sunday
or legal holiday or day on which banking institutions in the
city in which the Trustee has its principal corporate trust
office or in New York, New York are authorized or required by
law to close.
"Deficiency" means the difference between the total amount
of principal and interest due on any Interest Payment Date for
the Certificates and the amount of Base Rentals paid by the City
and deposited in the Certificate Fund on or before such Interest
Payment Date to be used for payment of principal and interest on
the Certificates on such Interest Payment Date.
"Event of Default" means those defaults specified in
Section 7.01 of this Indenture.
"Federal Securities" means direct obligations of, or
obligations the timely payment of principal and interest of
which are fully and unconditionally guaranteed by, the United
States of America.
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"Opinion of Counsel" means an opinion in writing of legal
counsel, who may be counsel to the Trustee, the City or the
Lessor.
"Outstanding" or "Certificates Outstanding" means all
Certificates which have been executed and delivered, except:
(a) Certificates canceled or which shall have been
surrendered to the Trustee for cancellation;
(b) Certificates in lieu of which other Certificates
have been authenticated under Section 2.08 or 2.09 of this
Indenture;
(c) Certificates which shall have been redeemed as
provided in Article IV of this Indenture (including
Certificates redeemed on a partial payment as provided in
Section 4.02 of this Indenture); and
(d) Certificates paid or deemed to be paid in
accordance with the provisions of Article VI of this
Indenture.
"Person" means natural persons, firms, associations,
corporations and public bodies.
"Rebate Fund" means the trust fund by that name created
pursuant to Section 3.12 hereof.
"Rebate Income Account" means the trust account by that
name established with the Rebate Fund pursuant to Section 3.12
hereof.
"Rebate Principal Account" means the trust account by name
established within the Rebate Fund pursuant to Section 3.12
hereof.
"Regular Record Date" means the fifteenth day (whether or
not a Business Day) next preceding each interest payment date
for the Certificates (other than a Special Record Date).
"Seller" means The Weicker Investment Company.
"Special Record Date" means a special date fixed to
determine the names and addresses of Registered Owners for
purposes of paying interest on a special interest payment date
for the payment of defaulted interest, all as further provided
in Section 2.02 hereof.
"Termination Event" means (a) an Event of Nonappropriation,
(b) an Event of Default under the Lease followed by a
determination by the Trustee to terminate the Lease, or (c) an
exercise by the City of its right to terminate the Lease under
Section 10.3 of the Lease.
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"Trust Estate" means the property mortgaged, pledged and
assigned to the Trustee pursuant to the granting clauses hereof.
Section 1.02 Construction IN this Indenture, unless the
context otherwise requires:
(a) Articles and Sections referred to by number shall
mean the corresponding Articles and Sections of this
Indenture.
(b) The terms "hereby," "hereof," "hereto," "herein,"
"hereunder" and any similar terms refer to this Indenture,
and the term "hereafter" shall mean after, and term
"heretofore" shall mean before, the date of execution and
delivery of this Indenture.
(c) Words of the masculine gender shall mean and
include correlative words of the female and neuter genders,
and words importing the singular number shall mean and
include the plural number and vice versa.
(d) Words importing the redemption of a Certificate
or the calling of a Certificate for redemption do not
include or connote the payment of such Certificate at its
stated maturity or the purchase of such Certificate.
(e) References in this Indenture to particular
sections of the Code, or any other legislation shall be
deemed to refer also to any successor sections thereto or
other redesignations for codification purposes and shall be
deemed to include any related Regulations.
(f) The terms "receipt," "received," "recovery,"
"recovered" and any similar terms, when used in this
Indenture with respect to moneys or payments due, shall be
deemed to refer to the passage of physical possession and
control of such moneys and payments to the Trustee.
ARTICLE II
AUTHORIZATION, TERMS, EXECUTION
AND ISSUANCE OF CERTIFICATES
Section 2.01. Authorized Amount of Certificates No
Certificates shall be issued hereunder except in accordance with
this Article II. The aggregate principal amount of Certificates
that may be issued shall be $565,000.
Section 2.02 Issuance of Certificates The Certificates
shall be issued in the form attached hereto as Exhibit A and
shall constitute assignments of proportionate undivided
interests in the right to receive Revenues under the Lease.
IM.
The Certificates shall be issuable solely as fully
registered Certificates without coupons in the denominations of
$1,000 and any integral multiple thereof. The Certificates
shall be lettered "R" and shall be numbered separately from 1
upward.
The Certificates shall be dated as of their date of their
authentication by the Trustee. The Certificates shall bear
interest from February 1, 1990; provided, however, that if
interest on the Certificates shall be in default, Certificates
issued in exchange for Certificates surrendered for transfer or
exchange shall bear interest from the date to which interest has
been paid in full on the Certificates so surrendered.
The Certificates shall bear interest payable annually on
February 15, of each year commencing February 15, 1990, until
such Certificates are paid pursuant to the provisions of this
Indenture.
The Certificates shall mature on February 15 of the years,
and in the amounts, and shall bear interest at the rates per
annum, set forth below:
Maturity
Interest
Date
Rate
(February 15)
Amount
Per Annum
1990
$97,500
6.0%
1991
66,500
6.0
1992
70,500
6.0
1993
75,000
6.0
1994
80,000
6.0
1995
85,000
6.0
1996
90,500
6.0
The principal of and premium, if any, on the Certificates shall
be payment to the registered owner thereof as shown on the
registration books of the City kept by the Trustee, upon
presentation and surrender thereof at the principal corporate
trust office of the Trustee or its successor. Payment of
interest on any Certificate shall be made to the registered
owner thereof by check or draft mailed by the Trustee, on or
before each interest payment date (or, if such interest payment
date is not a Business Day, on or before the next succeeding
Business Day), to the registered owner thereof at the address of
such registered owner shown on the registration books of the
City kept by the Trustee at the close of business on the Regular
Record Date for such interest payment date; but any such
interest not so timely paid or duly provided for shall cease to
be payable to the person who is the registered owner thereof at
the close of business on the Regular Record Date and shall be
payable to the person who is the registered owner thereof at the
close of business on a Special Record Date for the payment of
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any such defaulted interest. Such Special Record Date shall be
fixed by the Trustee whenever moneys become available for
payment of the defaulted interest, and notice of the Special
Record Date shall be given to the registered owners of the
Certificates not less than ten days prior thereto by first -class
mail to each such registered owner as shown on the registration
books on a date selected by the Trustee stating the date of the
Special Record Date and the date fixed for the payment of such
defaulted interest. The Trustee may make payments of interest
on any Certificate by such alternative means as may be mutually
agreed to between the registered owner of such Certificate and
the Trustee. All such payments shall be made in lawful money of
the United States of America without deduction for the services
of the Trustee.
Section 2.03. Limited Obligation Each Certificate shall
evidence the assignment of a proportionate undivided interest in
the right to receive Revenues under the Lease. The Certificates
are payable solely from Revenues as, when and if the same are
received by the Trustee. The Revenues are to be held in trust
by the Trustee for such purposes in the manner and to the extent
provided herein.
NEITHER THE LEASE NOR THE CERTIFICATES CONSTITUTES A
GENERAL OBLIGATION OR OTHER INDEBTEDNESS OF THE CITY WITHIN THE
MEANING OF ANY CONSTITUTIONAL, STATUTORY OR CHARTER DEBT
LIMITATION. NEITHER THE LEASE, THE INDENTURE NOR THE
CERTIFICATES HAVE DIRECTLY OR INDIRECTLY OBLIGATED THE CITY TO
MAKE ANY PAYMENTS BEYOND THOSE APPROPRIATED FOR ANY FISCAL YEAR
IN WHICH THE LEASE SHALL BE IN EFFECT. EXCEPT TO THE EXTENT
PAYABLE FROM THE PROCEEDS OF THE SALE OF THE CERTIFICATES AND
INCOME FROM THE INVESTMENT THEREOF, FROM NET PROCEEDS OF
CONDEMNATION AWARDS, FROM NET PROCEEDS OF SUBLEASING THE SITE
AND LEASING THE PROJECT OR FROM OTHER AMOUNTS MADE AVAILABLE
UNDER THE INDENTURE, THE CERTIFICATES WILL BE PAYABLE DURING THE
LEASE TERM SOLELY FROM BASE RENTALS TO BE PAID BY THE CITY UNDER
THE LEASE AND THE INCOME FROM CERTAIN INVESTMENTS THEREUNDER.
ALL PAYMENT OBLIGATIONS OF THE CITY UNDER THE LEASE, INCLUDING,
WITHOUT LIMITATION, THE OBLIGATION OF THE CITY TO PAY BASE
RENTALS, ARE FROM YEAR TO YEAR ONLY AND DO NOT CONSTITUTE A
MANDATORY PAYMENT OBLIGATION OF THE CITY IN ANY FISCAL YEAR
BEYOND A FISCAL YEAR IN WHICH THE LEASE SHALL BE IN EFFECT. THE
LEASE IS SUBJECT TO ANNUAL RENEWAL AT THE OPTION OF THE CITY AND
WILL BE TERMINATED UPON THE OCCURRENCE OF A TERMINATION EVENT.
IN SUCH EVENT, ALL PAYMENTS FROM THE CITY UNDER THE LEASE WILL
BE PAYABLE FROM CERTAIN MONEYS, IF ANY, HELD BY THE TRUSTEE
UNDER THE INDENTURE AND ANY MONEYS MADE AVAILABLE BY ACTION OF
THE TRUSTEE REGARDING THE SITE AND THE PROJECT.
Section 2.04. Execution of the Certificates Each
Certificate shall be authenticated by the manual or facsimile
signature of the President of the City Council of the City,
shall be attested with the manual or facsimile signature of the
City Clerk of the City and shall bear the original or facsimile
of the seal of the City. In addition, each Certificate shall be
executed by the manual signature of any duly authorized
representative of the Trustee. In case any official of the
Trustee or of the City whose signature shall appear on the
Certificates shall cease to be such official before delivery of
the Certificates, such signature shall nevertheless be valid and
sufficient for all purposes, the same as if he or she had
remained in office until delivery.
Section 2.05. Authentication No Certificate shall be
valid or obligatory for any purpose or entitled to any security
or benefit hereunder unless and until executed and authenticated
in the manner prescribed by Section 2.04 of this Indenture, and
such execution and authentication of any Certificate shall be
conclusive evidence that such Certificate has been properly
issued and delivered hereunder.
Section 2.06. Form of Certificates The Certificates
shall be substantially in the form set forth in Exhibit A to
this Indenture, with such appropriate variations, omissions and
insertions as permitted or required hereby.
Section 2.07. Delivery of the Certificates Upon the
execution and delivery of this Indenture, the Trustee shall
authenticate and deliver the Certificates in the aggregate
principal amount of $565,000 to the Seller, as hereinafter in
this Section 2.07 provided.
(a) Prior to the delivery by the Trustee of any of
the Certificates, there shall be filed with the Trustee (i)
originally executed counterparts of the Lease and this
Indenture, (ii) a certified copy of the Ordinance adopted
by the City Council approving the Lease and the issuance of
the Certificates pursuant to the Indenture; (iii) a
certified copy of a Resolution adopted by the Board of
Directors of the Lessor approving the Lease, the Indenture
and the issuance of the Certificates; and (iv) commitments
for the issuance of the title insurance policies as
required by the Lease.
(b) The Trustee shall have received evidence
satis actory to the Trustee establishing that the Lessor
has title to the Site as required by the Agreement.
(c) Thereupon, the Trustee shall deliver the
Certificates to the Seller.
Section 2.08. Mutilated, Lost, Stolen or Destroyed
Certificates In the event that any Certificate is mutilated,
lost, stolen or destroyed, a new Certificate may be
authenticated on behalf of the Trustee, of like date, maturity
and denomination as that mutilated, lost, stolen or destroyed;
provided that the Trustee shall have received indemnity from the
registered owner of the Certificate satisfactory to it and
provided further, in case of any mutilated Certificate, that
ME
such mutilated Certificate shall first be surrendered to the
Trustee, and in the case of any lost, stolen or destroyed
Certificate, that there shall be first furnished to the Trustee
evidence of such loss, theft or destruction satisfactory to the
Trustee. In the event that any such Certificate shall have
matured or is about to mature, instead of issuing a duplicate
Certificate, the Trustee may pay the same without surrender
thereof. The Trustee may charge the registered owner of the
Certificate with its reasonable fees and expenses in this
connection.
Section 2.09. Registration of Certificat
ted as Registered nwnPrG! Trancfcr =.A i
c:ertiti.cates Books for the registration and for the transfer
of Certificates shall be kept by the Trustee which is hereby
appointed the registrar. Upon surrender for transfer of a
Certificate at the principal corporate trust office of the
Trustee, duly endorsed for transfer or accompanied by an
assignment duly executed by the registered owner or the attorney
of such registered owner duly authorized in writing, the Trustee
shall execute and deliver in the name of the transferee or
transferees a new fully registered Certificate or Certificates
for a like aggregate principal amount and of a like maturity,
series and interest rate.
Certificates may be exchanged at the principal corporate
trust office of the Trustee for a like aggregate principal
amount of Certificates of the same date, maturity, series and
interest rate, or for a like aggregate principal amount of
Certificates of other authorized denominations of the same date,
maturity, series and interest rate. The City shall authenticate
and the Trustee shall execute and deliver Certificates which the
registered owner thereof making the exchange is entitled to
receive, bearing numbers not then Outstanding.
The Trustee shall not be required to transfer or exchange
the Certificates during the period of 15 days next preceding any
interest payment date of such Certificate nor to transfer or
exchange any Certificate after the publication or the mailing of
notice calling such Certificate for redemption has been given as
herein provided, nor during the period of 15 days next preceding
the giving of such notice of redemption.
As to any Certificate, the person in whose name the same
shall be registered on a Regular Record Date or Special Record
Date shall be deemed and regarded as the absolute owner thereof
for all purposes, and payment of either principal or interest on
the Certificate shall be made only to or upon the written order
of the registered owner thereof or the legal representative of
such registered owner, but such registration may be changed as
hereinabove provided. All such payments shall be valid and
effectual to satisfy and discharge such Certificate to the
extent of the sum or sums paid.
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The Trustee shall require the payment, by any Participant
requesting transfer or exchange of Certificates, of any tax,
trustee's fee, fee or other governmental charge required to be
paid with respect to such transfer.
Section 2.10. Cancellation of Certificates Whenever any
outstanding Certificates shall be delivered to the Trustee for
cancellation pursuant to this Indenture, upon payment thereof or
for or after replacement pursuant to Section 2.08 and 2.09 of
this Indenture, such Certificates shall be promptly canceled and
destroyed by the Trustee, and counterparts of a certificate of
destruction evidencing such destruction shall be furnished by
the Trustee to the City.
ARTICLE III
REVENUES AND FUNDS
Section 3.01. Source of Payment of Certificates The
Certificates shall be payable solely from Revenues received by
the Trustee and do not constitute a general obligation or other
indebtedness of the City within the meaning of any
constitutional, statutory or Charter debt limitation. Revenues,
when, as and if received by the Trustee, shall be held hereunder
for payment of the principal of, premium, if any, and interest
on the Certificates as provided in this Indenture.
Section 3.02. Creation of the Certificate Fund A special
fund is hereby created and established with the Trustee, to be
designated "City of Pueblo, Colorado, Public Works Lease
Purchase Agreement, Certificate of Participation Fund" (the
"Certificate Fund "), which shall be used to pay the principal
of, premium, if any, and interest on the Certificates. Within
the Certificate Fund there are hereby created and ordered
established an Interest Account and a Principal Account which
shall be used as set forth in Section 3.05 of this Indenture.
Section 3.03. Payments Into the Interest Account of the
Certificate Fund There shall be deposited into the Interest
Account of the Certificate Fund (a) all accrued interest and
capitalized interest received at the time of the issuance, sale
and delivery of the Certificates; (b) that portion of each
payment of Base Rentals made by the City which is designated and
paid as interest under Exhibit B °to the Lease; and (c) all other
moneys received by the Trustee under this. Indenture to be used
for the purpose of paying interest on the Certificates.
Section 3.04. Payments Into the Principal Account of the
Certificate Fund There shall be deposited into the Principal
Account of the Certificate Fund (a) that portion of each payment
of Base Rentals made by the City which is designated and paid as
principal under Exhibit B to the Lease; and (b) all other moneys
received by the Trustee under this Indenture to be used for the
purpose of paying the principal of the Certificates.
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Section 3. 05. Use of Moneys in the Certificate Fund
Moneys in the Interest Account of the Certificate Fund shall be
used solely for the payment of the interest on the Certificates
except to the extent that moneys therein may be deposited in the
Rebate Fund. Moneys in the Principal Account of the Certificate
Fund shall be used solely for the payment of the principal of
the Certificates except to the extent that moneys therein, may
be deposited in the Rebate Fund. In the event the Certificates
are to be redeemed in whole, any moneys remaining in the
Certificate Fund shall be applied to such redemption along with
other moneys held by the Trustee for such purpose.
