08-01-2000 First Amend to Lease Purchase & Sublease Agreement Finance AuthorityTOWN OF AVON FINANCE AUTHORITY,
AS LESSOR
and
TOWN OF AVON, COLORADO,
AS LESSEE
FIRST AMENDMENT TO LEASE PURCHASE
AND SUBLEASE AGREEMENT
Dated as of August 1, 2000
The interest of the Town of Avon Finance Authority in this First Amendment to
Lease Purchase and Sublease Agreement (with certain exceptions) has been assigned
to The Bank of Cherry Creek, N.A., as trustee under the Mortgage and Indenture of
Trust dated as of July 1, 1998 from the Town of Avon Finance Authority to The
Bank of Cherry Creek, N.A., as trustee, as amended by a First Supplement of date
even herewith, and is subject to the first lien and security interest of The Bank of
Cherry Creek, N.A., as trustee.
After this instrument has been recorded, please return to:
Dee P. Wisor, Esq.
Sherman & Howard L.L.C.
633 17th Street, Suite 3000
Denver, Colorado 80202
FIRST AMENDMENT TO LEASE PURCHASE
AND SUBLEASE AGREEMENT
TABLE OF CONTENTS
(This Table of Contents is not a part of this
First Amendment to Lease Purchase
and Sublease Agreement and is only
for convenience of reference)
Page
ARTICLE I
DEFINITIONS AND APPLICABILITY
Section 1.1. Definitions Generally ................ ............................... 3
Section 1.2. First Amendment Definitions ......... ............................... 3
Section 1.3. Amendments to Definitions in the Lease . ............................... 4
Section 1.4. First Amendment ................... ............................... 5
Section 1.5. Applicability of Lease ............... ............................... 5
ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES
Section 2.1. Representations, Covenants and Warranties of the Town ................... 6
Section 2.2. Representations, Covenants and Warranties of Lessor ..................... 6
ARTICLE III
DEMISING CLAUSE
Section 3.1. Demise of 2000 Project .............. ............................... 7
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ARTICLE IV
PROVISIONS OF THIS FIRST AMENDMENT
Section 4.1.
Commencement of Lease Term; Renewals and Termination ................ 8
Section4.2.
.................................. ..............................8
Section 4.3.
Title Insurance ..................... ............................... 8
Section 4.4.
Assignment and Subleasing by the Town ............................... 8
Section 4.5.
Restrictions on Mortgage or Sale of 2000 Project ......................... 8
Section 4.6.
Undertaking to Provide Ongoing Disclosure ............................. 9
Section 4.7.
Escrowed Deed .................... ............................... 9
ARTICLE V
OTHER AMENDMENTS TO THE LEASE
Section 5.1. Lessor, Town and Trustee Representatives .............................. 9
Section 5.2. Tax Covenant ....................... ..............................9
Section 5.3. Release and Conveyance of Portions of the Project . ....................... 9
Section 5.4. Events of Default Defined ........... ............................... 10
Section 5.5. Amendments to Exhibits ............ ............................... 10
ARTICLE VI
MISCELLANEOUS
Section 6.1. Binding Effect .................... ............................... 10
Section 6.2. Net Lease ........................ ............................... 10
Section 6.3. Severability ...................... ............................... 10
Section 6.4. Execution in Counterparts ........... ............................... 11
Section 6.5. Applicable Law ................... ............................... 1 I
Section 6.6. Captions ........................... .............................11
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FIRST AMENDMENT TO LEASE PURCHASE AND SUBLEASE AGREEMENT
FIRST AMENDMENT TO LEASE PURCHASE AND SUBLEASE AGREEMENT
dated as of August 1, 2000 (the "First Amendment ") which amends the Lease Purchase and Sublease
Agreement dated as of July. 1, 1 998 (the "1998 Lease ")(as hereby amended, the "Lease "), entered
into by and between" the TOWN OF AVON FINANCE AUTHORITY (the "Lessor "), as lessor
hereunder, a nonprofit corporation duly organized, existing and in good standing under the laws of
the State of Colorado, and THE TOWN OF AVON, COLORADO (the "Town "), as lessee
hereunder, a home rule municipal corporation duly organized under the Constitution of the State of
Colorado and the home rule charter of the Town;
WITNESSETH:
WHEREAS, the Town has been duly organized and is validly existing as a home rule
town under the Constitution of the State of Colorado and the home rule charter of the Town (the
"Charter "); 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 real
and personal property and to lease the same as lessor or as lessee and to act in the manner
contemplated herein; and
WHEREAS, the Town Council of the Town (the "Town Council ") has determined
it is in the best interests of the Town and its inhabitants that the Town acquire, construct, renovate
and equip 11 condominium units in the Sherwood Meadows Condominiums, as more particularly
described in Part II of Exhibit C hereto (collectively, the "2000 Project ") for the purpose of
providing affordable housing in the Town; and
WHEREAS, pursuant to Town Council authorization, the Town has previously
entered into negotiations to purchase the 2000 Project and in furtherance thereof has executed a
Residential Contract to Buy and Sell Real Estate dated as of March 15, 2000 (the "Condominium
Purchase Contract ") and has paid earnest money in connection therewith; and
WHEREAS, pursuant to Section 14.9 of the Charter, the Town is authorized to enter
into one or more leases or lease - purchase agreements for land, buildings, equipment and other
property for governmental or proprietary purposes; and
WHEREAS, the Town and Lessor have previously entered into a Lease Purchase and
Sublease Agreement dated as of July 1, 1998 (the "1998 Lease ") pursuant to which the Town is
currently leasing certain property more particularly described in Part I of Exhibit C hereto (the
"1 998 Project "); and
WHEREAS, the Town Council has determined and hereby determines that it is in the
best interests of the Town and its inhabitants that the Town assign to the Lessor the Town's rights
to acquire the 2000 Project under the Condominium Purchase Contract, enter into this First
Amendment and subsequently lease the 2000 Project from the Lessor pursuant to the terms of the
1998 Lease and this First Amendment (the 1998 Lease as hereby amended shall be referred to as "the
Lease "); and
WHEREAS, the obligation of the Town to pay Base Rentals and Additional Rentals
(both as defined in the Lease) hereunder shall be from year to year only; shall constitute currently
budgeted expenditures of the Town; shall not constitute a mandatory charge or requirement in any
ensuing budget year; and shall not constitute a general obligation or other indebtedness or multiple
fiscal year financial obligation of the Town within the meaning of any constitutional or Charter
limitation or requirement concerning the creation of indebtedness, nor a mandatory payment
obligation of the Town in any ensuing fiscal year beyond any fiscal year during which the Lease
shall be in effect; and
WHEREAS, the Lessor will assign all of its rights, title and interest in, to and under
the Lease, including this First Amendment (except the rights of the Lessor under Sections 13.3 and
14.6 of the Lease), and certain other rights and interests to The Bank of Cherry Creek, N.A. (the
"Trustee ") pursuant to that certain Mortgage and Indenture of Trust dated as of July 1, 1998 (the
"1998 Indenture "), as supplemented by the First Supplement to Mortgage and Indenture of Trust of
date even herewith (the "First Supplement ") (together, the "Indenture ") between the Lessor and the
Trustee; and
WHEREAS, there will be issued pursuant to the Indenture and First Supplement
Certificates of Participation, Series 2000 (the "2000 Certificates ") in the aggregate principal amount
of $2,345,000 evidencing assignments of proportionate undivided interests in rights to receive
certain payments under the Lease and this First Amendment; and
WHEREAS, the 2000 Certificates shall be issued as Additional Certificates under the
Indenture (as defined in the Indenture), shall evidence assignments of proportionate undivided
interests in rights to receive Revenues (as defined in the Lease), shall be payable solely from the
sources provided herein and in the Lease, and shall not constitute a general obligation or other
indebtedness or multiple fiscal year financial obligation of the Town within the meaning of any
constitutional or Charter limitation or requirement concerning the creation of indebtedness, nor a
mandatory charge or requirement against the Town in any ensuing fiscal year beyond the then
current fiscal year; and
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WHEREAS, neither the Lease (including this First Amendment) nor the issuance of
the 2000 Certificates shall directly or indirectly obligate the Town to make any payments beyond
those appropriated for any fiscal year during which the Lease shall be in effect; and
WHEREAS, the Town Council has adopted an ordinance authorizing and approving
the assignment to the Lessor of the Town's rights under the Condominium Purchase Contract, the
execution, delivery and performance by the Town of this First Amendment and certain actions to be
taken by the Lessor; and
WHEREAS, the Board of Directors of the Lessor has by resolution authorized,
approved and directed the execution, delivery and performance. by the Lessor of this First
Amendment, the First Supplement and certain other documents and has further authorized, approved
and directed the issuance of the 2000 Certificates for the purpose of providing funds to finance the
2000 Project; and
WHEREAS, the Lessor desires to lease the 2000 Project to the Town, and the Town
desires to lease the 2000 Project from the Lessor, pursuant to the terins and conditions of the 1998
Lease and hereof and for the purposes set forth herein.
NOW, THEREFORE, for and in consideration of the foregoing premises and the
mutual promises and covenants herein contained, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND APPLICABILITY
Section 1.1. Definitions Generally. Unless the context clearly indicates otherwise,
all words and phrases defined in Article I of the Lease and in the Indenture (including the First
Supplement) and shall have the same meanings herein, unless otherwise amended hereby.
Section 1.2. First Amendment Definitions. For all purposes of this First
Amendment and the First Supplement, Lease and Indenture, the following terms, except when the
context otherwise requires, shall have the meanings set forth below.
"Association" means the Sherwood Meadows Association, Inc. a Colorado nonprofit
corporation.
"Condominium Bylaws" means the Bylaws of the Association.
"Condominium Documents" means (i) the Declaration, (ii) the Condominimr Bylaws,
(iii) the Association's Rules and Regulations and (iv) other equivalent documents.
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"Condominium Purchase Contract" means that Residential Contract to Buy and Sell
Real Estate dated as of March 15, 2000 between the Town and John H. Laeri, Jr. pertaining to the
purchase of the 2000 Project.
"Declaration" means the Condominium Declaration for Sherwood Meadows, as it
may be supplemented and amended, and as recorded in the Office of the Clerk and Recorder of Eagle
County, Colorado.
"First Supplement" means that First Supplement to Mortgage and Indenture of Trust
dated as of August 1, 2000 between the Lessor and the Trustee, which supplements and amends the
1998 Indenture.
"1998 Indenture" means the Mortgage and Indenture of Trust dated as ofJuly 1, 1998
between the Lessor and the Trustee.
"1998 Lease" means the Lease and Sublease Agreement dated as of July 1, 1998
between the Town and the Lessor.
"1998 Project" means the project more particularly described in Part I of Exhibit C
hereto.
"2000 Certificates" means the Certificates of Participation, Series 2000, in the
aggregate principal amount of $2,345,000 issued pursuant to the First Supplement.
"2000 Project" means the project more particularly described in Part II of Exhibit C
hereto and as described in Part lI of Exhibit A.
Section 1.3. Amendments to Definitions in the Lease. The following terms as set
forth in Article I of the Lease are hereby amended to read as follows:
"Additional Rentals" shall be amended to include all assessments (whether monthly
or special) and all other amounts due from the owner of a condominium unit pursuant to the
Condominium Documents, including, but not limited to, provisions thereof requiring
indemnification of the Association.
"Base Rental Payment Date" means May 15 and November 15 of each year,
commencing November 15, 1998 in connection with the 1998 Project and November 15, 2000 in
connection with the 2000 Project.
"Code" means the Internal Revenue Code of 1986, as amended to the date of delivery
of the relevant series of Certificates.
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"Construction Period" means the period between the date on which the relevant series
of Certificates are first delivered to the respective purchasers thereof and the respective Completion
Date.
reads:
"Cost of Construction" shall be amended by the addition of a new paragraph 0) which
0) all costs in connection with the acquisition, construction, renovation and
equipping of the 2000 Project or any other contract in connection with the acquisition of
property, real or personal, to be included in the Project, and paid for with proceeds from the
sale of any Additional Certificates.