Amounts deposited into the Certificate Fund shall be
depleted at lease once a year except for an amount not to exceed
the greater of one year's earnings on the Certificate Fund or
1 /12th of the annual debt service on the Certificates.
Section 3.06. Custody of the Funds All Funds created
under this Indenture shall be in the custody of the Trustee,
subject to the provisions of this Indenture.
Section 3.07. Creation of the Extraordinary Redemption
Fund There is hereby created and established with the Trustee
the "City of Pueblo, Colorado, Public Works Lease Purchase
Agreement, Extraordinary Redemption Fund" (the "Extraordinary
Redemption Fund ") into which shall be deposited all
Extraordinary Revenues which are to be applied for the
redemption of the Certificates on the first Business Day for
which notice of redemption may be given. Moneys on deposit in
the Extraordinary Redemption Fund shall be disbursed for
redemption of the Certificates as provided in Section 4.01 of
this Indenture. Any income from investment of moneys in the
Extraordinary Redemption Fund shall be deposited into the
Certificate Fund.
Section 3.08. Creation of the Expenses Fund There is
hereby created and established with the Trustee the "City of
Pueblo, Colorado, Public Works Lease Purchase Agreement,
Expenses Fund" (the "Expenses Fund ").
Any moneys held in the Expenses Fund shall be invested and
reinvested by the Trustee in accordance with Article V of this
Indenture. Income derived from the investment of the Expense
Fund shall be deposited in the Certificate Fund.
Moneys held in the Expense Fund shall be used to reimburse
the Trustee and the Lessor, respectively, for costs, expenses,
outlays, counsel fees and other reasonable disbursements
incurred by the Trustee or Lessor by reason of any litigation
pertaining to the Project in which the Trustee or the Lessor is
named as a defendant; and fro any such costs, expenses, outlays,
counsel fees and other reasonable disbursements incurred by the
Trustee by reason of a Termination Event.
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Section 3. 09. Nonpresentment of Certificates In the
event any Certificate shall not be presented for payment when
due, if funds sufficient to pay such Certificate shall have been
made available to the Trustee for the benefit of the registered
owner thereof, it shall be the duty of the Trustee to hold such
funds for a period of six years, without liability for interest
thereon, for the benefit of the registered owner of such
Certificate, who shall be restricted exclusively to such funds
for any claim of whatever nature on his or her part under the
Lease or this Indenture or on or with respect to such
Certificate. Any unclaimed funds remaining after the expiration
of the six year period shall be returned by the Trustee to the
City.
Section 3.10. Reports to Citv Not less than once during
each calendar year, the Trustee shall provide the City with an
accounting for all receipts to and disbursements from the funds
or accounts created hereunder.
Section 3.11. Repayment to the City from the Trustee
Upon a discharge and a defeasance of the Indenture pursuant to
Article VI of this Indenture, any amounts remaining in the
Certificate Fund, the Extraordinary Redemption Fund, the
Expenses Fund or otherwise held by the Trustee pursuant thereto,
except the Rebate Fund, shall be paid to the City as a return of
an overpayment of Base Rentals.
Section 3.12. Rebate Fund There is hereby created and
established with the Trustee a separate trust fund in the name
of the City to be designated "City of Pueblo, Colorado, Public
Works Lease Purchase Agreement, Rebate Fund" (the "Rebate
Fund "), which shall be expended in accordance with the
provisions hereof and the Investment Instructions delivered by
the City to the Trustee (the "Investment Instructions"), and
there is further established in said fund a Rebate Principal
Account and a Rebate Income Account. The Trustee shall make
deposits and disbursements from the Rebate Fund in accordance
with the Investment Instructions, shall invest the Rebate Fund
pursuant to said Investment Instructions and shall deposit
income from such investments immediately upon receipt thereof in
the Rebate Income Account, all as directed by the City in the
Investment Instructions. The City shall employ, at its expense,
a qualified firm of certified public accountants, which firm
shall make calculations, deposits,.disbursements and investments
as may be required by the immediately preceding sentence. The
City shall attach the report of such firm to any directions
given by the City to the Trustee. The Investment Instructions
may be superseded or amended by new Investment Instructions
accompanied by an opinion of nationally recognized municipal
bond counsel addressed to the City to the effect that the use of
said new Investment Instructions will not cause the interest
paid or to be paid on the Certificates to become subject to
federal income taxation.
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Section 3.13. Rebate Deposits The Trustee shall annually
make the Rebate Deposit described in the Investment Instructions
as directed by the City. The City shall attach the report of
the firm of certified public accountants required by Section
3.12 above to any such directions. If a withdrawal from the
Rebate Principal Account is permitted as a result of such
computation, the amount withdrawn shall be deposited in the
Certificate Fund for the benefit of the City. Records of the
determinations required by this Section and the Investment
Instructions must be retained by the Trustee until six (6) years
after the final retirement of the Certificates.
Section 3.14. Rebate Disbursements Not later than thirty
(30) days after the end of the fifth Certificate Year (thirty
(30) days after February 1, 1995) and every five (5) years
thereafter, the Trustee shall pay to the United States of
America (but only from funds provided by the City) ninety
percent (90 %) of the amount required to be on deposit in the
Rebate Principal Account as of such payment date and one hundred
percent (100 %) of the amount on deposit in the Rebate Income
Account as of such payment date. Not later than thirty (30)
days after the final retirement of the Certificates (whether at
maturity or upon redemption or acceleration or otherwise), the
Trustee shall pay to the United State of America (but only from
funds provided by the City) one hundred percent (100 %) of the
balance remaining in the Rebate Principal Account and the Rebate
Income Account. Each payment required to be paid to the United
States of America pursuant to this Section shall be filed with
the Internal Revenue Service Center, Philadelphia, Pennsylvania
19255. Each payment shall be accompanied by a copy of the
information report originally filed with respect to the
Certificates and a statement summarizing the determination of
the amount to be paid to the Untied States of America.
ARTICLE IV
REDEMPTION OF CERTIFICATES
Section 4.01. Redemption Dates and Prices The
Certificates are subject to redemption as set forth below:
(a) The Certificates shall be called for redemption
on any Interest Payment Date in the event of, and to the
extent that moneys are actually received by the Trustee
from, the exercise by the City of its option to purchase
the Project, as provided in the Lease, upon payment of the
then applicable Purchase Option Price.
(b) The Certificates shall be callable for redemption
in whole or in part prior to maturity, at the option of the
City, on any Interest Payment Date.
(c) The Certificates shall be called for redemption
in the event and to the extent that Extraordinary Revenues
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are deposited into the Extraordinary Redemption Fund, other
than as provided in paragraph (a) , (b) or (d) or this
Section.
(d) The Certificates may also be called for
redemption as set forth in Section 4.02 of this Indenture.
In the event the Certificates are redeemed pursuant to (a)
above, the Certificates shall be redeemed in whole, at par, plus
accrued interest to the redemption date.
In the event that the Certificates are redeemed pursuant to
(b) and (c) above, the Certificates shall be redeemed in whole,
or in part in inverse order of maturity and by lot within any
maturity, at par plus accrued interest to the redemption date,
on the first Business Day for which notice of redemption may be
given. When Certificates are to be redeemed in part, the
schedule of Base Rentals set forth in Exhibit B to the Lease
shall be recalculated by the Trustee.
Section 4.02.
Term oy Reason of Certain Events The Certificates are callable
for redemption upon the occurrence of a Termination Event. If
the Certificates are to be redeemed subsequent to a Termination
Event as described in the preceding sentence, the Participants
shall have no right to payment from the City, the Lessor or the
Trustee, in redemption of their Certificates or otherwise,
except as expressly set forth in this Section 4.02.
Upon the occurrence of a Termination Event the Certificates
shall be payable from such moneys as may be obtained by the
Trustee through the exercise of its rights under this Indenture.
Upon the occurrence of a Termination Event, the Trustee may
commence proceedings for subleasing the Site and leasing the
Project, or the sale or assignment of the Trustee's interest in
the Project as provided in Sections 7.02 and 7.05 of this
Indenture, and may call the Certificates for redemption from and
only to the extent of the New Proceeds of such leasing, sale or
assignment of the Project and all other moneys, if any, then on
hand and being held by the Trustee for the Participants at 100%
of the principal amount thereof plus accrued interest to the
redemption date.
In the event that such Net Proceeds of foreclosure and sale
and other moneys shall be insufficient to redeem the
Certificates at 100% of the principal, amount thereof plus
accrued interest to the redemption date, then such Net Proceeds
of such leasing, sale or assignment of the Project and other
moneys shall be allocated proportionately among the
Certificates, according to the principal amount thereof
outstanding. In the event that such Net Proceeds of such
leasing, sale or assignment of the Project and other moneys are
in excess of the amount required to redeem the Certificates then
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outstanding at 100% of the principal amount thereof plus accrued
interest to the redemption date, after the Certificates have
been redeemed, such excess moneys shall be paid to the City.
Prior to any distribution of the Net Proceeds of such leasing,
sale or assignment of the Project in redemption of the
Certificates pursuant to this Section, the Trustee shall be
entitled to payment of its customary fees for all services
rendered in connection with such leasing, sale or assignment, as
well as reimbursement for all costs and expenses incurred
thereby, from proceeds of such leasing, sale or assignment. If
the Certificates are to be redeemed subsequent to a Termination
Event from such Net Proceeds of such leasing, sale or assignment
of the Project for an amount less than the aggregate principal
amount thereof plus accrued interest to the redemption date, no
Registered Owner of any Certificate shall have any further claim
for payment against the City, the Lessor or the Trustee.
Section 4.03. Notice of Redemption Notice of the call
for any redemption, identifying the Certificates or portions
thereof to be redeemed and specifying the terms of such
redemption, shall be given by the Trustee, upon being
satisfactorily indemnified as to expenses, by mailing a copy of
the redemption notice by registered or certified mail at least
30 days and not more than 60 days prior to the date fixed for
redemption to the registered owner of each Certificate to be
redeemed at the address shown on the registration books;
provided, however, that failure to give such notice by mailing,
or any defect therein, shall not affect the validity of any
proceedings for the redemption of Certificates as to which no
such failure has occurred.
Any notice mailed as provided in this Section shall be
conclusively presumed to have been duly given, whether or not
the registered owner receives the notice.
If at the time of mailing of notice of redemption there
shall not have been deposited with the Trustee moneys sufficient
to redeem all the Certificates called for redemption, which
moneys are or will be available for redemption of Certificates,
such notice will state that it is conditional upon the deposit
of the redemption moneys with the Trustee not later than the
opening of business on the redemption date, and such notice
shall be of no effect unless such moneys are so deposited.
Section 4.04. Redemption Payments Prior to the date
fixed for redemption, funds shall be deposited with the Trustee
to pay, and the Trustee is hereby authorized and directed to
apply such funds to the payment of, the Certificates called,
together with accrued interest thereon to the redemption date,
and any required premium. Upon the giving of notice and the
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IF
deposit of such funds as may be available for redemption
pursuant to this Indenture (which, in the case of redemption
pursuant to Section 4.02 above, may be less than the full
principal amount of the outstanding Certificates and accrued
interest thereon to the redemption date), interest on the
Certificates or portions thereof thus called shall no longer
accrue after the date fixed for redemption.
The Trustee shall pay to the registered owners of
Certificates so redeemed, the amounts due on their respective
Certificates, at the principal corporate trust office of the
Trustee upon presentation and surrender of the Certificates;
provided, however, that, if redeemed in part, the Certificates
may be redeemed only in multiples of $1,000. Redemption
payments shall be accompanied by a written designation prepared
by the Trustee stating the portion of the payment presenting the
unpaid principal amount of the Certificate immediately prior to
the payment, the portion of the payment representing interest,
and the remaining portion, if any, which shall be designated and
paid as a redemption premium.
Section 4.05. Cancellation All Certificates which have
been redeemed shall not be reissued but shall be canceled and
cremated or otherwise destroyed by the Trustee in accordance
with Section 2.10 hereof. _
Section 4.06. Delivery of New Certificates Upon Partial
Redemption of Certificates Upon surrender and cancellation of
the Certificates for redemption in part only, a new Certificate
or Certificates of the same maturity and of authorized
denomination in an aggregate principal amount equal to the
unredeemed portion thereof, shall be executed on behalf of and
delivered by the, Trustee. The expenses of such execution,
delivery and exchange shall be paid by the City as Additional
Rentals under the Lease.
ARTICLE V
INVESTMENTS
Section 5.01. _Investment of Moneys All moneys held as
part of the Certificate Fund, the Extraordinary Redemption Fund,
the Expenses Fund or any other fund or account created hereunder
or under the Lease shall be deposited or invested and reinvested
by the Trustee, at the direction of the City, in Permitted
Investments; provided, however, that the,Trustee shall make no
deposits or investments of any fund or account created hereunder
which shall interfere with or prevent withdrawals for the
payment of the Certificates at or before maturity or interest
thereon as required hereunder. All investments and
reinvestments of any amounts pursuant to this Indenture or the
Lease shall be made in compliance with the requirements of the
closing documents executed by the City in connection with the
issuance of the Certificates, unless the Trustee shall receive
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an opinion of nationally recognized municipal bond counsel
acceptable to the City and the Trustee to the effect that an
alternate investment or reinvestment shall not adversely affect
the exclusion from gross income or alternative minimum taxable
income, for purposes of federal income taxation, of interest on
the Certificates, in which case such investment or reinvestment
shall be made in accordance with such opinion. Any and all such
deposits or investments shall be held by or under the control of
the Trustee.
The Trustee may make any and all such deposits or
investments through its own investment department or the
investment department of any bank or trust company under common
control with the Trustee. The Trustee is specifically
authorized to enter into agreements with itself or any other
person, which agreements guarantee the repurchase of specific
Permitted Investments at specific prices and provided that such
Permitted Investments are held by a third party during the term
thereof. Income from deposits or investments of moneys in the
Expenses Fund and the Extraordinary Redemption Fund shall be
deposited into the Certificate Fund as provided in Sections 3.7
and 3.8 of this Indenture; otherwise, deposits or investments
shall at all times be a part of the fund or account from which
the moneys used to acquire such deposits or investments shall
have come, and all income and profits on such deposits or
investments shall be credited to, and losses thereon shall be
charged against, such fund or account. In computing the amount
in any fund or account held under the provisions of this
Indenture, obligations purchased as a deposit or investment of
moneys therein shall be valued at the cost or market price
thereof, whichever is lower, exclusive of accrued interest.
With respect to all funds and accounts, valuation shall occur
annually. The Trustee shall sell and reduce to cash a
sufficient amount of such deposits or investments whenever the
cash balance in any fund or account created hereunder is
insufficient to satisfy the purposes of such fund or account.
Section 5.02. Arbitrage Certification In reliance on the
direction of investments by the City as provided in Section 5.01
of this Indenture, and in reliance on the covenants of the City
in Section 11.7 of the Lease, the Trustee certifies and
covenants to and for the benefit of the Participants that so
long as any of the Certificates remain outstanding, moneys in
any fund or account held by the Trustee under this Indenture,
whether or nor such moneys were derived from the proceeds of the
sale of the Certificates or from any other source, will not be
knowingly deposited or invested in a manner which will cause the
Certificates to be classified as "arbitrage bonds" within the
meaning of Section 148 of the Code.
ME
ARTICLE VI
DISCHARGE OF INDENTURE
Section 6.01. Discharcre of Indenture If, when the
Certificates secured hereby shall become due and payable in
accordance with their terms or otherwise as provided in this
Indenture, the whole amount of the principal or, premium, if
any, and interest due and payable upon all of the Certificates
shall be paid (or, in the case of redemption of the Certificates
pursuant to Section 4.01(d) of this Indenture, if full or
partial payment of the Certificates and interest thereon is made
as provided in Section 4.02 of this Indenture), or provision
shall have been made for the payment of the same, together with
all other sums payable hereunder, then the right, title and
interest of the Trustee in and to the Trust Estate and all
covenants, agreements and other obligations of the Lessor and
the City to the Trustee and the Participants shall thereupon
cease, terminate and become void and be discharged and
satisfied. In such event, upon the request of the City, the
Trustee and the Lessor shall transfer and convey to the City all
property assigned, pledged or mortgaged to the Trustee by the
Lessor then held by the Lessor or by the Trustee pursuant to
this Indenture, and the Lessor and the Trustee shall execute
such documents as may be reasonably required by the City and
shall turn over to the City any surplus in any fund created
under this Indenture except the Rebate Fund.
All outstanding Certificates shall, prior to the maturity
or redemption date thereof, be deemed to have been paid within
the meaning and with the effect expressed in this Article VI if
(a) in case said Certificates are to be redeemed on any date
prior to their maturity, the City shall have given to the
Trustee in form satisfactory to the Trustee irrevocable
instructions to give, on a date in accordance with the
provisions of Section 4.03 hereof, notice of redemption of such
Certificates on said redemption date, such notice to be given in
accordance with the provisions of Section 4.03 hereof, (b) there
shall have been deposited with the Trustee either moneys in an
amount which shall be sufficient, or Federal Securities which
shall not contain provisions permitting the redemption thereof
at the option of the issuer thereof, the principal of and the
interest on which when due, and without any reinvestment
thereof, will provide moneys which, together with the moneys, if
any, deposited with or held by the Trustee at the same time,
shall be sufficient to pay when due the principal of, premium,
if any, and interest due and to become due on said Certificates
on and prior to the redemption date or maturity date thereof, as
the case may be, and (c) in the event said Certificates are not
by their terms subject to redemption within the next 60 days,
the City shall have given the Trustee in form satisfactory to it
irrevocable instructions to give, as soon as practicable in the
same manner as the notice of redemption is given pursuant to
Section 4.03 hereof, a notice to the registered owners of such
Certificates that the deposit required by (b) above has been
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made with the Trustee and that said Certificates are deemed to
have been paid in accordance with this Section and stating such
maturity or redemption date upon which moneys are to be
available for the payment of the principal of, premium, if any,
and interest on said Certificates. Neither the Federal
Securities nor moneys deposited with the Trustee pursuant to
this Section 6.01 or principal or interest payments on any such
Federal Securities shall be withdrawn or used for any purpose
other than, and shall be held in trust for, the payment of the
principal of, premium, if any, and interest on said
Certificates; provided any cash received from such principal or
interest payments on such Federal Securities deposited with the
Trustee, if not then needed for such purpose, shall, to the
extent practicable, be reinvested in Federal Securities of the
type described in clause (b) of this paragraph maturing at the
times and in amounts sufficient to pay when due the principal
of, premium, if any, and interest to become due on said
Certificates on or prior to such redemption date or maturity
date thereof, as the case may be. At such time as any
Certificates shall be deemed paid as aforesaid, such
Certificates shall no longer be secured by or entitled to the
benefits of this Indenture and the Lease, except for the purpose
of exchange and transfer and any payment from such moneys or
Federal Securities deposited with the Trustee.
Prior to any discharge
effective, the amounts required
this Indenture and defease the
only in Federal Securities.
of this Indenture becoming
to be deposited to discharge
Certificates shall be invested
The release of the obligations of the Lessor under this
Section shall be without prejudice to the rights of the Trustee
to be paid reasonable compensation for all services rendered by
it hereunder and all its reasonable expenses, charges and other
disbursements incurred with respect to the administration of the
trust hereby created and the performance of its powers and
duties hereunder.
ARTICLE VII
DEFAULTS AND REMEDIES
Section 7.01. Events of Default If any of the following
events occur it is hereby defined as and shall be deemed an
"Event of Default" under this Indenture:
(a) default by the City in the payment of Base
Rentals or Additional Rentals;
(b) The occurrence of a Termination Event; or
(c) The occurrence of an Event of Default as provided
in Section 14.1 of the Lease.
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Section 7.02. Remedies on Default Upon the occurrence of
an Event of Default described in Section 7.01(b) of this
Indenture, the Trustee shall terminate the Lease Term, shall
become entitled to possession of the Project, and shall give
notice to the City to vacate the Project as provided in Section
6.6 and 14.2 of the Lease, as the case may be; and the Trustee
may, or as provided in Section 7.03 of this Indenture, shall,
without any further demand or notice, take one or any
combination of the following additional remedial steps:
(a) The Trustee may lease the Project or any portion
thereof, all for the benefit of the Participants; provided
that, notwithstanding anything contained herein. Any such
lease shall be conditioned, however, on an agreement by the
lessee to use the Site in a manner compatible with other
uses in the area immediately surrounding the Site.
(b) The Trustee, on behalf of the Lessor, may recover
from the City:
(i) the portion of Base Rentals and Additional
Rentals which would otherwise have been payable under
the Lease allocable to any period in which the City
continues to occupy the Project; and
(ii) Base Rentals and Additional Rentals which
would otherwise have been payable by the City under
the Lease during the remainder, after the City vacates
the Project, of the Original or Renewal Term in which
such Event of Default occurs; provided, however, that
if the Trustee does not proceed to foreclose and sell
the Project reasonably promptly after such Event of
Default, the Trustee shall be obligated to the City to
use its best efforts to lease the Project for the
remainder of such Original or Renewal Term, as
provided in paragraph (a) of this Section 7.02, and
the Net Proceeds of such leasing shall be offset
against the amount recoverable from the City under
this paragraph (ii).
(c) The Trustee may take whatever action at law or in
equity may appear necessary or desirable to enforce its
rights in and to the Project under the Lease and this
Indenture.
No right or remedy is intended to be.exclusive of any other
rights or remedies, but each and every such right or remedy
shall be cumulative and in addition to any other remedy given
hereunder or now or hereafter existing at law or in equity or by
statute. However, notwithstanding any other provision of the
Lease or this Indenture, any and all remedies against the City
under the Lease or this Indenture shall be limited as provided
in Section 14.3 of the Lease.
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Section 7.03. Maioritv of Participants May Control
Proceedings The registered owners of a majority in aggregate
principal amount of the Certificates then Outstanding, shall
have the right, at any time, to the extent permitted by law, by
an instrument or instruments in writing executed and delivered
to the Trustee, to direct the time, method and place of
conducting all proceedings to be taken in connection with the
enforcement of the terms and conditions of this Indenture, or
for the appointment of a receiver, and any other proceedings
hereunder; provided that such direction shall not be otherwise
than in accordance with the provisions hereof. The Trustee
shall not be required to act on any direction given to it
pursuant to this Section until the indemnity described in
Section 8.01(m) of this Indenture is furnished to it by such
Participants.
Section 7.04. Rights and Remedies of Participants No
Participant shall have any right to institute any suit, action
or proceeding in equity or at law for the enforcement of this
Indenture or for the execution of any trust hereof or for the
appointment of a receiver or any other remedy hereunder, unless
(a) a default has occurred of which the Trustee has been
notified as provided in Section 8.01(h) hereof, or of which by
said Section it is deemed to have notice; (b) such default shall
have become an Event of Default as defined in Section 7.01 of
this Indenture; (c) the registered owners of not less than a
majority in aggregate principal amount of Certificates then
outstanding shall have made written request to the Trustee and
shall have offered reasonable opportunity either to proceed to
exercise the powers hereinbefore granted or to institute such
action, suit or proceedings in its own name; (d) such owners of
the Certificates shall have offered to the Trustee indemnity as
provided in Section 8.01(m) hereof; and (e) the Trustee shall
thereafter fail or refuse to exercise the powers hereinbefore
granted, or to institute such action, suit or proceeding in its
own name. The foregoing conditions are hereby declared in every
case to be conditions precedent to the execution of the powers
and trust of this Indenture, and to any action or cause of
action for the enforcement of this Indenture, or for the
appointment of a receiver or for any other remedy hereunder; it
being understood and intended that no one or more Participants
shall have any right in any manner whatsoever to affect, disturb
or prejudice the lien of this Indenture by any action or to
enforce any right hereunder except in the manner herein provided
and that all proceedings at law or in equity shall be
instituted, had and maintained in the manner herein provided and
for the benefit of the registered owners of all Certificates
then outstanding. Nothing contained in this Indenture shall,
however, affect or impair the right of any Participant to
enforce the payment of the principal of, premium, if any, and
interest on any Certificate at and after the maturity thereof.
Section 7.05. Purchase of Project by Participants or
Trustee; Application of Certificates Toward Purchase Price
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Upon the occurrence of an Event of Default under this Indenture,
the lien on the Project created and vested in the Trustee
hereunder may be foreclosed either by sale at public auction or
by proceedings in equity. Upon any such sale, any Participant
or the Trustee may bid for and purchase the Project and, upon
compliance with the terms of sale, may hold, retain and possess
and dispose of such property in their own absolute right without
further accountability; and any purchaser at any such sale may,
if permitted by law, after allowing for the proportion of the
total purchase price required to be paid in cash for the costs
and expenses of the sale, compensation and other charges, in
paying purchase money, turn in all Certificates then outstanding
in lieu of cash, to the amount which shall, upon distribution of
the Net Proceeds of such sale, be payable thereon. If the
Trustee shall acquire title to the Project as a result of any
such foreclosure sale, or any proceeding or transaction in lieu
of foreclosure, the Trustee shall thereafter sell the Project
(except as provided in paragraph (a) of Section 7.02 of this
Indenture); and may take any further lawful action with respect
to the Project which it, being advised by counsel, shall deem to
be in the best interest of the Participants, including but not
limited to the enforcement of all rights and remedies set forth
in the Lease and this Indenture and the taking of all other
courses of action permitted therein or herein.
Section 7.06. Waiver of Appraisement, Valuation Stay and
Extension The Lessor agrees, to the extent permitted by law,
that in case of the occurrence of an Event of Default, neither
the Lessor nor anyone claiming through or under the Lessor shall
or will set up, claim or seek to take advantage of any
appraisement, valuation, stay or extension laws now or hereafter
in force in order to prevent or hinder the enforcement or
foreclosure of this Indenture, or the absolute sale of the Trust
Estate, or the final and absolute putting into possession
thereof, immediately after such sale, of the purchasers thereat;
and the Lessor, for itself and all who may at any time claim
through or under the Lessor, hereby waives, to the full extent
that it may lawfully do so, the benefit of all such laws, and
any and all right to have the estates comprised in the security
intended to be hereby created and marshalled upon any
foreclosure of the lien hereof and agrees that the Trustee or
any court having jurisdiction to foreclose such lien may sell
the Project as an entirety; provided, however, that Lessor, for
itself and all who may at any time claim through or under the
Lessor, shall retain all rights of redemption.
Section 7.07. Trustee May Enforce Rights Without
Certificates All rights of action and claims under this
Indenture or any of the Certificates outstanding hereunder may
be enforced by the Trustee without the possession of any of the
Certificates or the production thereof in any trial or
proceedings relative thereto; and any suit or proceeding
instituted by the Trustee shall be brought in its name as the
Trustee, without the necessity of joining as plaintiffs or
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defendants any registered owners of the Certificates, and any
recovery of judgment shall be for the ratable benefit of the
registered owners of the Certificates, subject to the provisions
of this Indenture.
Section 7.08. Delay or Omission No Waiver No delay or
omission of the Trustee or of any Participant to exercise any
right or power accruing upon any default shall exhaust or impair
any such right or power or shall be construed to be a waiver of
any such default, or acquiescence therein; and every power and
remedy given by this Indenture may be exercised from time to
time and as often as may be deemed expedient.
Section 7.09. No Waiver of One Default to Affect Another.
No waiver of any default hereunder, whether by the Trustee or
the Participants, shall extend to or affect any subsequent or
any other then existing default or shall impair any rights or
remedies consequent thereon.
Section 7.10. Discontinuance of Proceedings on Default-
Position of Parties Restored In case the Trustee or the
Participants shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued
or abandoned for any reason, or shall have been determined
adversely to the Trustee or the Participants, then and in every
such case the Lessor, the City, the Trustee and the Participants
shall be restored to their former positions and rights hereunder
with respect to the Trust Estate, and all rights, remedies and
powers of the Trustee, and the Participants shall continue as if
no such proceedings had been taken.
Section 7.11. Waivers of Events of Default The Trustee
may in its discretion waive any Event of Default hereunder and
its consequences, and notwithstanding anything else to the
contrary contained in this Indenture shall do so upon the
written request of the registered owners of two - thirds in
aggregate principal amount of all the Certificates the
Outstanding; provided, however, that there shall not be waived
without the consent of the registered owners of 100% of the
Certificates then Outstanding as to which the Event of Default
exists (a) any Event of Default in the payment of the principal
of or premium on any outstanding Certificates at the date of
maturity specified therein or (b) any default in the payment
when due of the interest on any such Certificates, unless prior
to such waiver or rescission, all arrears of interest and all
arrears of payments of principal and premium, if any, then due,
as the case may be, and all expenses of the Trustee in
connection with such default shall have been paid or provided
for.
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ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01. Duties
accepts the trusts imposed
to perform said trusts
delegation to the Trustee
Lessor under the Lease),
following express terms
covenants or obligations
against the Trustee:
of the Trustee The Trustee hereby
upon it by this Indenture and agrees
including, without limitation, the
by the Lessor of all duties of the
but only upon and subject to the
and conditions, and any implied
shall be read into this Indenture
(a) The Trustee, prior to the occurrence of an Event
of Default and after the curing of all Events of Default
which may have occurred, undertakes to perform such duties
and only such duties as are specifically set forth in this
Indenture. In case an Event of Default has occurred (which
has not been cured or waived) the Trustee shall exercise
such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in
their exercise as a reasonable and prudent person would
exercise or use under the circumstances in the conduct of
his or her own affairs.
(b The Trustee may execute any of the trusts or
powers Lreof and perform any of its duties by or through
attorneys, agents, receivers or employees but shall be
answerable for the conduct of the same in accordance with
the standard specified above, and shall be entitled to act
upon an Opinion of Counsel concerning all matters of trust
hereof and the duties hereunder, and may in all cases pay
such reasonable compensation to all such attorneys, agents,
receivers and employees as may reasonably be employed in
connection with the trusts hereof. The Trustee may act
upon an Opinion of Counsel and shall not be responsible for
any loss or damage resulting from any action or nonaction
taken by or omitted to be taken in good faith in reliance
upon such Opinion of Counsel.
(c) The Trustee shall not be responsible for any
recital herein or in the Certificates (except in respect to
the execution of the Certificates on behalf of the
Trustee), or for the recording or rerecording, filing or
refiling of the Lease or this Indenture or of any
supplements thereto or hereto or instruments of further
assurance, or collecting any insurance moneys or for the
validity of the execution by the Lessor of this Indenture
or of any supplements hereto or instruments of further
assurance, of for the sufficiency of the security for the
Certificates issued hereunder or intended to be secured
hereby, or for the value of or title to the Project, and
the Trustee shall not be bound to ascertain or inquire as
to the performance or observance of any covenants,
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conditions or agreements on the part of the Lessor or the
City, except as provided herein; but the Trustee may
require of the Lessor or the City full information and
advice as to the performance of the covenants, conditions
and agreements aforesaid. The Trustee shall have no
obligation to perform any of the duties of the City under
the Lease; and the Trustee shall not be responsible or
liable for any loss suffered in connection with any
investment of funds made by it in accordance with Article V
hereof.
(d) The Trustee shall not be accountable for the use
of any Certificates authenticated or delivered hereunder.
The Trustee may become the registered owner of the
Certificates with the same rights which it would have if
not the Trustee.
(e) The Trustee shall be protected in acting upon any
notice, request, consent, certificate, order, affidavit,
letter, telegram or other paper or document believed to be
genuine and correct and to have been signed or sent by the
proper person or persons. Any action taken by the Trustee
pursuant to this Indenture upon the request or authority or
consent of any person who at the time making such request
or giving such authority or consent is the owner of any
Certificate shall be conclusive and binding upon all future
registered owners of the same Certificate and upon any
Certificates issued in place thereof.
(f) As to the existence or nonexistence of any fact
or as to the sufficiency or validity of any instrument,
paper or proceeding, the Trustee shall be entitled to rely
upon a certificate signed on behalf of the City by the City
Representative or such other person as may be designated
for such purpose by a certified resolution, as sufficient
evidence of the facts therein contained, and, prior to the
occurrence of a default of which the Trustee has been
notified as provided in subsection (h) of this Section or
of which by said subsection it is deemed to have notice,
shall also be at liberty to accept a similar certificate to
the effect that any particular dealing, transaction or
action is necessary or expedient, but may as is advisable,
but shall in no case be bound to secure the same.
(g) The permissive right of the Trustee to do things
enumerated in this Indenture shall not be construed as a
duty and the Trustee shall not be answerable for other than
its negligence or willful default.
(h) The Trustee shall not be required to take notice
or be deemed to have notice of any default hereunder except
failure by the City or the Lessor to cause to be made any
of the payments to the Trustee required to be made by
Article III hereof, unless the Trustee shall be
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specifically notified in writing of such default by the
Lessor or the City, or by the registered owners of at least
25% in aggregate principal amount of Certificates then
outstanding, and all notices or other instruments required
by this Indenture to be delivered to the Trustee, must, in
order to be effective, be delivered at the principal
corporate trust office of the Trustee, and in the absence
of such notice so delivered, the Trustee may conclusively
assume there is no default except as aforesaid.