"Environmental Law" means the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. §§ 9601 et seq.; the Hazardous
Materials Transportation Act, 49 U.S.C. §§ 1804 et seq.; the Toxic Substances Control Act, 15
U.S.C. §§ 2601 et M.; the Resource Conservation and Recovery Act of 1976 (RCRA), as amended,
42 U.S.C. §§ 6901 et seg.; the Clean Water Act, 33 U.S.C. §§ 1251 et seMc .; the Clean Air Act, 42
U.S.C. §§ 7401 et sec .; the Colorado Hazardous Waste Act, C.R.S. § 25 -15 -101 et sec .; the Colorado
Radiation Control Act, C.R.S. § 25 -11 -101 et sue.; the Colorado Petroleum Storage Tanks Act,
C.R.S. § 8- 20.5 -101 et seg.; the Colorado Air Pollution Prevention and Control Act, C.R.S. § 25 -7-
101 et Seq.; the Colorado Water Quality Control Act, C.R.S. § 25 -8 -101 et seq.; any other federal
or state statutes or Town or county ordinances regulating the generation, storage, containment or
disposal of any Hazardous Material or providing for the protection, preservation or ei-diancement of
the natural enviromnent; any rules or regulations promulgated pursuant to any of the foregoing
statutes or ordinances; and any amendments, modifications or supplements of any such statutes,
ordinances, rules or regulations.
"Federal Tax Exemption Certificate" means the certificate of the Town concerning
compliance with the requirements of the Code in relation to the Town's covenants under Section 11.8
of this Lease and to be delivered at the time of delivery of this Lease or any amendment hereto, and
including any supplements and amendments thereto.
"Original Term" means the portion of the Lease Term which terminates on
December 31, 1998 in connection with the 1998 Project and on December 31, 2000 in connection
with the 2000 Project.
"Project" means the acquisition, construction, renovation, installation and equipping
of the projects generally described in Exhibit C to this Lease, as it may hereafter be amended, as the
Town deems necessary or desirable and as approved by the Lessor.
Clause (viii) of the definition of "Project Documents" is amended to read: (viii) any
and all other contracts and documents executed by or furnished to the Town in connection with the
construction, acquisition, renovation, installation and equipping of the Project.
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"Renewal Date" means each December 31 (or such other date as may be the final day
of the fiscal year of the Town) following the execution and delivery of this Lease.
Section 1.4. First Amendment. This First Amendment amends and supplements
the 1998 Lease and is entered into in accordance with the provisions of the 1998 Lease and the
Indenture.
Section 1.5. Applicability of Lease. Except as otherwise provided herein, the
provisions of the 1998 Lease, as amended hereby, govern the Project (which includes the 1998
Project and the 2000 Project) and the Certificates (which includes the 1998 Certificates and the 2000
Certificates).
ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES
Section 2.1. Representations, Covenants and Warranties of the Town. The Town
represents, covenants and warrants for the benefit of the Trustee, the Participants and the Lessor as
follows:
(a) Each of the Town's representations, covenants and warranties set forth in
Section 2.1 of the 1998 Lease, as amended by this First Amendment, remains true as of the
date hereof.
(b) The Town is authorized by its Charter to enter into the transactions
contemplated by this First Amendment and to carry out its obligations hereunder. The Town
has duly authorized and approved the execution and delivery of this First Amendment and
the other documents related to this transaction.
(c) The 2000 Project will be acquired, constructed, renovated and equipped
pursuant to the Lease and this First Amendment and will comply with all applicable building
and zoning ordinances and regulations, if any.
(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 Town is now a
party or by which the Town 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 Town.
(e) There is no litigation or proceeding pending or, to the knowledge of the
Town, threatened against the Town or any other Person affecting the right of the Town to
IRM
execute or deliver this First Amendment or the ability of the Town to make the payments
required hereunder or to otherwise comply with the obligations contained herein.
(f) The leasing of the 2000 Project, under the terms and conditions provided for
in the Lease and in this First Amendment, is necessary, convenient and in furtherance of the
Town's governmental purposes and is in the best interests of the citizens and irdiabitants of
the Town.
(g) The Town will perform all of the obligations of the unit owners under the
Condominium Documents.
Section 2.2. Representations, Covenants and Warranties of Lessor. The Lessor
represents, covenants and warrants for the benefit of the Town, the Trustee and the Participants as
follows:
(a) Each of the Lessor's representations, covenants and warranties set forth in
Sections 2.2 and 5.1 of the 1998 Lease, as amended by this First Amendment, remains true
as of the date hereof.
(b) The Lessor has all requisite power and authority to acquire the 2000 Project
and to enter into this First Amendment and the First Supplement, and by proper action has
duly authorized the execution and delivery of this First Amendment and the First
Supplement.
(c) Neither the execution and delivery hereof or of the First Supplement, nor the
fulfillment of or compliance with the terms and conditions hereof or thereof, nor the
consummation of the transactions contemplated hereby or thereby, conflicts with or results
in a breach of the terms, conditions or 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 and adverse effect on the
Lessor, the Project or the operation of the Project.
(d) The Lessor acknowledges and recognizes that the Lease, including this First
Amendment, will be terminated in the event that sufficient funds are not budgeted and
appropriated by the Town specifically with respect to the Lease, including this First
Amendment, 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 Town Council.
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(e) 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 First Amendment or the First Supplement, or to comply with its
obligations contained herein or therein.
(f) This First Amendment constitutes a legal, valid and binding obligation of the
Lessor, enforceable against the Lessor in accordance with its terms.
ARTICLE III
DEMISING CLAUSE
Section 3.1. Demise of 2000 Project. The Lessor demises and leases the 2000 Project to
the Town, and the Town leases the 2000 Project from the Lessor, in accordance with the provisions
of the Lease, as amended by the First Amendment, subject only to Permitted Encumbrances, to have
and to hold for the Lease Term.
ARTICLE IV
PROVISIONS OF THIS FIRST AMENDMENT
Section 4.1. Commencement of Lease Term, Renewals and Termination. The Lease Term
for the 2000 Project shall commence as of August 1, 2000. The Original Term for the 2000 Project
shall terminate on December 31, 2000. The Lease Term shall be governed by, and renewed and /or
terminated as provided in, Article IV of the Lease.
Section 4.2. The 2000 Project. Notwithstanding any other provision of Article VII of the
Lease, the 2000 Project shall be acquired by the Lessor on the date of execution and delivery of this
First Amendment, which shall be the Completion Date for all purposes of the Lease with respect to
the 2000 Project. The provisions of Sections 7.3, 7.4, 7.5, 7.7, 7.8, 7.9, 7.10, 7.11, and 7.12 of the
1998 Lease shall not apply to the 2000 Project.
Section 4.3. Title Insurance. Concurrently with the execution and delivery of this Lease,
the Trustee shall be provided with one or more commitments for one or more standard mortgagee's
title insurance policies issued to the Trustee, insuring the Lessor's fee simple title to the 2000 Project,
[subject only to the Permitted Encumbrances], in an aggregate amount not less than the aggregate
principal amount of the 2000 Certificates or such lesser amount as shall be the maximum insurable
value of the 2000 Project.
Section 4.4. Subleasing by the Town. The 2000 Project may be subleased, as a whole or
in part, by the Town to Persons who are qualified pursuant to the Town's Employee Housing Rules
and Regulations dated September 1999 and attached hereto as Exhibit F without the necessity of
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obtaining the consent of the Lessor, the Trustee, the Certificate Insurer or any Participants, but
subject to the conditions set forth in Section 13.2(b), (c), (d) and (e) of the 1998 Lease.
Section 4.5. Restrictions on Mortgage or Sale of 2000 Project. The Town and the Lessor
agree that neither the Lessor nor the Town will mortgage, sell, assign, transfer or convey the 2000
Project or any portion thereof during the Lease Term except for: (i) the Lessor's assignment of the
Lease, including this First Amendment, and mortgaging of the Project to the Trustee pursuant to the
Indenture, including the First Supplement; (ii) any exercise by the Trustee or the Lessor of the
remedies afforded by the Lease; (iii) the right of the Trustee to replace the Lessor pursuant to Section
13.1 of the Lease and any conveyances required by reason of such replacement; (iv) the Town's right
to sublease all or a portion of the 2000 Project pursuant to Section 13.2 of the Lease and Section 4.4
of this First Amendment; (v) any granting of easements pursuant to Section 11.4 of the Lease; (vi)
any conveyance to the Town pursuant to Article XII of the Lease; (vii) any substitutions, additions,
modifications and improvements of the 2000 Project pursuant to Section 9.2 of the Lease; (viii) any
removal, substitution, sale or other disposition of Equipment pursuant to Section 9.3 of the Lease;
and (ix) the release and conveyance of portions of the Project pursuant to Section 12.4 of the Lease.
Section 4.6. Provisions Regarding Casualty Public Liability and Property Damage
Insurance. So long as the Association maintains casualty and property damage insurance on the
condominium project as required by the Declaration (including specifically, but not limited to,
Declaration 20) and which is satisfactory to the Trustee, then the Town's obligation under Section
9.5 of the Lease to maintain such insurance coverage on the 2000 Project is deemed satisfied.
The Town shall give notice to the Association and request that the Trustee and MBIA
Insurance Corporation be listed as 'additional insureds' on the Association's policy and that both
receive prompt notice of any lapse in the required insurance coverage provided by the Association's
policy.
Upon the execution and delivery of this First Amendment, the Town shall, at its own
expense, cause public liability insurance to be maintained with respect to the activities to be
undertaken in comnection with the use of any "individual air space unit" (as defined in the
Declaration and Condominium Bylaws) owned by the Lessor and leased to the Town pursuant to the
terms hereof.
Section 4.7. Damage, Destruction and Condemnation; Use of Net Proceeds. The terms
of Article X of the 1998 Lease shall apply to the 2000 Project; provided, however, in the event of
a conflict between the provisions of Article X of the 1998 Lease and the provisions of the
Declaration regarding damage to or the destruction of the condominium property and the use of
insurance or condemnation proceeds, including specifically, but not limited to Declarations 25 and
33, the provisions of the Declaration shall control.
Section 4.8. Undertaking to Provide Ongoing Disclosure. The Town shall comply with
the provisions of the Continuing Disclosure Certificate executed by the Town in connection with the
M
execution and delivery of this First Amendment. Any failure by the Town to perform in accordance
with this Section shall not constitute an "Event of Default" under the Lease, and the rights and
remcdies provided by the Lease upon the occurrence of an "Event of Default" shat I not apply to any
such failure. Neither the Lessor nor the Trustee shall have any power or duty to enforce this Section.
Unless otherwise required by law, no registered owner of a 2000 Certificate shall be entitled to
damages for the Town's non - compliance with its obligations under this Section 4.8; however, the
registered owners of the 2000 Certificates may enforce specific performance of the obligations
contained in this Section by any judicial proceeding available.
Section 4.9. Escrowed Deed(s). In order to facilitate the Town's enforcement of the
Lessor's obligation to convey the 2000 Project to the Town under the circumstances provided in
Section 12.1 and Section 12.4 of the Lease, the Lessor shall deposit in escrow with the Trustee,
concurrently with the delivery of the 2000 Certificates, a deed or deeds to the 2000 Project
satisfactory to the Town. The Trustee shall, upon (i) payment of the Purchase Option Price and
discharge of the Indenture as provided in Article VI of the Indenture; (ii) payment of all Base Rentals
and all then current Additional Rentals; (iii) upon discharge of the Indenture as provided in Section
12.1(c) of the Lease; or (iv) satisfaction of the conditions for the release of portions of the Project
as provided in Section 12.4 of the Lease, date and release such deed or deeds to the Town for
recording. In the event of any change in the description of the Project pursuant to the Lease, the
Lessor shall promptly cooperate with the Town and the Trustee in appropriately modifying, re-
executing and redelivering such deed or deeds.
Section 4.10. Bank Qualification. The Town hereby designates this First Amendment as
a Qualified Tax - Exempt Obligation for purposes of Section 265(b)(3)(B) of the Code.
ARTICLE V
OTHER AMENDMENTS TO THE LEASE
Section 5.1. Commencement of Lease Tenn; Renewals. The first paragraph of Section 4.1
of the Lease is hereby amended to replace the beginning and ending dates of the final Renewal Term
with January 1, 2020 and December 31, 2020, respectively.
Section 5.2. Termination of Lease Term. Section 4.2(e) of the Lease is hereby amended
to replace "December 31, 2020" for "December 31, 2018."