(i) All moneys received by the Trustee shall, until
use or applied or invested as herein provided, be held in
trust in the manner and for the purposes for which they
were received but need not be segregated from other funds
except to the extent required by this Indenture or law.
The Trustee shall not be under any liability for interest
on any moneys received hereunder except such as may be
agreed upon.
(j) At any and all reasonable times the Trustee, and
its duly authorized agents, attorneys, experts, engineers,
accountants and representatives, shall have the right, but
shall not be required, to inspect any and all of the
property pledged herein, including all books, papers and
records of the Lessor or the City pertaining to the
Project.
(k) The Trustee shall not be required to give any
bond or surety in respect of the execution of the said
trusts and powers or otherwise in respect of the premises.
(1) Notwithstanding anything in this Indenture
contained, the Trustee shall have the right, but shall not
be required, to demand in respect of the execution and
delivery of any Certificates, the withdrawal of any cash,
or any action whatsoever within the purview of this
Indenture, any showings, certificates, opinions, appraisals
or other information, or corporate action or evidence
thereof, in addition to that by the terms hereof required,
as a condition of such action by the Trustee deemed
desirable for the purpose of establishing the right of the
Lessor or the City to the execution and delivery of any
Certificates, the withdrawal of any cash, or the taking of
any other action by the Trustee.
(m) Before taking any action hereunder the Trustee
may require that satisfactory indemnity be furnished to it
by the Participants for the reimbursement of all expenses
which it may incur and to protect it against all liability,
except liability which may result from its negligence or
willful default, by reason of any action so taken.
Section 8.02. Fees and Expenses of Trustee The Trustee
shall be entitled to payment and reimbursement for its
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reasonable fees for its services rendered hereunder as and when
the same become due and all expenses reasonably and necessarily
made or incurred by the Trustee in connection with such services
as and when the same become due as provided in Section 6.2 of
the Lease.
Section 8.03. Resignation or Replacement of Trustee The
present or any future Trustee may resign by giving written
notice to the City and to the Lessor not less than 60 days
before such resignation is to take effect. Such resignation
shall take effect only upon the appointment of a successor
qualified as provided in the third paragraph of this Section
8.03. The present or any future Trustee may be removed at any
time by an instrument in writing, executed by the registered
owners of a majority in aggregate principal amount of the
Certificates then Outstanding and delivered to the Trustee.
In case the present or any future Trustee shall at any time
resign or be removed or otherwise become incapable of acting, a
successor may be appointed by the registered owners of a
majority by an instrument or concurrent instruments signed by
such Participants, or their attorneys -in -fact duly appointed;
provided that the City may, by an instrument executed by order
of the City Council, appoint a successor until a new successor
shall be appointed by the Participants as herein authorized.
The City upon making such appointment shall forthwith give
notice thereof to each Participant and to the Lessor, which
notice may be given concurrently with the notice of resignation
given by any resigning Trustee. Any successor so appointed by
the City shall immediately and without further act be superseded
by a successor appointed in the manner above provided by the
registered owners of a majority in aggregate principal amount of
the Certificates Outstanding.
Every successor shall always be a bank or trust company in
good standing, qualified to act hereunder, and having a capital
and surplus of not less than $50,000,000. Any successor
appointed hereunder shall execute, acknowledge and deliver to
the City and to the Lessor an instrument accepting such
appointment hereunder, and thereupon such successor shall,
without any further act, deed or conveyance, become vested with
all the estates, properties, rights, powers and trusts of its
predecessor in the trust hereunder with like effect as if
originally named as Trustee herein; but the Trustee retiring
shall, nevertheless, on the written demand of its successor,
execute and deliver an instrument conveying and transferring to
such successor, upon the trusts herein expressed, all the
estates, properties, rights, powers and trusts of the
predecessor, which shall duly assign, transfer and deliver to
the successor all properties and moneys held by it under this
Indenture. Should any instrument in writing from the City or
the Lessor be required by any successor for more fully certainly
vesting in and confirming to it, the said deeds, conveyances and
instruments in writing shall be made, executed, acknowledged and
delivered by the City or the Lessor on request of such
successor.
The instruments evidencing the resignation or removal of
the Trustee and the appointment of a successor hereunder,
together with all other instruments provided for in this Section
shall be filed and /or recorded by the successor Trustee in each
recording office, if any, where this Indenture shall have been
filed and /or recorded.
Section 8.04. Conversion. Consolidation or Merger of
Trustee Any bank or trust company into which the Trustee or
its successor may be converted or merged, or with which it may
be consolidated, or to which it may sell or transfer its trust
business as a whole shall be the successor of the Trustee under
this Indenture with the same rights, powers, duties and
obligations and subject to the same restrictions, limitations
and liabilities as its predecessor, all without the execution or
filing of any papers or any further act on the part of any of
the parties hereto or thereto, anything herein or therein to the
contrary notwithstanding. In case any of the Certificates to be
issued hereunder shall have been authenticated, but not
delivered, any successor Trustee may adopt the certificate of
any predecessor Trustee, and deliver the same as authenticated;
and, in case any of such Certificates shall not have been
authenticated, any successor Trustee may authenticate such
Certificates in the name of such successor Trustee.
Section 8.05. Intervention by Trustee In any judicial
proceeding to which the Lessor or the City is a party and which
in the opinion of the Trustee and its counsel has a substantial
bearing on the interests of registered owners of the
Certificates, the Trustee may intervene on behalf of registered
owners of the Certificates, and the Trustee shall do so if
requested in writing by the registered owners of at least 25% in
aggregate principal amount in Certificates then Outstanding.
Section 8.06. Escrowed Deed and Bill of Sale The Trustee
agrees to hold the escrowed deed and bill of sale provided for
in Section 12.3 of the Lease, for the benefit of the City, to
cooperate in any required modification, re- execution and
redelivery of the deed and bill of sale, and to date and release
the escrowed deed and bill of sale to the City, all as provided
in said Section 12.3 of the Lease. The Trustee shall not be
responsible for recording the escrowed deed.
ARTICLE IX
SUPPLEMENTAL INDENTURES AND
AMENDMENTS OF THE LEASE
Section 9.01. Supplemental Indentures Not Requiring
Consent of Participants The Trustee and the Lessor may, with
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the written consent of the City, but without the consent of, or
notice to, the Participants, enter into such indentures or
agreements supplemental hereto for any one or more or all of the
following purposes:
(a) To add to the covenants and agreements of Lessor
contained in this Indenture other covenants and agreements
to be thereafter observed by the Lessor;
(b) To cure any ambiguity, or to cure, correct or
supplement any defect or omission or inconsistent provision
contained in this Indenture or to make any provisions with
respect to matters arising under this Indenture or for any
other purpose if such provisions are necessary or desirable
and do not adversely affect the interests of the
Participants; or
(c) To subject to this Indenture additional revenues,
properties or collateral.
Section 9.02. Supplemental Indentures Requiring Consent of
Participants Exclusive of supplemental indentures covered by
Section 9.01 hereof, the written consent of the City and the
consent of the registered owners of not less than two - thirds in
aggregate principal amount of the Certificates then Outstanding
shall be required for the execution by the Lessor and the
Trustee of any indenture or indentures supplemental hereto;
provided, however, that without the consent of the registered
owners of all the Certificates at the time Outstanding nothing
herein contained shall permit, or be construed as permitting:
(a) A change in the terms of redemption or maturity
of the principal amount of or the interest on any
Outstanding Certificate, or a reduction in the principal
amount of or premium payable under any redemption of any
Outstanding Certificate or the rate of interest thereon,
without the consent of the registered owner of such
Certificate;
(b) The deprivation of the registered owner of any
Certificate then Outstanding of the lien created by this
Indenture (other than as originally permitted hereby);
(c) A privilege or priority of any Certificate or
Certificates over any other Certificate or Certificates; or
(d) A reduction in the aggregate principal amount of
the Certificates required for consent to such supplemental
indenture.
If at any time the City or the Lessor shall request the
Trustee to enter into such supplemental indenture for any of the
purposes of this Section, the Trustee shall, upon being
satisfactorily indemnified with respect to expenses, cause
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notice of the proposed execution of such supplemental indenture
to be mailed by registered or certified mail to the registered
owners of the Certificates then Outstanding at the address shown
on the registration books maintained by the Trustee. Such
notice shall briefly set forth the nature of the proposed
supplemental indenture and shall state that copies thereof are
on file at the principal corporate trust office of the Trustee
for inspection by all Participants. If, within 60 days or such
longer period as shall be prescribed by the City following the
giving of such notice, the registered owners of not less than
two - thirds in aggregate principal amount of the Certificates
then outstanding at the time of the execution of any such
supplemental indenture shall have consented to and approved the
execution thereof as herein provided, no Participant shall have
any right to object to any of the terms and provisions contained
therein, or in the operation thereof, or in any manner to
question the propriety of the execution thereof, or to enjoin or
restrain the Trustee or the Lessor from executing the same or
from taking any action pursuant to the provisions thereof.
Section 9.03. Execution of Supplemental Indenture The
Trustee is authorized to join with the Lessor in the execution
of any such supplemental indenture and to make further
agreements and stipulations which may be contained therein, but
the Trustee shall not be obligated to enter into any such
supplemental indenture which affects its rights, duties or
immunities under this Indenture. Any supplemental indenture
executed in accordance with the provisions of this Article shall
thereafter form a part of this Indenture; and all the terms and
conditions contained in any such supplemental indenture as to
any provision authorized to be contained therein shall be deemed
to be part of this Indenture for any and all purposes. In case
of the execution and delivery of any supplemental indenture,
express reference may be made thereto in the text of the
Certificates issued thereafter, if any, if deemed necessary or
desirable by the Trustee.
Section 9.04. Amendments, Etc., of the Lease Not Requiring
Consent of Participants The Lessor and the Trustee may, with
the written consent of the City, but without the consent of the
or notice to the Participants, consent to any amendment, change
or modification of the Lease as may be required (a) by the
provisions of the Lease or this Indenture, (b) for the purpose
of curing any ambiguity or formal defect or omission in the
Lease, or (c) in connection with any other change therein which,
in the judgment of the Trustee, is not to the prejudice of the
Participants.
Section 9.05. Amendments, Etc., of the Lease Requiring
Consent of Participants Except for the amendments, changes or
modifications permitted by Section 9.04 hereof, neither the
Lessor nor the Trustee shall consent to any other amendment,
change or modification of the Lease without the giving of notice
and the written approval or consent of the registered owners of
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not less than two - thirds in aggregate principal amount of the
Certificates at the time Outstanding given and procured as
provided in Section 9.02 hereof. If at any time the City and
the Lessor shall request the consent of the Trustee to any such
proposed amendment, change or modification of the Lease, the
Trustee shall, upon being satisfactorily indemnified with
respect to expenses, cause notice of such proposed amendment,
change or modification to be given in the same manner as
provided in Section 9.02 hereof. Such notice shall briefly set
forth the nature of such proposed amendment, change or
modification and shall state that copies of the instrument
embodying the same are on file at the principal corporate trust
office of the Trustee for inspection by all Participants.
ARTICLE X
MISCELLANEOUS
Section 10.01.
uwnersnip or certificates Any request, consent or other
instrument which this Indenture may require or permit to be
signed and executed by the participants may be in one or more
instruments of similar tenor, and shall be signed or executed by
such Participants in person or by their attorneys appointed in
writing. Proof of the execution of any such instrument or of an
instrument appointing any such attorney, or the ownership of
Certificates shall be sufficient (except as otherwise herein
expressly provided) if made in the following manner, but the
Trustee may, nevertheless, in its discretion require further or
other proof in cases where it deems the same desirable:
(a) The fact and date of the execution by any
Participant or his or her attorney of such instrument may
be proved by the certificate of any officer authorized to
take acknowledgments in the jurisdiction in which he or she
purports to act that the person signing such request or
other instrument acknowledged to him or her the execution
thereof, or by an affidavit of a witness of such execution,
duly sworn to before a notary public.
(b) The fact of the owning by any person of
Certificates and the amounts and numbers of such
Certificates, and the date of the owning of the same, may
be proved by a certificate executed by any trust company,
bank or bankers, wherever situated, stating that at the
date thereof the party named therein did exhibit to an
officer of such trust company or bank or to such bankers,
as the property of such party, the Certificates therein
mentioned, if such certificate shall be deemed by the
Trustee to be satisfactory. The Trustee may, in its
discretion, require evidence that such Certificates have
been deposited with a bank, bankers or trust company before
taking any action based on such ownership. In lieu of the
foregoing the Trustee may accept other proofs of the
foregoing as it shall deem appropriate.
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Any request or consent of the registered owner of any
Certificate shall bind all future registered owners of such
Certificate in respect of any thing done or suffered to be done
by the City or the Trustee in accordance therewith.
Section 10.02. Covenants of Lessor The Lessor hereby
covenants to the Trustee for the benefit of the Participants
that the Lessor will observe and comply with the covenants of
quiet enjoyment contained in Article V of the Lease, with its
covenant to cooperate with the Trustee in the enforcement of the
Lease (and with all of its representations and warranties under
the Lease). The Lessor agrees that wherever in the Lease it is
stated that the Lessor will notify the Trustee, or whenever the
Lease gives the Trustee some right or privilege or in any way
attempts to confer upon the Trustee the ability to protect the
security for payment of the Certificates, that such part of the
Lease shall be as if it were set forth in full in this
Indenture. The Lessor agrees that the Trustee as assignee of
the Lessor under the Lease may endorse, in its name or in the
name of the Lessor, all rights of the Lessor and all obligations
of the City under the Lease, for and on behalf of the
Participants, whether or not the Lessor is in default under this
Indenture. The Trustee and the Lessor hereby agree that the
Lessor shall not be obligated to make any payments or to take
any other action with respect to the Project under the Lease.
Section 10.03. Inspection of the Project The Trustee and
its duly authorized agents shall have the right, on reasonable
notice to the City, at all reasonable times, to examine and
inspect the Project. The Trustee and its duly authorized agents
shall also be permitted, at all reasonable times, to examine the
books, records, reports and other papers of the City with
respect to the Project.
Section 10.04. Parties Interest Herein With the
exception of rights herein expressly conferred on the City,
nothing in this Indenture expressed or implied is intended or
shall be construed to confer upon, or to give to, any person
other than, the City, the Lessor, the Trustee and the
Participants, any right, remedy or claim under or by reason of
this Indenture or any covenant, condition or stipulation hereof;
and all the covenants, stipulations, promises and agreements in
this Indenture contained by and on behalf of the Lessor or the
Trustee shall be for the sole and exclusive benefit of the City,
the Lessor, the Trustee and the Participants.
Section 10.05. Titles, Headings, Captions Etc The
titles, captions and headings of the articles, sections and
subdivisions of this Indenture have been inserted for
convenience of reference only and shall in no way modify or
restrict any of the terms or provisions hereof.
Section 10.06. Severabilitv In the event any provision
of this Indenture shall be held invalid or unenforceable by any
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court of competent jurisdiction, such holding shall not
invalidate or render unenforceable any other provision hereof.
Section 10.07. Governing Law This Indenture shall be
governed and construed in accordance with the laws of the State
of Colorado, without regard to conflict of laws principles.
Section 10.08. Execution in Counterparts This Indenture
may be executed in several counterparts, each of which shall be
an original and all of which shall constitute but one and the
same instrument.
Section 10.09. Notices All notices, certificates or
other communications shall be sufficiently given and shall be
deemed given when delivered or mailed by certified or registered
mail, postage prepaid, as follows: if to the City, City of
Pueblo, #1 City Hall Place, Pueblo, Colorado 81003, Attention:
City Manager; if to the Lessor, City of Pueblo, Colorado
Municipal Building Corporation, One City Hall Place, Pueblo,
Colorado 81003, Attention: President; and if to the Trustee,
The Pueblo Bank and Trust Company, 301 West Fifth Street,
Pueblo, Colorado 81003, Attention: Corporate Trust Department.
The City, the Lessor and the Trustee, may, by written notice,
designate any further or different addresses to which subsequent
notices, certificates or other communications shall be sent.
Section 10.10. Payments Due on Holidays If the date for
making any payment or the last day for performance of any act or
the exercising of any right, as provided in this Indenture,
shall not be a Business Day, such payment may be made or act
performed or right exercised on the next succeeding Business Day
with the same force and effect as if done on the normal date
provided in this Indenture.
Section 10.11. Lessor, City and Trustee Representatives
Whenever under the provisions hereof the approval of the Lessor,
the City or the Trustee is required, or the City, the Lessor or
the Trustee is required to take some action at the request of
the other, unless otherwise provided, such approval or such
request shall be given for the Lessor by a Lessor
Representative, for the City by the City Representative, and for
the Trustee by the Trustee Representative, and the Lessor, the
City and the Trustee shall be authorized to act on any such
approval or request.
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IN WITNESS WHEREOF, the Lessor and the Trustee have caused
this Indenture to be executed in their respective corporate
names and their respective corporate seals to be hereto affixed
and attested by their duly authorized officials or officers, all
as of the date first above written.
CITY OF PUEBLO, COLORADO
MUNICIPAL BUILDING
[SEAL] CORPORATION, AS LESSOR
Attest: By:
President
By:
Secretary
[SEAL]
THE PUEBLO BANK AND TRUST
COMPANY, AS TRUSTEE
Attest:
First Vice President an
Senior Trust Officer
By:
Trust Operations Supervisor
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Mill 11 111111 I 011111 ICI
STATE OF COLORADO
CITY OF PUEBLO
ss.
The foregoing instrument was acknowledged before me as of
the day of 1990, by , as
Presifent of the City of Pueblo, Colorado Munici.pa Bui ding
Corporation, a Colorado nonprofit corporation.
WITNESS my hand and official seal.
[SEAL]
My commission expires:
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STATE OF COLORADO
CITY OF PUEBLO
ss.
The foregoing instrument was acknowledged before me as of
the day of 1990, by
as Secretary of the City o Pueblo, Colorado Municipal Bui ing
Corporation, a Colorado nonprofit corporation.
WITNESS my hand and official seal.
[SEAL]
Notary Public
My commission expires:
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STATE OF COLORADO
CITY AND COUNTY
OF DENVER
ss.
The foregoing instrument was acknowledged before me as of
the day of 1990, by , as
Trust Operations Supervisor of The Pueblo Ban an Trust
Company, a State of Colorado chartered banking association, and
by , as Vice President and Senior
Trust Officer of T e Pueblo Ban and Trust Company, a State of
Colorado chartered banking association.
WITNESS my hand and official seal.
[SEAL]
Notary Public tor the State
of Colorado
My commission expires:
MMM
EXHIBIT A
CERTIFICATE OF PARTICIPATION
Evidencing Assignment of a
Proportionate Undivided Interest in
Rights to Receive Certain
Revenues Pursuant to the
Public Works Lease Purchase Agreement Between
CITY OF PUEBLO, COLORADO MUNICIPAL BUILDING CORPORATION,
as Lessor, and
CITY OF PUEBLO, COLORADO, as Lessee
No. R- $
INTEREST RATE: MATURITY DATE: ORIGINAL ISSUE DATE:
February 15, February 1, 1990
REGISTERED OWNER:
PRINCIPAL SUM: DOLLARS
THIS CERTIFIES THAT THE REGISTERED OWNER (named above), or
registered assigns, has a proportionate undivided interest in
rights to receive certain revenues, as described below, pursuant
to an annually renewable Public Works Lease Purchase Agreement
dated as of February 1, 1990 (which agreement as from time to
time amended is referred to herein as the "Lease "), between CITY
OF PUEBLO, COLORADO MUNICIPAL BUILDING CORPORATION, a Colorado
nonprofit corporation, as lessor (the "Lessor ") and CITY OF
PUEBLO, COLORADO (the "City "), as lessee. The interest of the
Registered Owner of this Certificate of Participation (this
"Certificate ") is secured as provided in the Lease and in the
Mortgage and Indenture of Trust dated as of February 1, 1990
(which indenture as from time to time amended is herein referred
to as the "Indenture "), between the Lessor and THE PUEBLO BANK
AND TRUST COMPANY, as trustee, or its successor (the "Trustee"
for the Registered Owners of the Certificates (the
"Participants "), whereby the rights (with certain exceptions) of
the Lessor as lessor under the Lease have been assigned by the
Lessor to the Trustee for the benefit of the Participants.
Under the Indenture, the Lessor has also granted to the Trustee,
for the benefit of the Participants, a leasehold mortgage on and
a security interest in the Project (as hereinafter defined).
Pursuant to the Lease and the Indenture, the Registered Owner
hereof is entitled to receive, solely out of and to the extent
available from the sources hereinafter identified, on the
Maturity Date (stated above) (or earlier as hereinafter
provided), the Principal Sum (stated above) , and interest
thereon as described in the Indenture at the Interest Rate
(stated above) per annum payable commencing on February 15,
1990, and annually thereafter on February 15 in each year.
Principal of and any premium on this Certificate are payable in
A -1
lawful money of the United States of America upon presentation
and surrender thereof at the principal corporate trust office of
the Trustee located in Pueblo, Colorado, or its successor; and
interest on this Certificate is payable to the Registered Owner
hereof by check or draft of the Trustee, or its successor, to be
mailed to such Registered Owner, on or before each interest
payment date (or, if such interest payment date is not a
Business Day, as defined in the Indenture, on or before the next
succeeding Business Day), at his or her address as it last
appears in the registration books kept by the Trustee.
REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS
CERTIFICATE SET FORTH ON ATTACHMENT I HERETO WHICH SHALL FOR ALL
PURPOSES HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH HEREIN.
This Certificate shall not be valid or become obligatory
for any purpose or be entitled to any security or benefit under
the Lease, until executed on behalf of the Trustee.
IN WITNESS WHEREOF, this Certificate has been executed with
the manual signature of an authorized officer of the Trustee and
has been authenticated by the manual or facsimile signature of
an authorized representative of the City, all as of the date set
forth below.
Dated:
THE PUEBLO BANK AND TRUST
COMPANY, as Trustee
By:
Authorized Officer
A -2
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates of Participation evidencing
a proportionate interest in rights to receive certain revenues
pursuant to the within - mentioned Lease and Indenture.
(CITY SEAL)
Attest:
CITY OF PUEBLO, COLORADO
By:
President of the City
Council
By:
City Clerk
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ATTACHMENT I
to
CERTIFICATE OF PARTICIPATION
EVIDENCING ASSIGNMENT OF A
PROPORTIONATE UNDIVIDED INTEREST IN RIGHTS
TO RECEIVE CERTAIN REVENUES PURSUANT TO
THE PUBLIC WORKS
LEASE PURCHASE AGREEMENT
BETWEEN
CITY OF PUEBLO, COLORADO MUNICIPAL BUILDING CORPORATION,
AS LESSOR,
AND
CITY OF PUEBLO, COLORADO, AS LESSEE
This Certificate is one of an issue of Certificates
evidencing assignments of proportionate undivided interests in
rights to receive certain Revenues, as described below, pursuant
to the Lease and the Indenture, issued, in an aggregate
principal amount of $565,000, pursuant to the Indenture for the
purpose, among others, of providing funds to finance the
construction, acquisition and equipping of a public works and
transportation facility (the "Facility "), on a certain parcel of
land (the "Site ") owned by the Lessor and leased to the City
pursuant to the Lease.
Under the Lease, the Facility and the Site, as defined in
the Lease (collectively, the "Project "), have been leased by the
Lessor to the City; and the City has agreed to pay directly to
the Trustee annual rental payments (the "Base Rentals ") in
consideration for its right to use the Project, the proceeds of
which are required by the Indenture to be distributed by the
Trustee to the payment of the principal of, premium, if any, and
interest on the Certificates. In addition to the Base Rentals,
the City has agreed to make certain other payments (the
"Additional Rentals ") sufficient to pay the fees and expenses of
the Trustee, certain insurance premiums, taxes, utility charges,
costs of maintenance and repair, payments to the Rebate Fund (as
defined in the Lease) and other expenses expressly required to
be paid by the City under the Lease.
The Lease is subject to annual renewal at the option of the
City. The obligation of the City to pay Base Rentals and
Additional Rentals under the Lease will terminate in the event
that the City, for any reason, fails to budget and appropriate,
specifically with respect to the Lease, moneys to pay all Base
Rentals and reasonably estimated Additional Rentals during the
next occurring renewal term of the Lease. In the event that the
Lease Term ( as defined in the Lease) is terminated by the City
as set forth above (herein referred to as an "Event of
Nonappropriation ") or is terminated by reason of an Event of
Default (as defined in the Lease), the principal amount of this
Certificate and interest hereon will be payable from such
moneys, if any, as may be available for such purpose, including
A -4
any moneys received by the Trustee from leasing, selling or
assigning its interest in the Project. Under certain
circumstances, this Certificate and the interest hereon may also
be payable from the Net proceeds (as defined in the Lease) of
title and casualty insurance policies or condemnation awards.
The Lease Term may also be terminated in the event that the City
shall exercise its option to purchase the Project by making
payment of the Purchase Option Price (as defined in the Lease).
In the event that the City shall pay the Purchase Option Price,
the proceeds thereof are required to be used to pay the
principal of, premium, if any, and interest on the Certificates.
Reference is hereby made to the Lease and the Indenture for
a description of the rights, duties and obligations of the City,
the Lessor, the Trustee and the Participants, the terms upon
which Additional Certificates may be issued, the terms upon
which the Certificates and any Additional Certificates are
secured, the terms and conditions upon which the Certificates
will be deemed to be paid at or prior to maturity of redemption
of the Certificates upon the making of provision for the full or
partial payment thereof, and the rights of the Participants upon
the occurrence of an Event of Default or an Event of
Nonappropriation.
NEITHER THE LEASE NOR THE CERTIFICATES CONSTITUTES A
GENERAL OBLIGATION OR OTHER INDEBTEDNESS OF THE CITY WITHIN THE
MEANING OF ANY CONSTITUTIONAL, STATUTORY OR CHARTER DEBT
LIMITATION. NEITHER THE LEASE, THE INDENTURE NOR THE
CERTIFICATES HAVE DIRECTLY OR INDIRECTLY OBLIGATED THE CITY TO
MARE ANY PAYMENTS BEYOND THOSE APPROPRIATED FOR ANY FISCAL YEAR
IN WHICH THE LEASE SHALL BE IN EFFECT. EXCEPT TO THE EXTENT
PAYABLE FROM THE PROCEEDS OF THE SALE OF THE CERTIFICATES AND
INCOME FROM THE INVESTMENT THEREOF, FROM NET PROCEEDS OF CERTAIN
INSURANCE POLICIES AND CONDEMNATION AWARDS, FROM NET PROCEEDS OF
LEASING, SALE OR ASSIGNMENT OF THE TRUSTEE'S INTEREST IN THE
PROJECT, OR FROM OTHER AMOUNTS MADE AVAILABLE UNDER THE
INDENTURE, THIS CERTIFICATE WILL BE PAYABLE DURING THE LEASE
TERM SOLELY FROM BASE RENTALS TO BE PAID BY THE CITY UNDER THE
LEASE AND THE INCOME FROM CERTAIN INVESTMENTS THEREUNDER. ALL
PAYMENT OBLIGATIONS OF THE CITY UNDER THE LEASE, INCLUDING,
WITHOUT LIMITATION, THE OBLIGATION OF THE CITY TO PAY BASE
RENTALS, ARE FROM YEAR TO YEAR ONLY AND DO NOT CONSTITUTE A
MANDATORY PAYMENT OBLIGATION OF THE CITY IN ANY FISCAL YEAR
BEYOND A FISCAL YEAR IN WHICH THE LEASE SHALL BE IN EFFECT. THE
LEASE IS SUBJECT TO ANNUAL RENEWAL AT THE OPTION OF THE CITY AND
WILL BE TERMINATED UPON THE OCCURRENCE OF A TERMINATION EVENT.
IN SUCH EVENT, ALL PAYMENTS FROM THE CITY UNDER THE LEASE WILL
TERMINATE, AND THIS CERTIFICATE AND THE INTEREST HEREON WILL BE
PAYABLE FROM CERTAIN MONEYS, IF ANY, HELD BY THE TRUSTEE UNDER
THE INDENTURE AND MONEYS MADE AVAILABLE BY ACTION OF THE TRUSTEE
REGARDING THE SITE AND THE PROJECT. THE LESSOR HAS NO
OBLIGATION TO MAKE ANY PAYMENTS ON THE CERTIFICATES.
A -5
The Certificates are issuable solely as fully registered
Certificates without coupons in denominations of $1,000 and any
integral multiple thereof.
This Certificate is transferable by the Registered Owner
hereof in person or by his or her attorney duly authorized in
writing on the registration books kept at the principal
corporate trust office of the Trustee upon surrender of this
Certificate together with a duly executed written instrument of
transfer satisfactory to the Trustee. Upon such transfer, a new
fully registered Certificate or Certificates of the same
maturity, of authorized denomination or denominations, for the
same aggregate principal amount, will be issued to the
transferee in exchange herefor, all upon payment of the charges
and subject to the terms and conditions set forth in the
Indenture. The Trustee may deem and treat the person in whose
name this Certificate is registered as the absolute owner
hereof, whether or not this Certificate shall be overdue, for
the purpose of receiving payment and for all other purposes, and
neither the City nor the Trustee shall be affected by any notice
to the contrary.
Certificates may be exchanged at the principal corporate
trust office of the Trustee for a like aggregate principal
amount of Certificates of the same date, maturity, series and
interest rate, or for a like aggregate principal amount of
Certificates of other authorized denominations of the same date,
maturity, series and interest rate. The City shall authenticate
and the Trustee shall execute and deliver Certificates which the
registered owner thereof making the exchange is entitled to
receive, bearing numbers not then Outstanding.
The Trustee shall not be required to transfer or exchange
the Certificates during the period of 15 days next preceding
any interest payment date of such Certificate nor to transfer or
exchange any Certificate after the publication or the mailing of
notice calling such Certificate for redemption has been given as
herein provided, nor during the period of 15 days preceding the
giving of such notice of redemption.
In the event that this Certificate is called for redemption
in part only, upon surrender and cancellation of this
Certificate, a new fully registered Certificate or Certificates
of the same maturity, of authorized denomination, in an
aggregate principal amount equal to the unredeemed portion
hereof, shall be executed and delivered by the Trustee to the
Registered Owner hereof.
The Certificates are subject to redemption as follows:
(a) The Certificates shall be called for redemption
on any Interest Payment Date in the event of, and to the
extent that moneys are actually received by the Trustee
from the exercise by the City of its option to purchase the
A -6
Project, as provided in the Lease, upon payment of the then
applicable Purchase Option Price.
(b) The Certificates, in whole or in part, shall be
callable for redemption prior to maturity, at the option of
the City, on any Interest Payment Date.
(c) The Certificates shall be called for redemption
in the event and only to the extent that any Extraordinary
Revenues (as defined in the Lease) are deposited into the
Extraordinary Redemption Fund, other than as provided in
(a) or (b) above or in (d) below.
(d) The Certificates may also be called for
redemption as set forth below upon the occurrence of a
Termination Event.
In the event the Certificates are redeemed pursuant to (a)
above, the Certificates shall be redeemed in whole at par, plus
accrued interest to the redemption date.
In the event that the Certificates are redeemed pursuant to
(b) and (c) above, the Certificates shall be redeemed in whole,
or in part in inverse order of maturity and by lot within any
maturity, selected in such a manner as the Trustee shall
determine, at a redemption price at par plus accrued interest to
the redemption date, on the first Business Day for which notice
of redemption may be given. If the Certificates are redeemed in
part and less than all of the Certificates of a single maturity
are to be redeemed, the Trustee shall select Certificates of
such maturity for redemption, by lot in such manner as the
Trustee shall determine.
Upon the occurrence of a Termination Event (as defined in
the Indenture), the Certificates shall be payable from such
moneys as may be obtained by the Trustee through the exercise of
its rights under the Indenture. Upon the occurrence of a
Termination Event, the Trustee may commence proceedings for
subleasing the Site and leasing the Project or the sale or
assignment of the Trustee's interest in the Project and the Site
as provided in the Indenture, and may call the Certificates for
redemption from the Net Proceeds of such subleasing of the Site
and leasing, sale or assignment of the Project and all other
moneys, if any, then on hand and being held by the Trustee for
the Participants, subject to the provisions of the Indenture, at
100% of the principal amount thereof plus accrued interest to
the redemption date. In the event that such Net Proceeds and
other moneys are insufficient to redeem the Certificates at 100%
of the principal amount thereof plus accrued interest to the
redemption date, such Net Proceeds and other moneys shall be
allocated proportionately among the Certificates, according to
the principal amount thereof Outstanding. In the event that
such Net Proceeds and other moneys are in excess of the amount
A -7
I
required to redeem the Certificates at 100% of the principal
amount thereof plus accrued interest to the redemption date,
then such excess moneys shall be paid to the City. Prior to any
distribution of such Net Proceeds in redemption of the
Certificates, the Trustee shall be entitled to payment of its
customary fees for all services rendered in connection with such
liquidation, as well as reimbursement for all costs and expenses
incurred thereby from the proceeds of such foreclosure and sale.