Section 5.3. Lessor, Town and Trustee Representatives. The last eight words of Section
11.3 of the Lease are hereby amended to read: "to act on any such approval or request."
Section 5.4. Tax Covenant. The first paragraph of Section 11.8 of the Lease is hereby
amended to delete "1998" each time it appears immediately before the word "Certificates."
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Section 5.5. Release and Conveyance of Portions of the Project. Article XII of the Lease
is hereby amended by the addition of a new section therein which shall read as follows:
Section 12.4. Release and Conveyance of Portions of the Project. When the principal
component of Base Rentals paid by the Town, plus the principal amount of any Certificates
redeemed through optional redemption, or the total principal amount of Certificates paid or deemed
to be paid pursuant to Article VI of the Indenture, equals the amount set forth in Exhibit E hereto,
the cost of the corresponding portion of the Project set forth in Exhibit E (or of any property
substituted for such portion of the Project pursuant to any provision of this Lease) shall be deemed
to have been fully amortized, and the Lessor and the Trustee shall release such portion of the Project
(or any property substituted for such portion of the Project pursuant to any provision of this Lease),
provided, however, that the fair value of the remaining portions of the Project must be at least equal
to 100% of the aggregate principal amount of the Certificates then Outstanding, as certified to by
the Town Representative. The Lessor and the Trustee shall execute and deliver to the Town all
documents necessary or appropriate to convey such portion of the Project to the Town (including,
without limitation, the release of appropriate escrowed deeds pursuant to this Lease) free of all
restrictions and encu nbrances imposed or created by this Lease or the Indenture, in substantially the
manner provided in Section 12.3 hereof After such release and conveyance, the property so released
and conveyed shall no longer be a part of the Project for any purpose of this Lease or the Indenture.
The Lessor and the Trustee shall fully cooperate with the Town in executing, delivering and
recording such documents as may be necessary to effectuate the provisions of this Section.
Section 5.6. Events of Default Defined. Section 14.1(c) of the Lease is hereby amended
to add immediately after the words "in Section 11.9 hereof' the words "or Section 4.8 of the First
Amendment or other comparable sections in other amendments hereto."
Section 5.7. Amendments to Exhibits. Exhibits A, B, C and D of the Lease are hereby
amended and replaced by Exhibits A, B, C and D hereto, respectively, and new Exhibits E and F
to the Lease are added as shown in Exhibit E and Exhibit F hereto.
ARTICLE VI
MISCELLANEOUS
Section 6.1. Bindiniz Effect. This First Amendment shall inure to the benefit of and shall
be binding upon the Lessor and the Town and their respective successors and assigns, subject,
however, to the limitations contained in Article XIII of the Lease and Sections 4.5 and 4.6 of this
First Amendment.
Section 6.2. Net Lease. The Lease, including this First Amendment, shall be deemed and
construed to be a "net lease," and the Town shall pay absolutely net during the Lease Term, the Base
Rentals, Additional Rentals and all other payments required hereunder, free of any deductions, and
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without abatement, deduction or setoff (other than credits against Base Rentals expressly provided
for in the Lease).
Section 6.3. Severability. In the event that any provision of the Lease, including this First
Amendment, other than the requirement of the Town to pay Base Rentals and the requirement of the
Lessor to provide quiet enjoyment of the 2000 Project and to convey the 2000 Project to the Town
under the conditions set forth in Article XII of the 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 6.4. Execution in Counterparts. This First Amendment 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.
Section 6.5. Applicable Law. This First Amendment shall be governed by and construed
in accordance with the laws of the State.
Section 6.6. 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 the Lease or this
First Amendment.
-12-
IN WITNESS WHEREOF, the Lessor has caused this First Amendment to be executed in
its corporate name with its corporate seal hereunto affixed and attested by its duly authorized officers
and the Town has caused this First Amendment to be executed in its name with its seal hereunto
affixed and attested by duly authorized officials, all as of the date first above written.
[SEAL]
Attest:
Malm
TOM
Secretary
r qf AV yr
[S� �.
LM
Town Clerk
-13-
TOWN OF AVON FINANCE AUTHORITY,
as lessor
By
resident
TOWN OF AVON, COLORADO,
as lessee
"'Ir
,. _ .
STATE OF COLORADO )
ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this � day of jm-a+ 32000
by Terry Halverson and by Scott Wright, as President and Secretary, r pect[vely, of the
Town of Avon Finance Authority, a Colorado nonprofit corporation.
WITNESS my hand and official seal.
[SEAL j
Notary Public for the State of Colorado
My commission expires: My Commission Expires 08/09/2003
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this,4day of IZA4 '2000
by Judy Yoder and by Kristen Nash, as Mayor and Town Clerk, respectively, of t6t To n of Avon,
Colorado, a Colorado municipal corporation.
WITNESS my hand and official seal.
[SEAL]
My commission expires:
Notary Public for the State of Colorado
My 0immission Expires 08 /09 /2tjl:i
HE
PART I:
EXHIBIT A TO FIRST AMENDMENT
DESCRIPTION OF THE SITE
Lot 1B, a resubdivision of Lot 1, Swift Gulch Addition, according to the Plat recorded July 22, 1998
at Reception No. 663529, County of Eagle, State of Colorado.
PART I1:
LEGAL DESCRIPTION OF 2000 PROJECT
Parcel 1:
Units 1 -A, 1 -C, 1 -D, 2 -B, 2 -C, 2 -E and 2 -125, Sherwood Meadows, Phase 1,
according to the Condominium ?slap recorded January 24, 1980 in Book 297 at Page
857 and as defined and described in Condominium Declaration recorded February
13, 1980 in Book 298 at page 730 and Supplement recorded December 16, 1980 in
Book 314 at Page 825,
County of Eagle,
State of Colorado.
Parcel 2:
Units' 3 -A, 3 -B, 4 -13 and 4 -D, Sherwood Meadows, Phase II, according to the
Condominium Map recorded December 16, 1980 in Book 314 at Page 827 and as
defined and described in Condominium Declaration recorded February 13, 1980 it
Book 298 at Page 730 and supplement recorded December 16,
Page 825, 1980 in Book 314 at
County of Eagle ,
state of Colorado.
A -1
EXHIBIT B TO FIRST AMENDMENT
EXHIBIT B TO LEASE
SCHEDULE OF BASE RENTALS
Series 1"o cw lkat- Series 2000 Cerfdita Total
Payment Payment A"n"W
r,._.., Tnfar pviwjow knee`s Tout/ AAlotMl: Total
11/01
240,000
161,785
401,785
41,208
41208
442,993
442,993
05101 /01
156,865
156,865
61,811
61,811
218,676
11/01/01
245,000
156,b65
401,865
1
70,000
61,811
131,811
533,676
752.353
05/01102
151,781
151,781
60,254
60,254
212,035
11/01102
250,000
151,781
401,781
75,000
60.254
135,254
537,035
749,070
05/01/03
146,469
146,469
58,510
58,510
204,979
11/0110
270,000
146,469
416,469
75.000
58,510
133,510
549,979
754,958
05/01/04
140,664
140,664
56,729
56,729
197.393
11/01
275,000
140,664
415,664
80.000
56,729
136,729
552,393
749,785
05/01/05
134,751
134,751
54,829
54.829
189,560
11/01
290,000
134,751
424,751
85,000
54,829
139,829
564,580
754,160
05/01/00
128,444
128.444
52,789
52,789
181,233
11/01/06
305,000
128,444
433,444
90.000
52,789
142,789
576.233
757,465
05/01/07
121,734
121,734
50,629
50,629
172.362
11/01107
315,000
121,T34
436,734
100,000
50,629
150,629
587,363
759,725
05101/
114,646
114,646
48,179
48,179
162,825
11/01/08
330,000
114,646
444,646
100,000
48,179
148,179
592,825
755,650
05/01/09
107,221
107,221
45,679
45,679
152,900
11/01109
345,000
107,221
452X21
100,000
45,679
145,679
597,900
750,800
05mi /10
99,200
99,200
43,179
43,179
142,379
11/01/10
380,000
99,200
459,200
110,000
43,179
153,179
612,379
754,758
05 101/11
90,560
90,580
40,429
40.429
130.989
11/01/11
380,000
90,560
470,560
115,000
40,429
155,429
625,989
756,978
05/01/12
81,250
81,250
37,496
37,496
198,746
11101112
400,000
81,250
481,250
125,000
37,496
162,496
643,746
762,493
05/01/13
71,250
71,250
34,246
34,246
105,496
11/01/13
420,000
71.250
491,250
125,000
34.246
159,246
65,496
755,993
05/01/14
60,750
60,750
30,934
30,934
91,684
11101/14
440,000
60,750
500.750
130.000
30.934
160.934
661,8&!
753,368
05/01/15
49,750
49,750
27,261
27,261
77,011
11/01/15
480,000
49,750
509,750
140,000
27,261
167,261
677,011
754,023
05/01/16
38,250
38,250
73.306
23,306
61,556
11/01116
485.000
38.250
523,250
145,000
23,308
168.306
691.556
753,113
05/01/17
26,125
26,125
19.210
19,210
45,335
11/01/17,
510,000
26,125
536,125
155,000
19,210
174,210
710,335
755,670
05101/1
13,375
13,375
14,831
14,831
28.206
11101/1
535,000
13,375
548,375
165,000
14,831
179,831
728,206
756,413
05101/19
10,170
10,170
10,170
11101119
175,000
10,170
185,170
185,170
195,340
05M1120
5.226
5,226
5.226
11 /0120
185,000
5,226
190,226
190226
195.453
-TOW
16.855.000
3,627,955
10,482,955
1 2,345,000
1,592,600
3,937,600
1 14,420,555
14,420,555
PART I:
EXHIBIT C TO FIRST AMENDMENT
EXHIBIT C TO LEASE
DESCRIPTION OF THE PROJECT
PUBLIC WORKS MAINTENANCE FACILITY
AVON,COLORADO
The 1998 Project will consist of approximately 4,750 square feet of administration
space; and approximately 19,500 square feet of vehicle maintenance space.
PART II:
The 2000 Project will consist of Units IA, 1C, 1D, 213, 2C, 2E, 2F, 3A, 3B, 4B and
4D Sherwood Meadows, according to the filed and recorded Maps and Declaration.
C -1
EXHIBIT D TO FIRST AMENDMENT
EXHIBIT D TO LEASE
SCHEDULE OF CERTAIN PERMITTED ENCUMBRANCES
PART I:
Taxes and Assessments not certified to the Treasurer's Office.
Any facts, rights, interests' or claims which are not shown by the public records
but which could be ascertained by an in,'spection of the land or by making inquiry
of persons in possession thereof.
Easements, or claims of easements, not shown by public records.
Discrepancies, conflicts in boundary 11nes, shortage in area, encroachments, and
any facts which a correct survey and tixtspection of the land would disclose, and
which are not shown by the public records.
I•
Any lien, or right to a lien, for sezv�ces, labor or material heretofore or
hereafter furnished, intnosed by law and not shown by the public records.
Taxes and assessments for the current year, including all taxes now or
heretofore assessed, due or payable.:
Any existing leases or tenancies.
Any water rights or claims or title td water 4 n, on or under the land.
l'
The following exceptions apply to Patrcel One Only:
Right of way for ditches or canals eoastructed by the authority of the United
States as reserved in United States�pitent recorded March 25, 1994, in Book
633 at Page 501.
i'
Terms, conditions, provisions and o8l�gations of Restated Subdivision
Improvements Agreement recorded May,28, 1994 in Book 610 at Page 129,
Supplement thereto recorded February 1G, 1994 in Book 632 at Page 644 and
Addendum to Supplement recorded May,�4:, 1994 in Book 639 at Page 488.
Easements, notes, reservations and rgstrictions as shown or reserved on the
Plat of Second Amendment Mountain St4r Filing No. 2 recorded July 7, 1995 in
Book 670 at Page 989.
Covenants, conditions and restrictions, which do not include a forfeiture or
reverter clause, set forth in the 34'4 trument recorded November 22, 1993 in
Book 625 at Page 456 and assignment) Of General Easement in connection
therewith recorded November 3, 1994 kn Book 654 at Page 119 and First
Supplemental Declaration of Annexatsipn for Mountain Star recorded February 9,
1995 in Hook 661 at Page 103 and S6cbnd Supplemental Declaration of Annexation
for Mountain Star recorded February 28, 1995 in Book 662 at Page 226, Third
D-1
Supplement recorded April 14, 1995 ih Book 665 at Page 243, Fourth Supplement
recorded June 16, 1995 in Book 669 at Page S58 and Fifth Supplement recorded
June 16, 1995 in Book 669 at Page 557, Provisions regarding race, color,
creed, and national origin, if any, !are deleted.