A PARTICIPANT SHOULD NOT ANTICIPATE THAT IT WILL BE POSSIBLE TO
FORECLOSE ON AND SELL THE PROJECT FOR ANY AMOUNT EQUAL TO THE
AGGREGATE PRINCIPAL AMOUNT OF THE CERTIFICATES THEN OUTSTANDING
PLUS ACCRUED INTEREST THEREON. IF THE CERTIFICATES ARE REDEEMED
SUBSEQUENT TO THE OCCURRENCE OF A TERMINATION EVENT FOR AN
AMOUNT LESS THAN THE AGGREGATE PRINCIPAL AMOUNT THEREOF PLUS
ACCRUED INTEREST TO THE REDEMPTION DATE, NO REGISTERED OWNER OF
ANY CERTIFICATE SHALL HAVE ANY FURTHER CLAIM FOR PAYMENT AGAINST
THE CITY, THE LESSOR OR THE TRUSTEE.
In the event any of the Certificates are called for
redemption as aforesaid, the Trustee shall cause notice of the
call for redemption, identifying the Certificates or portions
thereof to be redeemed, to be given by mailing, at least 30 days
and not more than 60 days prior to the redemption date, as
provided in the Indenture. All Certificates so called for
redemption shall cease to bear interest after the specified
redemption date, provided that such funds as may be available
for their redemption pursuant to the Lease (which, in the case
of a Termination Event, as defined in the Indenture, may be less
than the full principal amount of the Outstanding Certificates
and accrued interest thereon to the redemption date) are on
deposit at the place of payment at that time.
The Trustee shall pay to the Registered Owners of
Certificates to be redeemed, or their representatives duly
authorized in writing, the amounts due on their respective
Certificates at the principal corporate trust office of the
Trustee; provided, however, that, if redeemed in part, the
Certificates may only be redeemed in multiples of $1,000.
Redemption payments shall be accompanied by a written
designation prepared by the Trustee stating the portion of the
payment representing the unpaid principal amount of each
Certificate immediately prior to the payment, the portion
representing interest and the remaining portion, if any, which
shall be designated and paid as, a redemption premium.
The Trustee may waive an Event of Nonappropriation or an
Event of Default under certain circumstances as provided in the
Lease and the Indenture.
The Indenture permits amendments thereto and to the Lease,
upon the agreement of the City and the Trustee and compliance
with the other requirements of the Indenture, including but not
limited to, in certain cases the approval of the Registered
Owners of not less than two - thirds or, for certain amendments,
100% in aggregate principal amount of the Certificates at the
time Outstanding, as defined in the Lease. The Lease also
contains provisions permitting the City and the Trustee to enter
into amendments to the Indenture and the Lease without the
consent of the Registered Owners of the Certificates for certain
purposes. The Indenture requires the written consent of the
Trustee to any amendment of the Indenture or the Lease which
modifies the rights, duties or immunities of the Trustee.
Any consent or request by the Registered Owner of this
Certificate shall be conclusive and binding upon such owner and
upon all future Registered Owners of this Certificate and of any
Certificate issued upon the transfer of this Certificate whether
or nor notation of such consent or request is made upon this
Certificate.
This Certificates is issued with the intent that the laws
of the State of Colorado shall govern its legality, validity,
enforceability and construction.
LEGAL OPINION CERTIFICATE
The undersigned City Clerk of the City of Pueblo, Colorado,
hereby certifies that in connection with the issuance of the
Certificates of Participation, an opinion in substantially the
form attached was delivered to the City of Pueblo, Colorado.
By:
City Clerk
A -9
(Form of Transfer)
FOR VALUE RECEIVED the undersigned hereby sells, assigns
and transfers unto (Please Insert Social Security or the
Identifying Number of Transferee) (Please Print or Type Name and
Address of Transferee) the within Certificate and all rights
thereunder, and hereby irrevocably constitutes and appoints
attorney to transfer the within Certificate
on the books ept for registration thereof, with full power of
substitution in the premises.
Dated:
Signature Guaranteed: NOTICE: The signature to
this assignment must
correspond with the name as
it appears upon the face of
NOTICE: Signature(s) must the within Certificate in
be guaranteed by a member every particular without
firm of the New York Stock alteration or enlargement
Exchange or a commercial or any change whatever.
bank or trust company.
TRANSFER FEE MAY BE REQUIRED
A -10
W1110111!1 11V! 1pN5 111 1
EXHIBIT B
CITY OF PUEBLO, COLORADO MUNICIPAL BUILDING CORPORATION
A parcel of land located within the City of Pueblo, State of
Colorado described as follows:
Lots 1 to 9, Lots 11, 12, and 13, Lots 17 to 32, Block 70, South
Pueblo.
Lots A, B, C & D in Trackage Subdivision, A Resubdivision of
Lots 14, 15, and 16, Block 70, South Pueblo.
Lots 1 to 16, Lots 17 to 32, Block 80, South Pueblo.
Together with that portion of Mechanic Street vacated by
Ordinance No. 976, recorded September 19, 1980 in Book 2044 at
Page 622, all the alleys in Blocks 70 and 80 vacated by
Ordinance No. 1524, recorded November 20, 1980 in Book 2051 at
Page 503, and portion of "E" Street vacated by Ordinance no. 51,
recorded March 3, 1950 in Book 1117 at page 358 and recorded
June 18, 1953 in Book 1212 at Page 360 appurtenant thereto.
Also Grantor's interest in all portions of vacated alleys in
said Blocks, and in all portions of vacated Mechanic Street and
"E" Street appurtenant thereto.
B -1
' ARTICLES OF INCORPORATION
Pursuant to the provisions of the Colorado Nonprofit
Corporation Act, the undersigned person acting as incorporator
of a corporation, signs, and acknowledges the following for such
corporation:
ARTICLE I - NAME
The name of the corporation shall be "City of Pueblo,
Colorado Municipal Building Corporation."
ARTICLE II - DURATION
The period of duration of the corporate existence of the
corporation shall be perpetual.
ARTICLE III - PURPOSES
The purpose for which the corporation is organized is as
follows: The Corporation shall be organized as a nonprofit
organization:
(a) To acquire, improve or extend any improvements,
facilities, or properties and appurtenances to them which the
City of Pueblo, Colorado, a municipal corporation of the State
Of Colorado (the "City "), is authorized by law to acquire,
including, but not limited to, land, personal property, public
buildings or other structures of every nature or any joint or
partial interest in same, within or without the boundaries of
the City, and to finance the costs thereof on behalf of the
City, in order to accomplish the public purposes of the City.
(b) To enter into leasing contracts with the City
whereby any such improvements, facilities, properties and
appurtenances are leased by the Corporation to the City for use
by the City.
(c) To borrow money and to become indebted and to
execute and deliver bonds, notes, certificates, debentures or
other evidence of indebtedness, for the purpose of acquiring,
improving or extending any such improvements, facilities,
properties and appurtenances, and for such other purpose or
purposes as may be necessary to accomplish the objectives of
this Corporation. Such indebtedness may be either unsecured or
secured by any mortgage, trust deed, security agreement or other
item upon the property to be acquired.
(d) To conduct the business of the Corporation in
such manner so that ultimately at the time that any such
indebtedness of the Corporation incurred as provided in (c)
above is paid in full, the title and ownership of said
improvements, facilities, properties and appurtenances will be
vested in the City of Pueblo, Colorado.
(e) To exercise all powers, privileges and rights
necessary or advisable to carry out the objects and purposes for
which such Corporation is formed, and the Directors hereby claim
for this Corporation all the benefits, privileges, rights and
powers created, extended or conferred by the provisions of all
applicable laws of the State of Colorado, pertaining to
corporations not for profit, and any amendments thereto.
ARTICLE IV - ADDRESS AND REGISTERED AGE
The address of the initial registered office of the
r
corporation is 1 City Hall Place, Pueblo, Colorado 81003; and
the registered agent of the corporation is Billy G. Martin. The
address of the principal office of the Corporation is 1 City
Hall Place, Pueblo, Colorado 81003.
-2-
r__
ARTICLE V - RESTRICTIONS ON POWERS OF BOARD OF DIRECTORS
The powers of the Board of Directors of the Corporation,
Officers and others are restricted as follows:
a. No part of the net earnings of the
Corporation shall inure to the benefit of
any Director or Officer of the Corporation
or any private individual (except that
reasonable compensation may be paid for
services rendered to or for the Corporation
in effecting one or more of its purposes).
b. No Director or Officer of the
Corporation, or any private individual,
shall be entitled to share in the
distribution of any of the corporate assets
upon dissolution of the Corporation.
C. No substantial part of the activities
of the Corporation shall be the carrying on
of propaganda, or otherwise attempting to
influence legislation, and the Corporation
shall not participate or intervene in
(including the publishing or distributing of
statements) any political campaign on behalf
of any candidate for public office.
d. Notwithstanding any other provision of
these Articles, the Corporation shall not
carry on any other activities not permitted
to be carried on (1) by a corporation exempt
from federal income tax under Section
501(c)(3) of the Internal Revenue Code of
1986, as amended (or the corresponding
provision of any future United States
Internal Revenue Law) or ( 2 ) by a
Corporation, contributions to which are
deductible under Section 170(c)(2) of the
Internal Revenue Code of 1986, as amended
or the corresponding provision of any
future United States Internal Revenue Law).
ARTICLE VI - MEMBERS
There shall be no members of the Corporation.
-3-
P -11 __ .
ARTICLE VII - BOARD OF DIRECTORS
The number of Directors of the Corporation shall be three.
The names and addresses of the members of the initial Board of
Directors are:
NAME
1. Billy G. Martin
ADDRESS
1 City Hall Place
P.O. Box 1427
Pueblo, Colorado 81002
2. John A. Califano
1 City Hall Place
P.O. Box 1427
Pueblo, Colorado 81002
3. Fay Kastelic 1 City Hall Place
P.O. Box 1427
Pueblo, Colorado 81002
ARTICLE VIII - INCORPORATORS
The names of each incorporator are as follows:
NAME
Robert A. Backus
ADDRESS
1775 Sherman Street, #1700
Denver, Colorado 80203
ARTICLE IX - REGULAR AND SPECIAL MEETINGS
The annual, regular and special meetings of this
Corporation, and the place, time and manner of giving notice of
such meetings, shall be in accordance with the applicable law
and be prescribed by the By -Laws of this Corporation.
ARTICLE X - PROPRIETARY INTEREST OF MEMBERS
The Directors of this Corporation shall have no private or
proprietary interest in the Corporation.
The Board of Directors shall serve as such without
compensation, and no part of the Corporation's net earnings will
inure to the benefit of any individual; provided, however, that
the Board of Directors may allow the expenses necessarily
-4-
incurred by a Director in the performance of his or her duties
as a Director.
ARTICLE XI - DISSOLUTION
Upon the dissolution of the Corporation, the Board of
Directors shall, after paying or making provision for the
payment of all of the liabilities and obligations of the
Corporation, transfer the remaining assets of the Corporation to
the City. Any such assets not so disposed of shall be disposed
of by the court having probate jurisdiction over the City of
Pueblo, Colorado, exclusively for such purposes or to such
organizations, as said court shall determine, which in the
judgment of the court will best accomplish the general purposes
for which the Corporation was organized.
ARTICLE XII - AMENDMENT
These Articles of Incorporation may be amneded by the
affirmative vote of a majority of the members of the Board of
Directors and the affirmative vote of the City Council of the
City of Pueblo, Colorado. Notwithstanding the foregoing, these
Articles of Incorporation may not be amended so as to be
inconsistent with applicable law.
Provided that the Board of Directors shall have first
obtained the consent of the City Council of the City, the Board
of Directors, may, at any time, alter or change the structure,
organization, programs, or activities of the Corporation,
subject to the rights of holders of the Corporation's bonds,
notes, certificates, debentures and parties to its other
obligations.
-5-
The Directors of the Corporation shall have the right from
time to time on the affirmative vote of a majority of the
Directors and an affirmative vote of the City Council of the
City, and not otherwise, to amend, alter, change, or repeal any
provision contained in these Articles of Incorporation in the
manner now or hereinafter prescribed by statute, except that no
such amendment, alteration, change or repeal shall be made which
shall:
a. Amend, alter, change, or repeal the
restrictions set forth in Articles V and X;
b. Operate to permit the use, application,
or disbursement of any principal or income
of the Corporate property or any part
thereof for any purpose other than those
herein expressly provided for, or other
exclusively charitable, scientific, or
educational purpose;
c. Operate to permit the principal or
income of any bequest, devise, grant, or
gift to the Corporation to be used contrary
to the conditions, limitations or
restrictions contained in any bequest,
devise, grant, or gift.
ARTICLE XIII - INDEMNIFICATION
A. The Corporation shall indemnify any person who was or
is a party or is threatened to be made a party to any
threatened, pending, or completed action, suit, or proceeding,
whether civil, criminal, administrative, or investigative (other
than an action by or in the right of the Corporation) by reason
of the fact that he is or was a director, officer, employee,
fiduciary, or agent of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, employee,
IM.
fiduciary, or agent of another corporation, partnership, joint
venture, trust, or other enterprise, against expenses (including
attorney's fees), judgments, fines, and amounts paid in
settlement actually and reasonably incurred by him in connection
with such action, suit, or proceeding if he acted in good faith
and in a manner he reasonably believed to be in or not opposed
to the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any
action, suit, or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent
shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was
unlawful.
B. The Corporation shall indemnify any person who was or
is a party or is threatened to be made a party to any
threatened, pending, or completed action or suit by or in the
right of the Corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer,
employee, fiduciary, or agent of the Corporation, or is or was
serving at the request of the Corporation as a director,
officer, employee, fiduciary, or agent of another corporation,
partnership, joint venture, trust, or another enterprise against
-7-
expenses (including attorney's fees) actually and reasonably
incurred by him in connection with the defense or settlement of
such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best
interests of the Corporation and except that no indemnification
shall be made in respect to any claim, issue or matter as to
which such person shall have been adjudged to be liable for
negligence or misconduct in the performance of his duty to the
Corporation unless and only to the extent that the court in
which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly
and reasonably entitled to indemnify for such expenses which the
court shall deem proper.
C. To the extent that a director, officer, employee,
fiduciary, or agent of the Corporation has been successful on
the merits or otherwise in defense of any action, suit, or
proceeding referred to in subparagraphs A or B of this Article
XIV, or in defense of any claim, issue, or matter therein, he
shall be indemnified against expenses (including attorney's
fees) actually and reasonably incurred by him in connection
therewith.
D. Any indemnification under subparagraphs A or B of this
Article XIV, (unless ordered by a court) and as distinguished
from subparagraph C of this Article, shall be made by the
WE
P.T
Corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer,
employee, fiduciary, or agent is proper in the circumstances
because he has met the applicable standard of conduct set forth
in subparagraphs A or B above. Such determination shall be made
(1) by the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to such action,
suit or proceeding, or (2) if such quorum is not obtainable, or,
even if obtainable and a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion.
E. Expenses incurred in defending a civil or criminal
action, suit, or proceeding may be paid by the Corporation in
advance of the final disposition of such action, suit, or
proceeding as authorized by the Board of Directors in the
specific case upon receipt of an undertaking by or on behalf of
the director, officer, employee, fiduciary, or agent to repay
such amount unless it shall ultimately be determined that he is
entitled to be indemnified by the Corporation as authorized
herein.
F. The indemnification provided by this Article XII shall
not be deemed exclusive of any other rights to which those
indemnified may be entitled under any bylaw, agreement, vote of
shareholders or disinterested directors, or otherwise, and any
procedure provided for by any of the foregoing, both as to
action in his official capacity and as to action in another
!M
capacity while holding such office, and shall continue as to a
person who has ceased to be a director, officer, employee,
fiduciary, or agent and shall inure to the benefit of heirs,
executors, and administrators of such a person.
G. No indemnification shall be made of any Director if
the Director received improper personal benefits even if the
Corporation is not damaged.
ARTICLE XIV - LIABILITY OF DIRECTORS
Directors shall not be liable to the Corporation for
monetary damages for breach of fiduciary duty as a Director,
except for his duty of loyalty to the Corporation; except for
acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law; except for acts
specified in C.R.S. 7 -24 -111 which are included herein by
rofo=c - ±r:o as iF f "ll1 gnfi for ±l'
f
transaction from which the Director derived an improper personal
benefit.
These Articles of Incorporation, consisting of pages 1 to
11, inclusive, has been duly adopted by the incorporator.
IN WITNESS WHEREOF, the incorporator of the City of Pueblo,
Colorado Municipal Building Corporation, has caused these
Articles of Incorporation to be signed, this /41"� day of
February, 1990.
Incorporator C
R e A. Bac u
-10-
STATE OF COLORADO )
COUNTY OF PUEBLO ) ss.
The foregoing instrument was acknowledged before me this
day of February, 1990, by Robert A. Backus, as incorporator
of the City of Pueblo, Colorado Municipal Building Corporation,
Pueblo County, Colorado; and being first duly sworn by me, he
severally acknowledged that he signed the foregoing document in
the respective capacities therein set forth and declared that
the statements therein contained are true and correct to the
best of his knowledge, information and belief.
WITNESS my hand and official seal the day and year above
written.
Notary Pu
My commission expires: _y l z /- (7 2—
1775 Sherman Street, Suite 1700
Denver, Colorado 80203
[S E A L)
-11-
STATE OF COLORADO
DEPARTMENT OF
STATE
CERTIFICATE
I, NATALIE MEYER, Secretary of State of the State of
Colorado hereby certify that the prerequisites for the
issuance of this certificate have been fulfilled in compli-
ance with law and are found to conform to law.
Accordingly, the undersigned, by virtue of the authority
vested in me by law, hereby issues A CERTIFICATE OF
INCORPORATION TO CITY OF PUEBLO, COLORADO MUNICIPAL
BUILDING CORPORATION, A NONPROFIT CORPORATION.
■
STATE
/ Ov Co- \
un
O
P� I " 8 � ORADO
DEPARTMENT OF
STATE
CERTIFICATE
I, NATALIE MEYER, Secretary of State of the State of
Colorado hereby certify that
According to the records of this office
CITY OF PUEBLO, COLORADO MUNICIPAL BUILDING CORPORATION
(COLORADO NONPROFIT CORPORATION)
has complied with the applicable provisions of the laws of
the State of Colorado and on this date is in good standing
and authorized and competent to transact business or to
conduct its affairs within this state.
Dated: JULY 2, 1992
I 1 ■
EXHIBIT D
7
a
EXHIBIT B
BYLAWS
OF THE
CITY OF PUEBLO, COLORADO
MU BUIL DING COR
ARTICLE I
OFFICE OF THE CORPORATION'
The principal office of the Corporation shall.be located
at 1 City Hall Place, Pueblo, Colorado 81003.
ARTICLE II
MEMBERS AND DIRECTORS
Section 1. DESIGNATION. The Corporation shall consist
of those persons who shall at the time constitute the Board
of Directors thereof, who shall each have one vote in the
conduct of the affairs of the Corporation.
The provisions for the appointment or election of
directors, the term of office thereof, and the provisions for
meeting of directors shall be as hereafter set forth in
Article III relating to Directors.
Section 2. PROPERTY INTEREST O M EMBER S AND D IRECTORS.
No Director of the Corporation shall have any right, title or
interest in or to any real or personal property or other
assets of the Corporation during its existence, or upon the
dissolution of the Corporation.
Section 3. NO L IABIL ITY FOR D The private
property of the Directors shall be exempt from execution or
other liability for any debts of the Corporation and no
Director shall be liable or responsible for the debts or
liabilities of the Corporation.
ARTICLE III
BOARD OF DIRECTORS
Section 1. GENER POWERS The business and affairs of
the Corporation shall be managed by three directors who shall
constitute the Board of Directors of the Corporation and who
shall be elected at the annual meeting of the Directors or
-1-
WP217102- 002/19
some adjournment thereof. Directors shall hold office until
the next succeeding annual meeting of the Board of Directors
or until their successors shall have been elected and shall
qualify; however, no provision of this Section shall be
restrictive upon the rights of the Board of Directors to fill
vacancies.
Section 2. ANNUAL ME ETINQ . . A regular annual meeting of
the Directors of the corporation shall be held at the
principal place of business, on the third Tuesday of January,
each year, at 3:00 p.m., or such other day thereafter as the
Directors shall set, for the purpose of electing officers and
for the transaction of such other business as may come before
the meeting. If the day fixed for the annual meeting shall
be a legal holiday in the State of Colorado, the meeting
shall be held on the next succeeding business day.
Section 3. SPECIAL MEET Special
called by he President or any member of the
Directors, and it shall then be the duty of
cause notice of such meeting to be given as
provided. Special meetings may be held at
or outside Pueblo, Colorado.
meetings may be
Board of
the Secretary to
hereinafter
any place within
Section 4. NOTI E�F MEETINGS. Written notice of the
date, time and place of each special meeting shall be
delivered or mailed by first class United States mail at
least three days prior to the date of meeting. Telephone
notice made to the Director stating the date, time and place
of the meeting may be made in the alternative to written
notice 29 hours prior to the time of the meeting. Waiver of
the Notice of any meeting may be given by a Director, either
before or after the time of such meeting, and attendance at
any meeting shall constitute a waiver of the notice of such
meeting.
Section 5. Q A majority of the Board of
Directors shall constitute a quorum for the transaction of
business at any meeting, and if less than a quorum is
present, a majority of the directors present may adjourn the
meeting from time to time without further notice.. All
Resolutions or motions for the transaction of the business of
the Corporation shall require the affirmative vote of a
majority of the Board of Directors present.
Section 6. VACANCY Whenever a vacancy shall occur in
the membership of the Board of Directors, or whenever the
terms of office of any Director shall cease, such vacancy or
vacancies shall be filled by a majority vote of the remaining
members of the Board of Directors. A Director elected to
fill a vacancy shall be elected for the unexpired term of
WP217102- 002/19 -2-
office so filled. If there shall, at any time, be no
remaining members of the Board of Directors to fill any
vacancy or vacancies in the membership of the Board of
Directors, new directors may be appointed by the registered
owners of a majority in aggregate outstanding principal
amount of certificates of participation in any lease revenues
issued by or on behalf of the Corporation, by an instrument
or concurrent instruments in writing signed by such
registered owners, or by their attorneys in fact duly
authorized, a copy of which shall be delivered personally or
sent by registered mail to the trustee for such certificates
and to the City. In case of any such vacancies, the
trustee(s) for the majority in aggregate outstanding
principal amount of such certificates of participation may
appoint new directors to fill such vacancies temporarily
until the registered owners shall appoint directors as
aforesaid; provided, however, that if the registered owners
have not appointed new directors within three months of the
last resignation by a director, the right of the registered
owners to appoint new directors shall be deemed waived and
the directors appointed by the trustee(s) shall be the new
directors of the Corporation.
Section 7. C-0—MPEN5-AT The members of the Board of
Directors shall not receive any salary or compensation for
their services. By resolution of the Board, however, a fixed
sum and expenses for attendance, if any, may be allowed for
attendance at each regular or special meeting of the Board.
ARTICLE IV
OFFICERS
Section 1. OFFICERS. The officers of the Corporation
shall be a President, Vice President, a Secretary and a
Treasurer. Any two or more offices may be held by the same
person, except that the offices of the President and
Secretary shall not be held by the same person.
Section 2. ELECTION AND TERM O O FFICE. The officers
of the Corporation shall be elected annually by the Board of
Directors at the regular annual meeting of the Board. Each
officer shall hold office until his successor shall have been
duly elected and shall have qualified.
section 3. REMOVAL. Any officer elected or appointed
by the Board of Directors may be removed by a unanimous vote
of the remaining members of the Board, whenever the best
interest of the Corporation would be served thereby.
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WP217102- 002/19
Section 4. VACANCY. A vacancy in any office because of
death, resignation, removal, disqualification or otherwise,
may be filled by the Board of Directors for the unexpired
portion of the term.
Section 5. PR ES I DENT . The President shall be the
principal executive officer of the Corporation and shall in
general supervise and control all of the business and affairs
of the Corporation. He shall preside at all meetings of the
Board of Directors. He may sign, together with the Secretary
or any other proper officer of the Corporation authorized by
the Board of Directors, any leases, deeds, mortgages, bonds,
contracts or other instruments which the Board of Directors
has authorized to be executed, except in cases where the
signing and execution thereof shall be expressly delegated by
the Board or these Bylaws or by Statute to some other officer
or agent of the Corporation; and in general he shall perform
all duties incident to the office of President and such other
duties as may be prescribed by the Board of Directors from
time to time.
Section 6. VICE P RESIDENT. In the absence of the
President or in the event of his inability or refusal to act,
the Vice President shall perform the duties of the President,
and when so acting, shall have all the powers of and be
subject to all the restrictions upon the President. The Vice
President shall perform such other duties as from time to
time may be assigned to him by the President or by the Board
of Directors.
Section 7. TREASURER. If required by the Board of
Directors, the Treasurer shall give a bond for the faithful
discharge of his duties in such sum and with such surety or
sureties as the Board of Directors shall determine. He shall
have charge and custody of and be responsible for all funds
and securities of the Corporation; receive and give receipts
for moneys due and payable to the Corporation from any source
whatsoever, and deposit all such moneys in the name of the
Corporation in such banks, trust companies or other
depositories as shall be selected, and in general perform all
the duties incident to the office of Treasurer and such other
duties as from time to time may be assigned to him by the
President or by the Board of Directors.
Section 8. SECRE The Secretary shall keep the
minutes of the meetings of the members and of the Board of
Directors in one or more books provided for that purpose; see
that all notices are duly given in accordance with the
provisions of these Bylaws or as required by law; be
custodian of the corporate records and of the seal of the
Corporation and see that the seal of the Corporation is
7
1
-4-
WP217102- 002/19
affixed to all documents, the execution of which on behalf of
the Corporation under its seal is duly authorized in
accordance with the provisions of these Bylaws; and in
general perform all duties incident to the office of
Secretary and such other duties as from time to time may be
assigned to him by the President or by the Board of Directors.
ARTICLE V
SEAL
The corporate seal of the Corporation shall be in the
Eorm of a circle and shall have inscribed thereon the words
"City of Pueblo, Colorado Municipal Building Corporation" and
the words "Corporate Seal."
ARTICLE VI
FISCAL YEAR
The fiscal year of the Corporation shall begin on the
first day of January of each year and shall end on the 31st
day of December of such year.
ARTICLE VII
AMENDMENTS
These Bylaws may be altered, amended or repealed by the
affirmative vote of a majority of the members of the Board of
Directors and the affirmative vote of the City Council of the
City of Pueblo, Colorado, a Colorado municipal corporation.
Notwithstanding the foregoing, these Bylaws may not be
altered, amended or repealed so as to be inconsistent with
the Articles of Incorporation, or with applicable law.
Secretary
WP217102 -002/19 _ 5
�_ h1U: �1U'- k.7a�ECCaiti!�.t�
' PU100 GOUNT C-OLCA
va K 2484 IVA 989 --�_
FEB 2 2 1q9p Document No.
RESOLUTION
CITY OF PUEBLO, O
COLORADO MUNICIPAL BUILDING CORPORATION
WHEREAS, the City of Pueblo, Colorado Municipal Building
Corporation (the "Corporation "), is incorporated as a nonprofit
corporation under the laws of the State of Colorado;
WHEREAS, the City of Pueblo, Colorado (the "City ") desires
the Corporation to acquire certain public works and
transportation facilities for the City (the "Project ") and to
finance the acquisition thereof;
WHEREAS, there has been presented to the Board of Directors
of the Corporation (the "Directors ") a proposed Public_ works
Lease Purchase Agreement, between the City and the Corporation,
to be dated February 22, 1990 (the "Lease ") and a Mortgage and
Indenture of Trust (the "Indenture ") between the Corporation and
The Pueblo Bank and Trust Company as Trustee (the "Trustee
WHEREAS, the Lease and the Indenture provide for the
acquisition of the Project by the Corporation, the Lease of the
Project to the City, and the financing of the Project through
the issuance of Certificates of Participation by the
Corporation;
WHEREAS, the Corporation is willingq to enter into the Lease
with the City and the Indenture with tl�e Trustee and to do all
other things necessary and appropriate to effectuate the
transactions provided therein;
NOW, THEREFORE, the Board of Directors of the City of
Pueblo, Colorado Municipal Building Corporation hereby resolves
as follows:
1. The Directors hereby authorize the acquisition of
title to the land identified and described in the Lease as the
Site (the "Site ") and the Lease and financing of the Project
upon the terms and provisions substantially as contained in the
forms of Lease and Indenture presented to this meeting,
such changes therein as are consistent with this Resolut n,
may be approved by the President of the Corporation, and the
President and Secretary of the Corporation are authorized and
directed to execute and deliver such Lease and the Indenture for
and on behalf of the Corporation.
2. The issuance and sale of the Certificates of
Participation in the principal amount of $565,000 dated February
22, 1990 (the "Certificates ") as provided in and pursuant to the
terms of the Indenture and payable from certain payments under
the Lease is hereby authorized and approved subject to the
following:
buK 2484 I'nl,t 900
a. the Certificates are authorized to be issued in
the maximum principal amount of $565,000;
b. the maximum number of years over which the
Certificates may mature shall be 6 years;
C. the Certificates shall bear interest to February
27, 1996, at an interest rate of 6% per annum; and
d. the Certificates shall be transferred at par to
The Weicker Investment Company in full consideration for
conveyance by The Weicker Investment Company of the Site to the
Corporation.
3. NO Pr of this Resolution, the Lease, the
Indenture or the Certificates, or the other documents described
herein, shall be construed as creating a general obligation or
other indebtedness of the City, nor as incurring or creating a
charge upon the general credit of the City or against its ad
valorem taxing powers; nor shall the breach of any provision
contained in any of the foregoing instruments impose any charge
upon the City's general credit or against its ad valorem taxing
powers; nor shall the Lease, the Indenture or the Certificates
or the other agreements, or any breach thereof, give rise to the
pecuniary liability of the City (except as therein described),
its agents, officers or employees. The City shall have no
obligation to pay out of its funds, revenues, or amounts or to
otherwise contribute any part of the cost of making any payment
with respect to the Certificates, except in connection with
payments required to be made under the Lease or except for funds
specifically pledged pursuant to the Lease, which Lease may be
terminated by the City in accordance with the provisions
thereof.
4. All proceedi of the
ngs, resolutions and actions
Corporation and its officers taken in connection with the sale
and issuance of the Certificates are hereby ratified, confirmed
and approved.
5. The officers of the Corporation are hereby authorized
and directed to enter into such agreements and take all action
necessary or appropriate to effectuate the provisions of this
Resolution and to comply with the requirement of law, including
without limiting the generality of the foregoing:
a. the execution and delivery of such closing
certificates as may reasonably be required by Berkowitz, Brady &
Backus, P.C., Denver, Colorado, Special Counsel
Corporation relating to to the
(i) the tenure and identity of the
Corporation officials; and (ii) if in accordance with the facts,
the absence of litigation, pending or threatened, affecting the
validity of the Certificates;
-2-
bw 2484 IPA 901
b. the payment of the interest and premium, if any,
on the Certificates herein authorized, as the same shall accrue,
and the principal of said Certificates at maturity or upon prior
redemption without further warrant or order.
6. It is hereby declared that all parts of this
Resolution are severable, and if any section, paragraph, clause
or provision of this Resolution shall, for any reason, be held
to be invalid or unenforceable, the invalidity or
unenforceability of any such section, paragraph, clause or
provision shall not affect the remaining provisions of this
Resolution.
7. All resolutions, orders and regulations or parts
thereof, heretofore adopted or passed which are in conflict with
any of the provisions of this Resolution are, to the extent of
such conflict, hereby repealed.
8. This Resolution shall take effect immediately.
ADOPTED AND APPROVED this o?7�-�' day of February , 1990.
ATTEST
Sec etary
( E A)
Press ent
-3-
BOCK 2484 PAIR 992
Document No.
CERTIFICATE AS TO CORPORATION RESOLUTION
The undersigned Secretary of City of Pueblo, Colorado
Municipal Building Corporation, a Colorado Nonprofit Corporation
(the "Corporation ") hereby certifies that attached hereto is a
Resolution of the Board of Directors of the Corporation, adopted
at a meeting of said Board of Directors held February 20, 1990,
and that since such date said Resolution has not been further
amended, repealed or modified.
IN WITNESS WHEREOF, I have hereunto set my hand and the
seal of the Corporation this 22nd day of February, 1990.
CITY OF PUEBLO, COLORADO MUNICIPAL
BUILDING CORPORATION
(SEAL) Secret ry
W! 4 11111F 11111111 l
MINUTES OF THE ORGANIZATIONAL MEETING
OF THE BOARD OF DIRECTORS
OF THE CITY OF PUEBLO, COLORADO
MUNICIPAL BUILDING CORPORATION
The first meeting of the Board of Directors of the City of
Pueblo, Colorado Municipal Building Corporation was held at #1
City Hall Place, Pueblo, Colorado on the 20th day of February,
1990.
The meeting was called to order by the President and the
Board of Directors did hereby take, ratify, confirm and approve
the following actions:
RESOLVED, that the Articles of Incorporation of the
corporation, filed as required by law on the 15th day of
February, are hereby ordered filed in the minute book preceding
these minutes.