The apparent lack of access to and Erom the subject property via a public
street, road or highway, or via a privately granted easement; the effect of
the apparent lack of access upon the marketability of the title to the land.
The following exceptions apply to Parcels Two and Three:
The right of proprietor of a vein or lode to extract or remove his ore should
the same be found to penetrate or intersect the premises thereby granted as
reserved in United States patent recorded August 31, 1896 in Book 48 at Page
208; and any and all assignments thszeof or interest therein.
Terms, conditions and provisions as contained in ordinance No. 85 -17, Series
of 1985, recorded October 15, 1985 in Book 427 at Page 430.
Any assessment or lien of the Town, of Avon, Local I..mprovement Diztr '-ct No.
1990 -1, as disclosed by the instramer.t recorded September 12, 1990 in Book 537
at Page 433.
Terms. conditions and provisions as :contained in Resolution No. 84 -5, Series
of 1984, recorded February 21, 19814 in Book 378 at Page 920 and re- recorded
March 15, 1984 in Book 380 at Page 8_5.
An easement for Underground right cf way and incidental purposes granted to
Holy Cross F_ectric Assoc:.at :on, :no . .: by the instrument recorded January 12,
1996 in Book 685 at Page 819.
Easements. reservations and restrictions as shown on the plats recorded March
31, 1997 in Book 722 at Page 337 and July 22, 1998 at Reception No. 6635-29.
PART II:
Taxes and Assessments not certified to the Treasurer's Office.
Any facts, rights, interests or claims which are not shown 'hy th? public rouorde
but which could be ascertained by an inspection of the land or by making inquiry
of persons in possession thereof.
Easements, or claims of easements, not shown by public records.
Discrepancies, conflicts in boundary lines, shortage in area, encroachments, and
any facts which a correct survey and inspection of the land would disclose, and
which are not shown by the public records.
Any lien, or right to a lien, for services, labor or material heretofore or
hereafter furnished, imposed by law and not shown by the public records.
Any and all unpaid taxes, assessments and unredeemed tax sales.
D -2
The right of proprietor of a vein or lode to extract or remove his ore should
the same be found to penetrate or intersect the premises thereby granted as
reserved in United States patent recorded September 26, 1941 in Book 128 at
Page 123; and any and all assignments thereof or interest therein.
Right of way for ditches or canals constructed by the authority of the United
States as reserved in United States Patent recorded September 26, 1941 in Book
128 at Page 123_
Terms, conditions, obligations and easements or rights of way stipulations as
shown on plats recorded respectively: February 27, 1974 in Book 233 at Page
566; and December 26, 1974 in Book 238 at Page 41; and August 11, 1976 in Book
247 at page 989; and as amended October 1, 1976 in Book 249 at Page 93 and as
amended in the plat filed September 5, 1976 in Book 274 at Page 701.
Covenants, conditions and restrictions, which do not include a forfeiture or
reverter clause, set forth in the instrument recorded April 7, 1975 in book
239 at Page 249. Amendment of said covenants, conditions and restrictions by
an instrument recorded July 19, 1979 in Book 288 at Page 567; April 23, 1985 in
Book 411 at Page 960 and February 7, 1990 in Book 522 at Page 721. Provisions
regarding race, color, creed, and national origin, if any, are deleted.
Easements, conditions, restrictions and reservations as shown or reserved on
the recorded Maps of Sherwood Meadows, Phase One, recorded January 24, 1990 in
Book 297 at Page 857 and Sherwood Meadows, Phase Two, recorded December 16,
1980 in Book 314 at Page 827.
Covenants, conditions, restrictions, reservations and lien rights, which do
not include a forfeiture or reverter clause, set forth in the Declaration,
recorded February 13, 1980 in book 298 at Page 730, Amendment recorded
December 16, 1980 in Book 314 at Page 825.
Easements for public utilities, sewer purposes, drainage and other incidental
purposes as shnwn nn the map of said condominium and ao reserved in or creaLt:?
by various instruments of record affecting only the common elements.
D -3
EXHIBIT E TO FIRST AMENDMENT
EXHIBIT E TO LEASE
RELEASE AND AMORTIZATION SCHEDULE
TOTAL AMOUNTS OF BASE RENTALS,
PRINCIPAL PAYMENTS AND OPTIONAL
PRIOR REDEMPTIONS WHICH MUST BE
MADE, OR OF CERTIFICATES WHICH
MUST BE PAID OR DEFEASED TO
PORTION OF THE PROJECT RELEASE'
(Attached)
'Pursuant to Section 12.4 of this Lease, when the principal component of Base
Rentals paid by the Town, plus the principal amount of any Certificates redeemed through
optional redemption, or the total principal amount of any Certificates paid or deemed to be paid,
totals the amount set forth in this column, the corresponding portion of the Project will be
deemed fully amortized and shall be released, provided, however, that the fair value of the
remaining portions of the Project must be at least equal to 100% of the aggregate principal
amount of the Certificates then Outstanding.
E -1
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E -2
EXHIBIT F TO FIRST AMENDMENT
EXHIBIT F TO LEASE
HOUSING REGULATIONS
TOWN OF AVON
EMPLOYEE HOUSING
RULES AND REGULATIONS
September 1999
TO OUR NEW EMPLOYEE HOUSING RESIDENTS:
Welcome to the Town of Avon Employee Housing at Eaglebend Apartments! The Town
of Avon attained the employee housing with affordability, availability, comfort and
convenience in mind. We are pleased that you have chosen to make our employee
housing your new home. ,
Please take the time to review and familiarize yourself with the rules and regulations
outlined in this booklet. As a general rule, if a resident's actions are based on respect for
others and respect for the property and environment, those actions will not only be
acceptable but encouraged. We want you to treat this housing the same way you would if
you owned it.
PAYROLL DEDUCTIONS ? ??
Contact the Town of Avon Human Resources Department with any questions regarding
your payroll deductions, including insufficient hours to cover your rent payment. Good
communication on your part will eliminate a lot of headache with the TOA Finance
Department and will allow everyone to be paid on time!
WHO DO I CALL?
Phone No.: 748 -4093 (Stacy Mays)
Office Location: 400 Benchmark Road
Next to Nottingham Lake
CRITERIA FOR HOUSING ELIGIBILITY (Listed in order of priority *)
1. Seasonal employee working 40 hours or more per week.
2. Full -time Critical Services Employee (ranked equally)
• Firefighters
• Police Officers
• Plow Operators
3. Full -time Essential Services Employee (ranked equally)
• Transit Employees
• Public Works Employees
• Mechanic
• Full -time Bus Driver
4. Full -time "in Transition: Employee (new hires and transition of existing
employees)
5. All Other Full -time Employees
6. Other Public Agencies
7. Construction Crews on TOA Projects
8. Interns
9. Others as deemed necessary or appropriate by Town of Avon
*Criteria and priority are subject to change at the sole discretion of the Town of Avon.
2
ALLOCATION OF UNITS
In the future, it may become necessary to allocate units to each department.
LEASE PERIODS
Maximum of six month renewable leases.
RENTAL RATES /DEPOSITS/UTILITIES /# OF OCCUPANTS /FURNISIIINGS
Rental Rates (winter /summer)
(2) peoplAedroom maximum/includes cost of furnishings
• $ Two Bedroom (double occupancy)
• $ Three Bedroom (double occupancy)
One of the occupants must be employed full -time by the Town of Avon (must
work minimum 40 hours /week) throughout the term of the lease.
The Town of Avon employee to whom the room is rented will be the sole
responsible party on the lease and for payment of total rent (whether single or
double occupancy). Rent will be deducted every two weeks from the TOA
employee's check. If there are insufficient hours on employee's check to cover
the rent payment, the balance due will be paid by Tenant in full via check or
money order upon demand of Landlord (TOA).
2. Damage /Security Deposit + Last Month Rent
Move -in costs as follows (rate will be increased by $100 if two people are sharing
a room):
• Two Bedroom $
• Three Bedroom $
Damage /Security deposit and last month rent must be paid in full to the
Town of Avon by the Town of Avon employee (cash /check) upon signing
lease. No payroll deductions will be allowed on either.
If the Tenant violates or fails to perform any tenn, condition or covenant of
the lease, including failure to clean the premise before surrendering the
premise to the Landlord, the Landlord shall have the right to use the damage
deposit or so much of it as is necessary, for the payment of any rentals due or
to reimburse the Landlord for any expenses, damages or costs incurred by the
Landlord as a result of the Tenant's act or failure to act.
• If, during the term of the lease, any portion of the damage deposit is utilized
by the Landlord pursuant to the rights granted in the lease, the Tenant, upon
Kj
written notice from the Landlord, agrees to immediately remit to the Landlord
an amount sufficient to restore the damage deposit to its original amount.
• If some or all of the damage deposit is not used by the Landlord, the
remainder shall be refunded to the Tenant within (60) days of the termination
of the lease. No interest will be paid to the Tenant on the damage deposit.
_ . • _ The Tenant agrees that in the event that the Tenant abandons the premises, the
Landlord will retain all of the damage deposit and last month rent.
• Property Manager will automatically deduct fifty dollars ($50.00) from the
damage deposit for carpet cleaning.
2. The following utilities are included in the rent:
• Gas
• Electric
• Water /Sewer /Trash
• Basic Cable Service
Tenant will be responsible for phone service and any cable service beyond Basic.
Do not use utilities in a wasteful, unreasonable, or hazardous manner. No wires,
aerials for radio or television, or satellite dishes shall be installed on any part of
the structure.
3. All units will be furnished with the following:
In each room
1 full size mattress
1 full size box spring
1 full size bed frame
1 night stand
1 chest of drawers
Items not furnished in unit:
Bedding
Towels
Utensils
Flatware
Dinnerware
In each apartment
1 couch
1 love seat
2 table lamps
1 coffee table and 2 end tables
1 dining table and 3 chairs
I microwave
Television
Personal Hygiene (i.e. toilet tissue)
Vacuum
Shower Curtain
The Tenant may use furnishings in the unit which shall remain the sole and separate
property of the Tenant. The Tenant shall remove those furnishings upon termination
of the lease. All furnishings not removed upon termination of the lease shall become
the sole property of thb Landlord, to be disposed of in such manner as the Landlord
4
sees fit. Tenant will be charged a fee for removing abandoned furnishings, which
shall be deducted from the damage deposit.
The tenant shall not remove any Town -owned furnishings from the unit. Any missing
or damaged furniture upon check -out inspection will be charged at the cost of
replacement or repair.
• . No waterbeds will be allowed in any of the units..__
The Tenant shall make no structural alterations to the premises, nor shall the tenant
redecorate or remodel any part of the premises or install any fixtures or shelving on
the premises without the express written consent of the Landlord. Any alterations,
additions, or improvements, when made or attached to the premise, shall belong to
and become property of the Landlord and shall be surrendered upon the expiration or
sooner termination of the lease. Notwithstanding the foregoing, Landlord may
require Tenant to remove all or any part of such alterations, additions, or
improvements and return the premise to the condition existing at the commencement
of such action.
• Only small nails or non - adhesive hooks shall be used to hang pictures and decorative
items on the walls of the premises.
CHILDREN
Minor children (under 18) are not allowed as primary residents of the Town of Avon
Employee Housing.
PETS
No pets are allowed. Violation by Resident or Resident's guests or occupants, with or
without Resident's knowledge or permission, will subject Resident to a penalty of $10.00
per day, damages, eviction, and other remedies of the Lease.
USE OF LIVING SPACE
Tenant agrees to comply with all laws, orders, regulations of the federal, state, county,
and municipal authorities, and with any direction of any public officer, pursuant to law,
which shall impose any duty upon a Tenant with respect to the premises.
Firearms:
Illegal possession of firearms, ammunition, explosives, or other dangerous weapons is
prohibited in any part of the Town of Avon Employee Housing. Tenant will be allowed to
possess legally owned firearms within the unit upon full disclosure of the property
manager, Town of Avon, AND upon registration with the Avon Police Department.
Unlawful Activity:
The Tenant shall use and permit the premises to be used only as a private residence and
as the Tenant's principal place of residence. The Tenant or their guests shall not engage
E
in or permit any unlawful activity. There shall be no business activity conducted on the
premises. Possession, use or sale of controlled substances and drug paraphernalia on
premises, will be grounds for immediate eviction.
Guidelines for Alcoholic Beverages:
• If you are 21 or older, you may possess and consume alcoholic beverages in the Town
of Avon Employee Housing. Underage drinking is a violation of State law and will
not be tolerated. The complex area is defined as the building itself._ Possession and
consumption of alcoholic beverages anywhere else in the site will be in violation of
the Town of Avon's Human Resources Policies and grounds for eviction.
• If you are 21'or older, State law prohibits you from providing alcoholic beverages to
anyone not old enough to purchase them.
• Beer kegs or other bulk dispensers of alcohol are not allowed in the Town of Avon
Employee Housing.
Damages:
Intentionally damaging or defacing the premises is cause for immediate eviction.
Damage occurring or discovered at any time prior to or at the termination of the lease
shall be paid for in full upon demand. Payment will not be deducted from the Tenant's
damage deposit.
GUESTS AND VISITORS
Tenants who comply with the following ground rules may have guests in their units:
• A maximum of (1) guest per unit will be allowed to stay at any given time.
• A guest may stay for a maximum of seven (7) days in a 30 day period (a guest may
not "room hop" in order to stay longer).
• The guest, as well as his/her car, must be registered with the Property Manager.
• The Tenant assumes all responsibility for his/her guest's behavior
• Tenant will be charged at a rate of $50.00 per night per guest for each night an
unregistered guest is determined to have stayed in the unit. Abuse of the policy will
result in eviction from the complex.
INSPECTIONS
Upon commencement and termination of the lease, property manager and tenant will
perform a "check- in/check -out" inspection of the unit and its furnishings. Tenant shall
leave the premise and the furnishings and appliances therein in the same condition as
found upon commencement of the lease. Ordinary wear and tear excepted.
In order to assure all residents a safe and sanitary living environment, the property
manager will conduct periodic inspections of all the units. Upon (24) hour notice, Tenant
6
agrees to allow the property manager access to the unit during reasonable hours for the
purpose of verifying compliance with the rules and terms of the lease and for inspection
of damages and cleaning. Tenant shall not change or modify door locks nor in any way
restrict access to the unit other than by the locks provided by the Landlord. The Property
Manager may enter the premises at any time without notice or permission in an
emergency situation.
REPAIRS AND MAINTENANCE
In the event that the premises need repair, the Tenant shall notify the property manager of
Eaglebend Apartments immediately. The property manager shall coordinate the
performance of all repairs. The Tenant expressly understands that any repairs undertaken
without the knowledge and coordination by the property manager may result in charges
to the Tenant for the repairs to be done in a proper manner should the property manager
find this necessary. The Tenant will cooperate with the property manager in finding a
suitable time for the property manager to perform necessary repairs and maintenance.
The Tenant will be charged for damage resulting from negligence in reporting defects in
the premises.
Toilets, sinks and wash basins are to be used only for the purpose for which they were
intended. No trash, sanitary napkins, tampons, etc. are to be put into same. Tenant will
be charged for the unplugging of toilets or repairing of garbage disposals due to misuse.
LOCKOUTS
In the event of a lock -out, contact the property manager. IF YOU LOCK YOURSELF
OUT OF YOUR UNIT AFTER HOURS, YOU WILL BE CHARGED $50.
PAYMENT OF THE FINE IS DUE WITHIN (14) DAYS AND WILL NOT BE
DEDUCTED FROM DAMAGE DEPOSIT. AFTER HOURS IS DEFINED AS
ANYTIME BETWEEN 5:00 PM AND 8:00 AM, MONDAY THRU FRIDAY AND
ANYTIME ON THE WEEKEND.
TERMINATION OF EMPLOYMENT
If your employment with the Town of Avon terminates or you are evicted, you will have
(72) hours to complete all "check -out" procedures and vacate the unit, unless a longer
period is V rrov by the Town of Avon. You are not considered checked out until the
Town of Avon Human Resources Department receives your key. If you have not vacated
the unit within (72) hours, you are subject to rent and re -key charges and will face legal
ramifications.
NOTICE OF INTENT TO TERMINATE OR RENEW
No later than (30) days prior to expiration of the term of this lease, Tenant shall notify
property manager of its intent to vacate the premises or to renew its lease and occupancy
of the premises.
VA
I
INSURANCE
As in any rental property, renter's insurance is recommended to protect your belongings
against fire, flood, theft, etc. The Town of Avon accepts no responsibility for loss or
damage to your personal property.
MOUSING COMMITTEE
For clarifications on any housing rule or regulations, please submit your request in
writing to the Town of Avon Human Resources Department. The Town of Avon Human
Resources Department will submit the request to the Housing Committee for review. The
Housing Committee is comprised of a cross - section of Town of Avon department
employees. The Housing Committee reserves the right to add, delete, revise the rules and
regulations as may be deemed necessary for the safety, care, and cleanliness of the
premises and for securing the comfort and convenience of all Tenants in the premises.
8
I have read the Town of Avon Employee Housing Rules and Regulations. I
understand that if I do not comply with these rules and regulations, I am subject to
immediate termination from the Town of Avon Employee Housing. I also
acknowledge that a representative from the Town of Avon may perform periodic
spot checks of my unit to ensure that I am complying with all rules and regulations.
I understand that I am entitled to a 24 -hour notice if such spot check will be
performed. In case of an emergency situation, a representative from the Town of
Avon may enter my unit without notice. I also acknowledge that I may not have
pets of any kind in the TOA employee housing units.
Printed Name
Signed Name
W
Date
Date
TOWN OF AVON FINANCE AUTHORITY
h7a17
THE BANK OF CHERRY CREEK, N.A.,
AS TRUSTEE
FIRST SUPPLEMENT TO MORTGAGE
AND INDENTURE OF TRUST
Dated as of
August 1, 2000
After this instrument has been recorded, please return to:
Dee P. Wisor, Esq.
Sherman & Howard L.L.C.
633 17th Street, Suite 3000
Denver, Colorado 80202
TABLE OF CONTENTS
(This Table of Contents is not a part of this
First Supplement to Mortgage and Indenture of Trust
and is only for convenience of reference.)
Page
PREAMBLES.................................. ..............................1
ARTICLE I
DEFINITIONS AND APPLICABILITY OF INDENTURE
Section 1.01. Definitions Generally ................ ............................... 3
Section 1.02. First Supplement Definitions .......... ............................... 3
Section 1.03. Amendments to Definitions in 1998 Indenture ........................... 4
Section 1.04. First Supplement ................... ............................... 4
Section 1.05. Applicability of the 1998 Indenture ..... ............................... 4
ARTICLE II
AUTHORIZATION, TERMS, EXECUTION
AND ISSUANCE OF 2000 CERTIFICATES
Section 2.01. Authorized Amount of 2000 Certificates . ............................... 4
Section 2.02. Issuance of 2000 Certificates .......... ............................... 5
Section 2.03. Redemption ....................... ............................... 6
Section 2.04. Execution of the 2000 Certificates ... ............................... 8
Section 2.05. Effect of Execution ................. ............................... 8
Section 2.06. Form of 2000 Certificates ..............
Section 2.07. Delivery of the 2000 Certificates; Use of Proceeds ........................ 8
ARTICLE III
MISCELLANEOUS
Section 3.01. Escrowed Deeds ............ ............................... 9
Section 3.02. Undertaking to Provide Ongoing Disclosure ............................. 9
-i-
ARTICLE IV
2000 POLICY
Section 4.01. 2000 Policy ...................... ............................... 10
Section 4.02. Interested Parties .................. ............................... 10
ARTICLE V
AMENDMENTS TO THE 1998 INDENTURE
Section 5.01.
Execution of the Certificates ......... ...... ..........................
10
Section 5.02.
Effect of Authentication ............. ...............................
10
Section 5.03.
Form of Certificates ................ ...............................
10
Section 5.04.
Registration of Certificates; Persons Treated as Registered Owners; Transfer
and Exchange of Certificates ......... ...............................
10
Section 5.05.
Issuance of Additional Certificates .... ...............................
10
Section 5.06.
Book Entry ....................... ...............................
11
Section 5.07.
Creation of the Construction Fund ..... ...............................
12
Section 5.08.
Creation of Extraordinary Redemption Fund ...........................
12
Section 5.09.
Issuance Expense Fund ............... .............................12
Section 5.10.
Redemption Upon Termination of the Lease Term by Reason of Certain
Events................. ............................... ........12
Section 5.11.
Delivery of New Certificates Upon Partial Redemption of Certificates .......
12
Section 5.12.
Investment of Moneys .............. ...............................
12
Section 5.13.
Conversion, Consolidation or Merger of Trustee ........................
12
Section 5.14.
Policy ............................. .............................13
Section 5.15.
Payment Procedure Pursuant to 1998 Policy ............................
13
Section 5.16.
Amendments to Exhibits ............ ...............................
13
ARTICLE VI
MISCELLANEOUS SUPPLEMENTAL PROVISIONS
Section 6.01. Trustee Acknowledgment ........... ............................... 13
Section 6.02. Inspection of the 2000 Project ........ ............................... 13
Section 6.03. Parties Interested Herein ............ ............................... 13
Section 6.04. Titles, Headings, Captions, Etc ....................................... 13
Section 6.05. Severability ..................................................... 14
Section 6.06. Governing Law ................... ............................... 14
Section 6.07. Execution in Counterparts ........... ............................... 14
Section 6.08. Notices ............................ .............................14
Section 6.09. Reference to the Certificate Insurer .... ............................... 14
11: \CLIENT\DW ISOR \001024042\suppind6.wpd
7/25/00 11:03 am -11-
FIRST SUPPLEMENT TO MORTGAGE AND INDENTURE OF TRUST
FIRST SUPPLEMENT TO MORTGAGE AND INDENTURE OF TRUST dated as
of August 1, 2000 (the "First Supplement ") by and between the TOWN OF AVON FINANCE
AUTHORITY (the "Lessor "), a nonprofit corporation duly organized, existing and in good standing
under the laws of the State of Colorado, and THE BANK OF CHERRY CREEK, N.A., as Trustee
(the "Trustee "), duly organized and existing under the laws of the United States of America.