RESOLVED, that the Bylaws attached hereto as Exhibit A, and
incorporated herein by reference, be, and they hereby are,
adopted as the Bylaws of this corporation.
RESOLVED, that the Secretary of the corporation, upon her
election, identify a copy of the Bylaws as having been approved
and file such copy in the minute book immediately following the
copy of the Articles of Incorporation.
RESOLVED, that the following persons be, and they hereby
are, elected to hold the offices set opposite their respective
names until the next annual meeting of the Board of Directors or
until their successors shall have been duly elected and shall
qualify:
President:
Vice - President:
Secretary:
Treasurer:
Lewis A. Quigley
John A. Califano
Fay B. Kastelic
Fay B. Kastelic
RESOLVED, that the Corporation proceed to carry on the
business for which it was incorporated.
RESOLVED, that the resolution attached hereto as Exhibit B
regarding the acquisition and financing of City public works and
transportation facilities for the City of Pueblo, Colorado, is
hereby approved.
There being no further business to come before the meeting,
upon motion duly made, seconded and unanimously carried, the
meeting was adjourned.
DATED this 20th day of February, 1990.
S retary
EXHIBIT C
CITY OF PUEB COLORADO MUNICIPAL BUILDING CORPORATION
CONSENT IN LIEU OF MEETING
OF THE BOARD OF DIRECTORS
The undersigned, being all of the members of the Board
of Directors of City of Pueblo, Colorado Municipal Building
Corporation, a Colorado nonprofit corporation, hereby consent
to the adoption of the following resolutions without a
meeting.
A RESOLUTION OF THE CITY OF PUEBLO, COLORADO
MUNICIPAL BUILDING CORPORATION AUTHORIZING THE
ISSUANCE OF CERTIFICATES OF PARTICIPATION IN
THE AGGREGATE PRINCIPAL AMOUNT OF $2,960,000;
AUTHORIZING THE EXECUTION AND DELIVERY OF SAID
CERTIFICATES, A PUBLIC WORKS LEASE PURCHASE
AGREEMENT WITH THE CITY OF PUEBLO, COLORADO, A
MORTGAGE AND INDENTURE OF TRUST WITH THE
PUEBLO BANK AND TRUST COMPANY, AS TRUSTEE; AND
AUTHORIZING CERTAIN OTHER TRANSACTIONS IN
CONNECTION THEREWITH.
WHEREAS, the City of Pueblo, Colorado (the "City ")
is a municipality and a political subdivision duly
organized and existing under and by virtue of the
Constitution and laws of the State of Colorado and the
home rule charter of the City; and
WHEREAS, the City has previously authorized and
directed the creation of the City of Pueblo, Colorado
Municipal Building Corporation (the "Corporation ") as a
nonprofit corporation under the Colorado Nonprofit
Corporation Act, articles 20 through 29, title 7,
Colorado Revised Statutes, as amended (the "Act "),
pursuant to the provisions of an ordinance duly and
regularly adopted by the City Council of the City; and
WHEREAS, under the Articles of Incorporation of the
Corporation (the "Articles ") the objects and purposes
for which the Corporation has been founded and
incorporated are:
(a) To acquire, improve or extend any
improvements, facilities, or properties and
appurtenances to them which the City is authorized
WP217102- 002/14
111 li
by law to acquire, including, but not limited to,
land, personal property, public buildings or other
structures of every nature or any joint or partial
interest in same, within or without the boundaries
of the City, and to finance the costs thereof on
behalf of the City, in order to accomplish the
public purposes of the City.
(b) To enter into leasing contracts with the
City whereby any such improvements, facilities,
properties and appurtenances are leased by the
Corporation to the City for use by the City.
(c) To borrow money and to become indebted
and to execute and deliver bonds, notes,
certificates, debentures or other evidence of
indebtedness, for the purpose of acquiring,
improving or extending any such improvements,
facilities, properties and appurtenances, and for
such other purpose or purposes as may be necessary
to accomplish the objectives of this Corporation.
Such indebtedness may be either unsecured or
secured by any mortgage, trust deed, security
agreement or other item upon the property to be
acquired.
(d) To conduct the business of the
Corporation in such manner so that ultimately at
the time that any such indebtedness of the
Corporation incurred as provided in (c) above is
paid in full, the title and ownership of said
improvements, facilities, properties and
appurtenances will be vested in the City.
(e) To exercise all powers, privileges and
rights necessary or advisable to carry out the
objects and purposes for which such Corporation is
formed, and the Directors hereby claim for this
Corporation all the benefits, privileges, rights
and powers created, extended or conferred by the
provisions of all applicable laws of the State of
Colorado, pertaining to corporations not for
profit, and any amendments thereto; and
WHEREAS, the Corporation is also possessed under
the Articles of all powers set forth in the Act, the
Constitution and other laws of the State of Colorado; and
WHEREAS, the Corporation will issue its City of
Pueblo, Colorado, Public Works Lease Purchase Agreement,
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WP217102- 002/14
Certificates of Participation, Series 1992 (the
"Certificates ") in the aggregate principal amount of
$2,960,000, and the proceeds thereof are to be used by
the Corporation for the purpose of refunding certain
outstanding certificates of participation issued in 1990
by the Corporation and the City, financing the
acquisition, construction and equipping of a public
works and transportation facility (the "Building ") on a
certain parcel of land (the "Land ") and the purchase of
certain equipment to be used in or on the Building or
the Land (the "Equipment "), funding a reserve fund for
the Certificates and paying the costs of issuing the
Certificates. The Building, the Land and the Equipment
are herein collectively referred to as the "Project "; and
WHEREAS, it is proposed that the Corporation and
the City will enter into a Public Works Lease Purchase
Agreement, dated as of July 1, 1992 (the "Lease "), g
pursuant to which the Corporation will lease the Project
to the City on an annual basis, subject to the City's
appropriation of moneys from the funds indicated in the
Lease; and -�
WHEREAS, the proposed forms of the Certificates,
the Lease, the Mortgage and Indenture of Trust, dated as
Of July 1, 1992 (the "Indenture "), by and between the
Corporation and The Pueblo Bank and Trust Company, as
trustee (the "Trustee "), the Certificate Purchase
Agreement, dated June 22, 1992 (the "Certificate
Purchase Agreement "), between the City and Norwest
Investment Services, Inc., as underwriter (the
"Underwriter "), and the Official Statement, dated
June 22, 1992 (the "Official Statement "), have been
presented to the members of the Board of Directors of
the Corporation; and
WHEREAS, the Board of Directors of the Corporation
is desirous of authorizing the issuance of the
Certificates, in substantially the form presented, and
the execution and delivery by the Corporation of the
Certificates, the Lease and the Indenture, all in
substantially the forms presented, is desirous of
approving the Certificate Purchase Agreement, and is
further desirous of authorizing and approving the
participation by the Corporation in such other
transactions as are contemplated hereby and thereby, all
in accordance with provisions of the Articles; and
WHEREAS, Article III, Section 7 of the Bylaws of
the Corporation (the "Bylaws ") provides that "[w]henever
WP 002/14 - 3
a vacancy shall occur in the membership of the Board of
Directors, or whenever the terms of office of any
Director shall cease, such vacancy or vacancies shall be
filled by a majority vote of the remaining members of
the Board of Directors "; and
WHEREAS, the Board of Directors of the Corporation
desires to amend said Section 7 of Article III of the
Bylaws to provide for the appointment of members of the
Board of Directors of the Corporation should all members
of the Board of Directors resign simultaneously; and
WHEREAS, the Board of Directors proposes to amend
such Section by the addition of the following language
at the end thereof:
If there shall, at any time, be no remaining
members of the Board of Directors to fill any
vacancy or vacancies in the membership of the
Board of Directors, new directors may be
appointed by the registered owners of a
majority in aggregate outstanding principal
amount of certificates of participation in any
lease revenues issued by or on behalf of the
Corporation, by an instrument or concurrent
instruments in writing signed by such
registered owners, or by their attorneys in
fact duly authorized, a copy of which shall be
delivered personally or sent by registered
mail to the trustee for such certificates and
to the City. In case of any such vacancies,
the trustee(s) for the majority in aggregate
outstanding principal amount of such
certificates of participation may appoint new
directors to fill such vacancies temporarily
until the registered owners shall appoint
directors as aforesaid; provided, however,
that if the registered owners have not
appointed new directors within three months of
the last resignation by a director, the right
of the registered owners to appoint new
directors shall be deemed waived and the
directors appointed by the trustee(s) shall be
the new directors of the Corporation.
and;
WHEREAS, the Corporation has received the
affirmative vote of the City Council approving such
amendment to the Bylaws.
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WP217102- 002/14
NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF
DIRECTORS OF THE CITY OF PUEBLO, COLORADO MUNICIPAL
BUILDING CORPORATION:
Section 1. All action (not inconsistent with the
provisions of this resolution) heretofore taken by the
Board of Directors of the Corporation and the officers
of the Corporation directed toward the financing of the
cost of the Project and the issuance and the sale of the
Certificates therefor be, and the same is, hereby
ratified, approved and confirmed.
Section 2. The Corporation shall finance the cost
of the Project from the proceeds of the Certificates in
accordance with the provisions of the Indenture and the
Lease.
Section 3. To defray the cost of the Project, and
to finance certain incidental expenses incurred in
issuing the Certificates, there is hereby authorized and
created an issue of lease purchase agreement
certificates of participation designated "City of
Pueblo, Colorado, Public Works Lease Purchase Agreement,
Certificates of Participation, Series 1992" in the
aggregate principal amount of $2,960,000, issuable as
fully registered certificates in the denominations of
$5,000 and any integral multiple thereof, dated as
provided in the Indenture, bearing interest payable
semiannually on each June 15 and December 15, commencing
June 15, 1993, at the rates and maturing on December 15
in the years and in the principal amounts, as follows:
Maturity Interest
Date Rate
LDecember 15_1 Amount P Annu
1993
$ 55,000
4.25%
1994
130,000
5.20
1995
140,000
5.50
1996
145,000
5.75
1997
60,000
6.00
1998
65,000
6.25
1999
70,000
6.50
2000
70,000
6.70
2001
75,000
6.90
2002
80,000
7,00
2003
85,000
7.10
2004
95,000
7.25
2005
100,000
7,25
WP 002/14 - 5 -
Maturity
$140,000
Interest
Date
2012
Rate
De ember 15�
Amount
Per Annum
2006
105,000
7,25
2007
115,000
7,25
2008
125,000
7,25
2009
135,000
7,25
2015
1,310,000
7,25
Bonds maturing on December 15, 2015 shall be
subject'to mandatory sinking fund redemption on
December 1, 2010 through and including December 15, 2014
in the following principal amounts at a price of par
plus accrued interest:
Year Principal
1-Decembe 1 51 A mount
2010
$140,000
2011
150,000
2012
165,000
2013
175,000
2014
190,000
2015 (Maturity)
490,000
The Certificates shall be payable, shall be subject
to redemption prior to maturity, and shall be in
substantially the form provided in the Indenture.
Pursuant to the Certificate Purchase Agreement, the
Certificates shall be sold to the Underwriter at a
private sale at a purchase price equal to par less an
underwriting discount of $66,600.00 and less an original
issue discount of $47,490.65, plus accrued interest from
July 1, 1992, to the date of their delivery.
Section 4. The forms, terms and provisions of the
Lease, the Indenture and the Certificate Purchase
Agreement are hereby approved, and the Corporation shall
enter into the Lease and the Indenture in substantially
the forms .of each of such documents presented to the
Board of Directors of the Corporation, with only such
changes therein as are not inconsistent herewith; and
the President of the Corporation is hereby authorized to
execute and deliver the Lease and the Indenture; and the
Secretary of the Corporation is hereby authorized to
attest the same.
Section 5. The distribution of the Official
Statement, in its preliminary and final form, by the
WP 002/14 - 6
Underwriter in connection with the offering of the
Certificates is hereby ratified and approved.
Section 6. The form, terms and provisions of the
Certificates, in the form contained in the Indenture,
hereby are approved, with only such changes therein as
are not inconsistent herewith; and the President of the
Corporation and the Secretary of the Corporation are
each hereby authorized to execute and attest,
respectively, the Certificates, either by manual or
facsimile signature, and each is authorized to deliver
the Certificates, and the seal of the Corporation or a
facsimile thereof is hereby authorized to be affixed to
the Certificates.
Section 7. In consideration of the purchase and
acceptance of the Certificates by those who shall own
the Certificates from time to time, the provisions of
this resolution shall be part of the contract of the
Corporation with the registered owners of the
Certificates, and shall be deemed to be and shall
constitute a contract between the Corporation and the
registered owners from time to time of the Certificates.
Section 8. The officers of the Corporation shall
take all action necessary or reasonably required by the
parties to the Indenture and the Lease to effectuate
their provisions and shall take all action necessary or
desirable to finance the cost of the Project from the
proceeds of the Certificates and for carrying out the
transactions contemplated by this resolution, and shall
execute and deliver any closing documents to be
delivered in connection with the sale and delivery of
the Certificates.
Section 9. The cost of the Project will be paid
solely out of the proceeds of the Certificates. Each
Certificate shall constitute a special, limited revenue
obligation payable solely from the Base Rentals (as
defined in the Lease), and all other moneys and
securities held under or realized pursuant to the
Indenture, to the extent provided therein, as, when and
if the same are received by the Trustee.
Section 10. After any of the Certificates are
issued, this resolution shall be and remain irrepealable
until all the Certificates and the interest thereon
shall have been fully paid, cancelled and discharged.
A
WP217102- 002/14 -7-
Section 11. The members of the Board hereby elect
to the Board of Directors of the Corporation and elect
as officers of the Corporation Billy G. Martin as
President, John A. Califano as Vice President, Fay B.
Kastelic as Treasurer Fay B. Kastelic as Secretary.
Section 12. The Corporation hereby amends
Article III, Section 7 of the Bylaws to read as follows:
Section 7. VACANCY. Whenever a vacancy shall
occur in the membership of the Board of
Directors, or whenever the terms of office of
any Director shall cease, such vacancy or
vacancies shall be filled by a majority vote
of the remaining members of the Board of
Directors. A Director elected to fill a
vacancy shall be elected for the unexpired
term of office so filled. If there shall, at
any time, be no remaining members of the Board
of Directors to fill any vacancy or vacancies
in the membership of the Board of Directors,
new directors may be appointed by the
registered owners of a majority in aggregate
outstanding principal amount of certificates
of participation in any lease revenues issued
by or on behalf of the Corporation, by an
instrument or concurrent instruments in
writing signed by such registered owners, or
by their attorneys in fact duly authorized, a
copy of which shall be delivered personally or
sent by registered mail to the trustee for
such certificates and to the City. In case of
any such vacancies, the trustee(s) for the
majority in aggregate outstanding principal
amount of such certificates of participation
may appoint new directors to fill such
vacancies temporarily until the registered
owners shall appoint directors as aforesaid;
provided, however, that if the registered
owners have not appointed new directors within
three months of the last resignation by a
director, the right of the registered owners
to appoint new directors shall be deemed
waived and the directors appointed by the
trustee(s) shall be the new directors of the
Corporation.
and;
.;,-
Section 13. f any section, paragraph, clause or
provision of this_esolution shall for!any reason be
WP217102- 002114 -8 _
held to be invalid or unenforceable, the invalidity or
unenf.orceability of such section, paragraph, clause or
Provision shall not affect any of the remaining
provisions of this resolution.
Section 14. All bylaws, orders and resolutions, or
Parts thereof, inconsistent herewith are hereby repealed
to the extent only of such inconsistency. This repealer
shall not be construed as reviving any bylaw, order or
resolution or part thereof.
Section 15. This resolution shall be in full force
and effect upon its passage and approval.
IN WITNESS WHEREOF, the Directors have signed this
Consent as of July 13, 1992.
J ,"n A. Califano
.-
Fay Kastelic
Billy G. M rtin
WP217102- 002114 -9-
CONSENT IN LIEU OF ANNUAL MEETING
OF THE BOARD OF DIRECTORS OF
CITY OF PUEBLO, COLORADO
MUNICIPAL BUILDING CORPORATION
The undersigned, being all of the members of the Board of Directors of City of Pueblo,
Colorado Municipal Building Corporation, a Colorado nonprofit corporation, hereby consent to
the taking of the following action without a meeting:
The following persons are hereby elected as officers of the Corporation to serve until
their successors are duly elected:
Name
Billy G. Martin
John A. Califano
Fay B. Kastelic
Office
President
Vice - President
Secretary - Treasurer
In witness whereof the Directors have signed this consent February 14, 1994.
f " il ,
Billy G. M n
1 /Y X�_a
o A. Califano
Fay B.1--'astelic