WITNESSETH:
WHEREAS, the Town of Avon, Colorado (the "Town ") has been duly organized and
is validly existing as a home rule town under the Constitution of the State of Colorado and the home
rule charter of the Town (the "Charter "); and
WHEREAS, the Lessor is a nonprofit corporation duly organized, existing and in
good standing under the laws of the State of Colorado; and
WHEREAS, the Trustee is authorized to accept and execute trusts of the character
herein set out under and by virtue of the laws of the United States of America and has an office and
place of business in Denver, Colorado; and
WHEREAS, pursuant to Section 14.9 of the Charter, the Town is authorized to enter
into one or more leases or lease - purchase agreements for land, buildings, equipment and other
property for governmental or proprietary purposes; and
WHEREAS, the Town and the Lessor have previously entered into a Lease Purchase
and Sublease Agreement dated as of July 1, 1998 (the "1998 Lease ") whereby the Town leases from
the Lessor a public work facility (the "1998 Project "), as more fully described in Exhibit C to the
1998 Lease and subleases from the Lessor certain land owned by the Town (the "Site "), as more
fully described in Exhibit A to the 1998 Lease: and
WHEREAS, to finance the 1998 Project, the Lessor and the Trustee entered into a
Mortgage and Indenture of Trust dated as of July 1, 1998 (the "1998 Indenture ") pursuant to which
there were issued Certificates of Participation, Series 1998, in the aggregate principal amount of
$7,085,000 (the "1998 Certificates ") evidencing assignments of proportionate undivided interests
in rights to receive Revenues (as defined in the 1998 Lease) under the 1998 Lease; and
WHEREAS, the Town Council has determined and hereby determines it is in the best
interests of the Town and its inhabitants that the Town acquire eleven units in the Sherwood
Meadows Condominiums (the "2000 Project "), as more particularly described in Part II of Exhibit
C to the First Amendment (defined below) for use as affordable housing; and
WHEREAS, in comlection with the 2000 Project, the Town and the Lessor will enter
into a First Amendment to Lease Purchase and Sublease Agreement of date even herewith (the "First
Amendment ") which amends the 1998 Lease to, among other things, add the 2000 Project to the
property leased by the Town from the Lessor (the 1998 Project and the 2000 Project shall be referred
to collectively as the "Project "); and
WHEREAS, pursuant to the 1998 Lease, as amended by the First Amendment (as so
amended, the "Lease "), and subject to the right of the Town to terminate the Lease and other
limitations as therein provided, the Town will pay certain Base Rentals and Additional Rentals (as
such terms are defined in the Lease) in consideration for the right of the Town to use the 2000
Project; and
WHEREAS, the 1998 Indenture, as supplemented by this First Supplement (as so
supplemented, the "Indenture "), provides for the issuance of Additional Certificates pursuant thereto
for purposes such as the 2000 Project; and
WHEREAS, to finance the costs of the 2000 Project, the Lessor and the Trustee have
entered into this First Supplement which supplements and amends the 1998 Indenture and pursuant
to which there will be issued certain Certificates of Participation, Series 2000, in the aggregate
principal amount of $2,345,000 (the "2000 Certificates ") which will be Additional Certificates under
the 1998 Indenture and which will evidence assignments of proportionate undivided interests in
rights to receive Revenues under the Lease, including the First Amendment; and
WHEREAS, pursuant to the Indenture, including this First Supplement, the right of
the Lessor to receive the Base Rentals and certain other payments as provided in the Indenture and
in the Lease (with certain exceptions as provided herein and in the Lease) has been assigned to the
Trustee; and
WHEREAS, pursuant to the Indenture and this First Supplement, the Lessor will
grant to the Trustee a first mortgage on and a security interest in the 2000 Project, subject only to
Permitted Encumbrances (as defined in the Lease); and
WHEREAS, the 2000 Certificates and any Additional Certificates (as defined in the
Lease) (the 1998 Certificates, the 2000 Certificates and any Additional Certificates collectively, the
"Certificates ") hereafter issued pursuant to the Indenture will evidence assignments of proportionate
undivided 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 Trustee has entered into the Indenture, including this First
Supplement, for and on behalf of the registered owners of the Certificates (the "Participants ") and
4
will hold its rights thereunder and hereunder, including its rights with respect to the Project, except
as otherwise specifically provided therein and herein, for the equal and proportionate benefit of the
Participants and will disburse moneys received by the Trustee in accordance with the Indenture; and
WHEREAS, all things necessary to make the 2000 Certificates, when executed and
delivered by the Trustee as in this First Supplement provided, legal, valid and binding assignments
of proportionate undivided interests in rights to receive Base Rentals and certain other payments as
provided in the Indenture, as supplemented hereby, and to constitute the Indenture (including this
First Supplement) a valid, binding and legal instrument for the security of the 2000 Certificates in
accordance with its terms, have been done and performed.
NOW, ' THEREFORE, THIS FIRST SUPPLEMENT TO MORTGAGE AND
INDENTURE OF TRUST WITNESSETH:
ARTICLE I
DEFINITIONS AND APPLICABILITY OF INDENTURE
Section 1.01. Definitions Generally. Unless the context clearly requires otherwise,
all words and phrases defined in Article I of the Lease (including the First Amendment) and in
Article I of the 1998 Indenture, as hereby supplemented, shall have the same meanings in this First
Supplement.
Section 1.02. First Supplement Definitions. For all purposes of this First
Supplement and the Lease, including the First Amendment, the following terms, except where the
context indicates otherwise, shall have the respective meanings set forth below.
"1998 Certificates" means the Certificates of Participation, Series 1998, dated as of
July 1, 1998 issued pursuant to the 1998 Indenture.
1998 Indenture" means the Mortgage and Indenture of Trust dated as of July 1, 1998
between the Lessor and the Trustee.
"Policy" means the 1998 Policy and the 2000 Policy, collectively, together with any
future financial guaranty insurance policy insuring the Certificates, including any Additional
Certificates.
"2000 Certificates" means the Town of Avon Finance Authority Certificates of
Participation, Series 2000, issued pursuant to the Indenture and this First Supplement, which
evidence assignments of proportionate interests in rights to receive Revenues.
3
"2000 Insurer" means MBIA Insurance Corporation, a New York domiciled stock
insurance company, or any successor thereto.
"2000 Policy" means the policy of insurance issued by MBIA Insurance Corporation
insuring the payment when due of the principal of and interest on the 2000 Certificates as provided
therein.
Section 1.03. Amendments to Definitions in 1998 Indenture. Definitions in the 1998
Indenture of the following terms are hereby amended as follows:
"Certificate Insurer" means with respect to the 1998 Certificates and the 2000
Certificates, MBIA Insurance Corporation and, with respect to any series of Additional Certificates,
the issuer of a Policy with respect thereto.
"Insurance Trustee" means State Street Bank and Trust Company, N.A., as insurance
trustee with respect to the 1998 Policy and the 2000 Policy and, with respect to any other Policy, the
insurance trustee designated by the issuer of such Policy.
"Issuance Expenses" this definition is amended by deleting "1998" each time it
appears before the word "Certificates."
"1998 Policy" means the policy of insurance issued by MBIA Insurance Corporation
insuring the payment when due of the principal of and interest on the 1998 Certificates as provided
therein.
"Regular Record Date" means the fifteenth day (whether or not a Business Day) of
the calendar month next preceding each interest payment date for the Certificates (other than a
Special Record Date).
Section 1.04. First Supplement. This First Supplement amends and supplements
the 1998 Indenture and is entered into in accordance with the provisions of the 1998 Indenture.
Section 1.05. Applicability of the 1998 Indenture. Except as otherwise provided
herein, the provisions of the 1998 Indenture govern the 2000 Project and the 2000 Certificates. For
all purposes of the Indenture, "the Project" shall include the 2000 Project financed with the proceeds
of the 2000 Certificates as well as the 1998 Project financed with the proceeds of the 1998
Certificates, and "the Certificates" shall mean and include the 2000 Certificates as well as the 1998
Certificates.
4
ARTICLE II
AUTHORIZATION, TERMS, REDEMPTION, EXECUTION
AND ISSUANCE OF 2000 CERTIFICATES
Section 2.01. Authorized Amount of 2000 Certificates. No Certificates shall be
issued hereunder except in accordance with this Article and Article II of the 1998 Indenture, as
applicable. The aggregate principal amount of 2000 Certificates that may be issued shall be
$ , except as provided in Sections 2.08 and 2.09 of the Indenture.
Section 2.02.. Issuance of 2000 Certificates. In order to provide funds to pay the
costs of the 2000 Project, to acquire the 2000 Policy and to pay-the costs of issuance with respect
to the 2000 Certificates, the 2000 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. The 2000 Certificates shall be issuable solely as fully registered
Certificates without coupons in the denominations of $5,000 and any integral multiple thereof. The
2000 Certificates shall be lettered "R" and shall be numbered separately from 1 upward. The 2000
Certificates shall be dated as of August 1, 2000 and shall bear interest from their dated date until
their maturity or prior redemption payable on each interest payment date, except that 2000
Certificates which are reissued upon transfer, exchange or other replacement shall bear interest from
the most recent interest payment date to which interest has been paid or if no interest has been paid,
from the date of the 2000 Certificates.
The 2000 Certificates shall bear interest at the rates per annum shown below, payable
semiannually on June 1 and December 1 of each year, commencing December 1, 2000, and shall
mature on December 1 of the years, and in the principal amounts as follows:
5
Year
Principal
Interest Rate
(December D
Amount
(Per Amium)
2001
$ 70,000
4.45%
2002
75,000
4.65%
2003
75,000
4.75%
2004
80,000
4.75%
2005
85,000
4.80%
2006
90,000
4.80%
2007
100,000
4.90%
2008
100,000
5.00%
2009
100,000
5.00%
2010
110,000
5.00%
2011
115,000
5.10%
2012
125,000
5.20%
2013
125,000
5.30%
2020
1,095,000
5.65%
The principal of and premium, if any, on the 2000 Certificates shall be payable to the registered
owner thereof as shown on the registration records of the Lessor kept by the Trustee, upon maturity
or prior redemption thereof and upon presentation and surrender thereof at the Principal Office of
the Trustee. Payment of interest on any 2000 Certificate shall be made to the registered owner
thereof by check mailed by the Trustee, on each interest payment date (or, if such interest payment
date is not a Business Day, on the next succeeding Business Day), to the registered owner thereof
at the address of such registered owner shown on the registration records of the Lessor kept by the
Trustee at the close of business on the Regular Record Date for such interest payment date. Any
such interest not so timely paid 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
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 2000 Certificates not less than ten days prior
thereto by first -class mail to each such registered owner as shown on the registration records, 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 2000 Certificate by such alternative means as
may be mutually agreed to between the registered owner of such 2000 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. Redemption. The 2000 Certificates are subject to redemption as set
forth below:
0
(a) The 2000 Certificates shall be called for redemption in whole 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 Town of its option to purchase the 2000 Project as provided
in the Lease, upon payment of the then applicable Purchase Option Price; provided, however,
that subsection (b) below, and not this subsection (a), shall apply in the event that the
Purchase Option Price is paid from moneys borrowed by the Town or derived from any
installment purchase or lease purchase financing by the Town. In the event the 2000
Certificates are redeemed pursuant to this subsection (a), the 2000 Certificates shall be
redeemed, in whole but not in part, at a redemption price equal to 100% of the principal
amount thereof, plus accrued interest to the redemption date.
(b) 'In the event that the Purchase Option Price is paid from moneys borrowed by
the Town or derived from any installment purchase or lease purchase financing by the Town,
the 2000 Certificates maturing on or before December 1, 2010 shall not be callable for
redemption prior to maturity, and the 2000 Certificates maturing on and after December 1,
2011, shall be callable for redemption prior to maturity, at the option of the Town, in whole
or in part, from such maturities selected by the Town and by lot within any maturity in such
manner as the Trustee shall determine, on December 1, 2010 and on any date thereafter, at
a redemption price equal to the principal amount so redeemed, plus accrued interest to the
redemption date without premium.
(c) The 2000 Certificates shall be called for redemption in the event and only to
the extent that Extraordinary Revenues are deposited into the Extraordinary Redemption
Fund, other than as provided in subsection (a), (b) or (d) of this Section or in Section 4.02
of the Indenture. In the event that the 2000 Certificates are redeemed pursuant to this
subsection, the 2000 Certificates shall be redeemed in whole or in part in inverse order of
maturity and by lot within any maturity in such mariner as the Trustee shall determine, at a
redemption price of 100% of the principal amount thereof plus accrued interest to the
redemption date, on the first Business Day for which notice of redemption may be given.
When 2000 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 to reflect the effect of
such partial redemption.
(d) The 2000 Certificates maturing December 1, 2020, are subject to mandatory
sinking fund redemption at aprice equal to the principal amount thereofplus accrued interest
to the redemption date. The 2000 Certificates of a maturity subject to mandatory sinking
fund redemption shall be selected by lot in such manner as the Trustee shall determine.
The following principal amounts of the 2000 Certificates maturing December 1,
2020, shall be subject to mandatory sinking fund redemption (after credit as provided below)
on December 1 of the following years:
FI
Year Principal Amount
2014
$ 130,000
2015
140,000
2016
145,000
2017
155,000
2018
165,000
2019
175,000
The remaining $185,000 of the 2000 Certificates maturing December 1, 2020, shall be paid
upon presentation and surrender at maturity unless redeemed pursuant to optional redemption
prior to maturity.
On or before the thirtieth day prior to each such sinking fund payment date, the
Trustee shall proceed to call the 2000 Certificates indicated above (or any 2000 Certificate
or 2000 Certificates issued to replace such Certificates ) for redemption from the sinking
fund on the next December 1, and give notice of such call without other instruction or notice
from the Town or the Lessor. The amount of each sinking fund installment may be reduced
by the principal amount of any 2000 Certificates of the maturity which is subject to sinking
fund redemption on such date and which prior to such date have been redeemed (otherwise
than through the operation of the sinking fund) or otherwise canceled and not theretofore
applied as a credit against a sinking fund installment. Such reductions, if any, shall be
applied in such year or years as may be determined by the Town.
(e) The 2000 Certificates are also subject to redemption as provided in Section 4.02
of the Indenture.
Section 2.04. Execution of the 2000 Certificates. The manual signature of a duly
authorized officer of the Trustee shall appear on each 2000 Certificate. Any 2000 Certificate shall
be deemed to have been executed by a duly authorized officer of the Trustee if signed by the Trustee
Representative, but it shall not be necessary that the same officer sign all of the 2000 Certificates
issued hereunder. In case any official of the Trustee whose signature shall appear on the 2000
Certificates shall cease to be such official before delivery of the 2000 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. Effect of Execution. No 2000 Certificate shall be secured by the
Indenture or hereby or be entitled to the benefit of the Indenture or hereof, or be valid or obligatory
for any purpose, unless and until executed in the manner prescribed by Section 2.04 hereof, and such
execution of any 2000 Certificate shall be conclusive evidence that such 2000 Certificate has been
properly issued and delivered hereunder.
8
Section 2.06. Form of2000 Certificates. The 2000 Certificates shall be substantially
in the form set forth in Exhibit A to this First Supplement, with such necessary or appropriate
variations, omissions and insertions as permitted or required by the 1998 Indenture or hereby.
Section 2.07. Delivery of the 2000 Certificates: Use of Proceeds. Upon the
execution and delivery of this First Supplement, the Trustee shall execute and deliver the 2000
Certificates to the original purchaser thereof as hereinafter in this Section provided.
(a) Prior to the delivery by the Trustee of any of the 2000 Certificates,
there shall be filed with the Trustee (i) originally executed counterparts of the First
Amendment and this First Supplement, (ii) a certified copy of the ordinance adopted
by the 'Town Council authorizing the execution and delivery of the First Amendment;
(iii) a certified copy of a resolution adopted by the Board of Directors of the Lessor
authorizing the execution and delivery of the First Amendment and this First
Supplement and approving the issuance of the 2000 Certificates; (iv) a commitment
for the issuance of the title insurance policies required by Section 4.3 of the First
Amendment and (v) the 2000 Policy.
(b) Thereupon, the Trustee shall deliver the 2000 Certificates to the
original purchaser thereof, upon payment to the Trustee of a sum specified in a
certificate of the Town delivered to the Trustee, plus accrued interest on the 2000
Certificates to the date of delivery. Such amounts (net of any underwriting and any
original issuance discount and the premium for the 2000 Policy) shall be deposited
as follows:
(i) In the Interest Account of the Certificate Fund, a sum equal
to the accrued interest, if any, paid by the original purchaser of the 2000
Certificates.
(ii) In the Construction Fund the sum of $1,978,082.11.
(iii) To the Town the sum of $85,057.24 for payment of the
Issuance Expenses.
(iii) In the Reserve Fund the sum of $198,922.50.
ARTICLE III
2000 POLICY
Section 3.01. 2000 Policy. The provisions of Article X of the Indenture shall also
apply to the 2000 Policy issued in connection with the 2000 Certificates.
E
ARTICLE IV
AMENDMENTS TO THE 1998 INDENTURE
Section 4.01. Execution of the Certificates. Section 2.04 of the Indenture is hereby
amended to apply specifically to the 1998 Certificates only.
Section 4.02. Effect of Authentication. Section 2.05 of the Indenture shall only
apply to the 1998 Certificates.
Section 4.03. Form of Certificates. Section 2.06 of the Indenture and the form of
certificate in Exhibit A to the 1998 Indenture shall apply specifically to the 1998 Certificates.
Section 4.04. Registration of Certificates; Persons Treated as Registered Owners;
Transfer and Exchange of Certificates. The provisions in Section 2.09 of the Indenture pertaining
to the authentication of Certificates by the Town shall be limited to the 1998 Certificates. The third
paragraph of Section 2.09 is hereby amended by the addition of "or as provided in the First
Supplement" immediately after the words "as herein provided."
Section 4.05. Issuance of Additional Certificates. Section 2.11 of the Indenture is
hereby amended as follows:
The second paragraph is hereby amended to read:
Additional Certificates may be issued to provide funds to pay
any one or more of the following: (i) the costs of refunding all
or any of the Outstanding Certificates for purposes of reducing
the Base Rentals; (ii) the costs of making at any time or from
time to time such substitutions, additions, modifications and
improvements in, on or to the Project or in, on or to such other
property as the Town may deem necessary or desirable, or the
costs of any capital improvement or the costs of the acquisition
of such real or personal property as the Town may deem
necessary or desirable; and (iii) the costs of the issuance and
sale of the Additional Certificates, any deposit to the Reserve
Fund necessary for the amount therein to equal the Reserve
Fund Requirement and capitalized interest for such period, and
such other costs reasonably related to the financing as shall be
agreed upon by the Town, the Lessor and the Trustee.
Subsection (a) is hereby amended to read:
10
(a) Originally executed counterparts of a supplemental
Indenture and an amendment to the Lease adopted in
accordance with the requirements of Article IX hereof,
including any applicable requirements regarding approval of
the Certificate Insurer, expressly providing that, for all the
purposes hereof, "the Project" shall include any property,
buildings or equipment also brought under the provisions of the
Lease, as shown in the applicable exhibits to the Lease, as
amended, whether or not being financed by the Additional
Certificates, and that "the Certificates" shall mean and include
the Additional Certificates being issued as well as any
Certificates and Additional Certificates theretofore issued,
except that the date or dates of the Additional Certificates, the
rate or rates of interest on the Additional Certificates, and
provisions for the redemption thereof, if any, all shall be as
provided in the supplemental Indenture and amendment to the
Lease rather than as provided herein, and further providing for
a modification of the Base Rentals required to be paid to the
Trustee under Exhibit B to the Lease in such amount as shall be
necessary to pay (assuming that no Termination Event shall
occur), the principal of and interest on the Certificates then
Outstanding as well as the Additional Certificates proposed to
be issued.
Subsection (b) is hereby amended to replace the words "the authentication of the
Additional Certificates" with the words "the issuance of the Additional Certificates."
Section 4.06. Book Entry. The first sentence of subsection (a), subparagraphs (a)(1)
and (a)(2), and the first sentence of subsection (b) of Section 2.12 of the Indenture are hereby
amended as follows:
(a) Notwithstanding any contrary provision of this Indenture, each
separate series of Certificates shall initially be evidenced by one Certificate for each maturity in
which the Certificates mature in denominations equal to the aggregate principal amount of the
Certificates maturing for that maturity.
Subparagraphs (a)(1) and (a)(2) are amended to add the requirement that any
successor or new depository under clause (1) or clause (2) also be a "clearing corporation" as defined
in Section 4- 8- 102(a)(5), Colorado Revised Statutes.
The first sentence of subsection (b) is hereby amended to read:
11
(b) In the case of a transfer to a successor of The Depository Trust
Company or its nominee as referred to in clause (1) of paragraph (a) hereof or designation of a new
depository pursuant to clause (2) of paragraph (a) hereof, upon receipt of the Outstanding
Certificates by the Trustee, together with written instructions for transfer satisfactory to the Trustee,
a new Certificate for each maturity of each series of the Certificates then Outstanding shall be issued
to such successor or new depository, as the case may be, or its nominee, as is specified in such
written transfer instructions.
Section 4.07. Creation of the Construction Fund. The second sentence of Section
3.09 of the Indenture is hereby amended to read: "There shall be deposited into the Construction
Fund all amounts specified. in Section 2.07 hereof and the amounts, if any, specified in any
supplemental indenture entered into in connection with the issuance of a series of Additional
Certificates."
Section 4.08. Creation of Extraordinary Redemption Fund. Section 3.11 of the
Indenture is hereby amended to add a cross - reference to Section 2.03 of the First Supplement
following the current reference to Section 4.01 of the Indenture and a cross - reference to
Section 2.03(b) of the First Supplement following the references to Section 4.01(b) of the Indenture.
Section 4.09. Issuance Expense Fund. Section 3.13 of the Indenture is hereby
amended by the addition of the words "or by any supplemental indenture entered into in connection
with the issuance of a series of Additional Certificates" at the end of the second sentence thereof
Section 4.10. Redemption Upon Termination of the Lease Term by Reason of
Certain Events. The first paragraph of Section 4.02 of the Indenture is hereby amended to change
the reference to "the 1998 Policy" to "any Policy then in effect." The final sentence of Section 4.02
of the Indenture is hereby amended to read, "Whenever all of the principal of and interest on all
Certificates has been paid under the provisions of this Section from amounts other than those
available under the Policy, and all expenses and charges of the Trustee have been paid, any balance
remaining in any fund or account created under this Indenture (other than the Rebate Fund or any
defeasance escrows established pursuant to Article VI hereof) shall be paid to the Town as an
overpayment of Base Rentals."
Section 4.11. Delivery of New Certificates Upon Partial Redemption of Certificates.
Section 4.06 of the Indenture is hereby amended to replace the word "authenticated" with "executed"
as it pertains to Certificates other than the 1998 Certificates.
Section 4.12. Investment of Moneys. Section 5.01 and Section 3.17 of the Indenture
are hereby amended to provide that for purposes of determining rebate compliance, investments
purchased with proceeds from different series of Certificates shall be tracked separately.
Section 4.13. Conversion. Consolidation or Merger of Trustee. The provisions in
Section 8.04 of the Indenture regarding the authentication of Certificates shall be understood to apply
12
to the 1998 Certificates, and the concept of "execution" shall be substituted into this Section when
referring to the 2000 Certificates.
Section 4.14. Policy. Section 10.01 of the Indenture is hereby amended to read: "All
amounts received under the 1998 Policy or the 2000 Policy shall be used solely for the payment of
principal of and interest on the 1998 Certificates or 2000 Certificates, respectively, when due."
Section 4.15. Payment Procedure Pursuant to 1998 Policy. The heading to Section
10.03 of the Indenture is hereby amended to read: Payment Procedure Pursuant to 1998 Policy and
2000 Policy.
Section 4.16. Amendments to Exhibits. Exhibit A to the Indenture is hereby
amended to include Exhibit A to this First Supplement.
ARTICLE V
MISCELLANEOUS SUPPLEMENTAL PROVISIONS
Section 5.01. Escrowed Deed(s). The Trustee agrees to hold the escrowed deed or
deeds provided for in Section 4.9 of the First Amendment, for the benefit of the Town, and to date
and release the escrowed deed or deeds to the Town, all as provided in Section 4.9 of the First
Amendment.
Section 5.02. Undertaking to Provide Ongoing Disclosure. The Town has
undertaken to provide ongoing disclosure for the benefit of the owners of the 2000 Certificates in
Section 4.8 of the First Amendment.
Notwithstanding any other provision of the Indenture, including this First
Supplement, failure of the Town or the Trustee to comply with Section 4.8 of the First Amendment
shall not be considered an Event of Default under the Indenture, and the rights and remedies
provided by the Indenture upon the occurrence of an Event of Default shall not apply to any such
failure. Section 4.8 of the First Amendment shall be enforceable only by specific performance, by
any registered owner of a 2000 Certificate as further described in Section 4.8 of the First
Amendment. However, neither the Lessor nor the Trustee shall have any power or duty to enforce
the obligations of the Town under Section 4.8 of the First Amendment.
Section 5.03. Trustee Acknowledgment. lent. The Trustee hereby acknowledges that it
has consented to the amendments to the 1998 Lease and the 1998 Indenture which are contained in
the First Amendment and First Supplement, respectively. Such amendments have been entered into
pursuant to Article IX of the Indenture. The 1998 Insurer has also consented to the First Supplement
and First Amendment.
13
Section 5.04. Voting Proxv to Trustee. The Lessor hereby appoints the Trustee
as its proxy to vote the Lessor's interest in the Association under the circumstances set forth in
Condominium Bylaw 13.5, such proxy to become effective upon the filing by the Trustee of the
notice referred to in said Bylaw, and the Trustee hereby accepts such appointment.
Section 5.05. Trustee Consent Required for Amendment to Condominium
Documents. The Lessor covenants that it shall not, except after notice to the Trustee and with the
Trustee's prior written consent, (i) vote for or consent to any amendment to any Condominium
Document or (ii) take any action which would have the effect of rendering the property damage,
casualty and public liability insurance maintained by the Association as required by the Declaration
unacceptable to the Trustee.
Section 5.06. Inspection of the 2000 Project. The Trustee and its duly authorized
agents shall have the right, on reasonable notice to the Town, at all reasonable times, to examine and
inspect the 2000 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 Town with respect
to the 2000 Project.
Section 5.07. Parties Interested Herein. With the exception ofrights herein or in the
Indenture expressly conferred on the Town, nothing in this First Supplement expressed or implied
is intended or shall be construed to confer upon, or to give to, any Person other than the Lessor, the
Trustee, the Certificate Insurer and the Participants, any right, remedy or claim under or by reason
of this First Supplement or any covenant, condition or stipulation hereof; and all the covenants,
stipulations, promises and agreements in the Indenture, including this First Supplement, contained
by and on behalf of the Lessor or the Trustee shall be for the sole and exclusive benefit of the Lessor,
the Trustee, the Certificate Insurer and the Participants.
Section 5.08. Titles, Headings, Captions Etc. The titles, captions and headings of
the articles, sections and subdivisions of this First Supplement have been inserted for convenience
of reference only and shall in no way modify or restrict any of the terms or provisions hereof.
Section 5.09. Severability. In the event any provision of this First Supplement 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 5.10. Governing Law. This First Supplement shall be governed and
construed in accordance with the laws of the State of Colorado, without regard to conflict of laws
principles.
Section 5.11. Execution in Counterparts. This First Supplement 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.
14
Section S. 12. Notices. All notices, certificates or other communications hereunder
shall be sufficiently given and shall be deemed given when delivered or mailed in accordance with
Section 11.09 of the Indenture.
Section 5.13. Reference to the Certificate Insurer. References in the Indenture or
this First Supplement to "the Certificate Insurer" or "the 2000 Insurer" shall be effective only so long
as the Certificate Insurer has not defaulted under its obligations with respect to any Policy issued
thereby; provided that, notwithstanding any such default, the Certificate Insurer shall be given copies
of notices and communications to the extent otherwise required by the Indenture and this First
Supplement.
IN WITNESS WHEREOF, the Lessor and the Trustee have caused this First
Supplement to be executed in their respective corporate names, all as of the date first above written.
[SEAL]
Attest:
lam! �
. ,�
15
TOWN OF AVON FINANCE AUTHORITY
By
President
THE BANK OF CHERRY CREEK, N.A.,
as Trustee
By
Assistant Vice President
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this 1 day of t(Sj- , 2000
by P (r, I JP r ti and by Scott Wright as President and Secretary, respectively, of the
Town A Avon Finance Authority, a Colorado nonprofit corporation.
WITNESS my hand and official seal.
Nota6 Public for the State of Colorado
[SEAL]
My commission expires:
STATE OF COLORADO )
) ss.
CITY AND COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this 41bT day of Auqu5i,2000
by Jeannie Stricklen, as Assistant Vice President of The Bank of Cherry Creek, N.A.
WITNESS my hand and official seal.
CAROLINE VOLTZ JJ„,
NOTARY PUBLIC
STATE OF COLORADO Notary Public for the State of Col ado
[SEAL]
My commission expires:
My Cpnvr*W n Expires Aug. e, 2003
[C�
EXHIBIT A
(Form of 2000 Certificate)
Unless this certificate is presented by an authorized representative of The Depository Trust
Company, a New York corporation ( "DTC "), to the Trustee for registration of transfer, exchange,
or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or
to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.
THE TOWN OF AVON FINANCE AUTHORITY
CERTIFICATE OF PARTICIPATION
SERIES 2000
Evidencing Assignment of a
Proportionate Undivided Interest in
Rights to Receive Certain Revenues
Pursuant to the
Lease Purchase and Sublease Agreement, as amended,
Between
THE TOWN OF AVON FINANCE AUTHORITY, as Lessor
and
TOWN OF AVON, COLORADO, as Lessee
No. R- $
INTEREST RATE: MATURITY DATE: DATED DATE: CUSIP:
December 1, August 1, 2000
REGISTERED OWNER: Cede & Co.
PRINCIPAL SUM: DOLLARS
THIS CERTIFIES THAT THE REGISTERED OWNERnamed above, orregistered assigns,
has a proportionate undivided interest in rights to receive certain revenues, as described below,
pursuant to an annually renewable Lease Purchase and Sublease Agreement dated as of July 1, 1998,
as amended and supplemented by a First Amendment to Lease Purchase and Sublease Agreement
A -1
(the "First Amendment ") dated as of August 1, 2000 (as so amended, the "Lease "), between the
TOWN OF AVON FINANCE AUTHORITY, a Colorado nonprofit corporation, as lessor (the
"Lessor ") and the TOWN OF AVON, COLORADO, as lessee (the "Town "). 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 July 1, 1998, as amended and
supplemented by a First Supplement to Mortgage and Indenture of Trust (the "First Supplement ")
dated as of August 1, 2000 (as so supplemented, the "Indenture "), between the Lessor and The Bank
of Cherry Creek, N.A., as trustee, or its successor (the "Trustee ") for the registered owners of the
Certificates (the "Participants "), whereby the rights as therein provided of the Lessor, as lessor and
sublessor under the Lease (with certain exceptions), 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 and the First Supplement at the Interest Rate stated
above per annum payable June 1 and December 1 of each year, commencing on December 1, 2000.
This Certificate bears interest, matures, is payable, is subject to redemption, and is transferable as
provided in the First Supplement. To the extent not defined herein, terms used in this Certificate
shall have the same meanings as set forth in the Indenture, as amended.
This Certificate is issued as a2000 Certificate, as defined in the First Supplement. The 2000
Certificates of which this Certificate is one are "Additional Certificates" as defined in the Indenture
and the Lease, and are equally and proportionately secured under and entitled to the protection given
by the Indenture with the Certificates of Participation, dated as of July 1, 1998 (the "1998
Certificates "). Future issues of Additional Certificates may be issued as described in the Indenture,
and if issued, such Additional Certificates may be equally and proportionately secured under and
entitled to the protection given by the Indenture to the 1998 Certificates and the 2000 Certificates.
The 2000 Certificates, evidencing assignments of proportionate undivided interests in rights
to receive certain Revenues, as described below, pursuant to the Lease and the Indenture are issued
in the aggregate principal amount of $2,345,000, pursuant to the Indenture and the First Supplement
for the purpose, among others, of providing funds to finance the 2000 Project which is part of the
"Project" as defined in the Lease.
Under the Leasd, the Project and the Equipment (as defined in the Lease) have been leased
by the Lessor to the Town and the Site (as defined in the Lease) has been subleased by the Lessor
to the Town, and the Town has agreed to pay directly to the Trustee semiannual rental payments in
consideration for its right to use the Project, the Equipment and the Site, 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.
F.I
The payment of the principal and interest hereon may also be paid by MBIA Insurance
Corporation (the "Certificate Insurer ") which has issued a Municipal Bond Insurance Policy (the
"2000 Policy ") insuring the Town's payment of principal of and interest on the 2000 Certificates
under certain circumstances. The Lease may also be terminated in the event that the Town 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 Town shall pay the Purchase Option Price, the proceeds
thereof are required to be used to pay the Certificates and interest thereon. AS FURTHER
DESCRIBED IN THE INDENTURE AND THE LEASE, THE CERTIFICATE INSURER HAS
THE EXCLUSIVE RIGHT TO DIRECT ANY ACTION OR REMEDY TO BE UNDERTAKEN
BY THE TRUSTEE, THE CERTIFICATE OWNERS OR ANY OTHER PARTY PURSUANT TO
THE LEASE OR THE INDENTURE. NO EVENT OF DEFAULT OR EVENT OF
NONAPPROPRIATION MAY BE WAIVED WITHOUT THE CONSENT OF THE
CERTIFICATE INSURER.
NEITHER THE LEASE NOR THE CERTIFICATES CONSTITUTES A GENERAL
OBLIGATION OR OTHER INDEBTEDNESS OR MULTIPLE FISCAL YEAR DIRECT OR
INDIRECT FINANCIAL OBLIGATION OF THE TOWN WITHIN THE MEANING OF ANY
CONSTITUTIONAL, STATUTORY OR HOME RULE CHARTER DEBT LIMITATION. NONE
OF THE LEASE, THE INDENTURE OR THE CERTIFICATES DIRECTLY OR INDIRECTLY
OBLIGATE THE TOWN 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 CERTAIN
INSURANCE POLICIES, PERFORMANCE BONDS AND CONDEMNATION AWARDS,
FROM NET PROCEEDS RECEIVED AS A CONSEQUENCE OF DEFAULTS UNDER
CONSTRUCTION CONTRACTS, FROM NET PROCEEDS OF SUBLEASING OF THE SITE
AND LEASING THE PROJECT OR SELLING AN ASSIGNMENT OF THE GROUND LEASE
OR FROM OTHER AMOUNTS MADE AVAILABLE UNDER THE INDENTURE, INCLUDING
AMOUNTS PAID UNDER THE 2000 POLICY, THIS CERTIFICATE WILL BE PAYABLE
DURING THE LEASE TERM SOLELY FROM BASE RENTALS AND THE PURCHASE
OPTION PRICE, IF ANY, TO BE PAID BY THE TOWN UNDER TIIE LEASE AND TIIE
INCOME FROM CERTAIN INVESTMENTS THEREUNDER. ALL PAYMENT OBLIGATIONS
OF THE TOWN UNDER THE LEASE, INCLUDING, WITHOUT LIMITATION, THE
OBLIGATION OF THE TOWN TO PAY BASE RENTALS, ARE FROM YEAR TO YEAR
ONLY AND DO NOT CONSTITUTE A MANDATORY PAYMENT OBLIGATION OF THE
TOWN IN ANY FISCAL YEAR BEYOND A FISCAL YEAR IN WHICH THE LEASE SIIALL
BE IN EFFECT. THE LEASE IS SUBJECT TO ANNUAL RENEWAL AT THE OPTION OF
THE TOWN AND WILL BE TERMINATED UPON THE OCCURRENCE OF A TERMINATION
EVENT. IN SUCH EVENT, ALL PAYMENTS FROM THE TOWN UNDER TIIE LEASE WILL
TERMINATE, AND THIS CERTIFICATE AND THE INTEREST HEREON WILL BE
PAYABLE FROM CERTAIN MONEYS, IF ANY, HELD BY THE TRUSTEE UNDER TIIE
INDENTURE AND ANY MONEYS MADE AVAILABLE BY ACTION OF TIIE TRUSTEE
A -3
REGARDING THE SITE AND THE PROJECT. THE LESSOR HAS NO OBLIGATION TO
MAKE ANY PAYMENTS ON THE CERTIFICATES.
Reference is hereby made to the Lease and the Indenture for a description of the rights, duties
and obligations of the Town, the Lessor, the Trustee, the Certificate Insurer 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 or redemption of the Certificates upon the making of
provision for the full or partial payment thereof, the rights of the Participants upon the occurrence
of an Event of Default or an Event of Nonappropriation, the ability to amend the Indenture, and to
all the provisions of which the Participant by the acceptance of this Certificate assents.
This 2000 Certificate is issued with the intent that the laws of the State of Colorado shall
govern its legality, validity, enforceability and construction.
This 2000 Certificate shall not be valid or become obligatory for any purpose or be entitled
to any security or benefit under the Lease or the Indenture until executed on behalf of the Trustee.
IN WITNESS WHEREOF, this 2000 Certificate has been executed with the manual signature
of an authorized representative of the Trustee as of the date first above written.
(BANK SEAL)
THE BANK OF CHERRY CREEK, N.A.,
as Trustee
By (Manual Signature)
Authorized Signatory
(End of Form of 2000 Certificate)
A -4
(Form of Assignment)
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
the within Certificate and all rights thereunder,
and hereby irrevocably constitutes and appoints attorney to transfer the
within Certificate on the records kept for registration thereof, with full power of substitution in the
premises.
Dated:
Signature Guaranteed:
Address of transferee:
Social Security or other tax
identification number of transferee:
NOTE: The signature to this Assignment must correspond with the name as written on the face of
the within Certificate in every particular, without alteration or enlargement or any change
whatsoever.
(End of Form of Assignment)
A -5
(Form of Prepayment Panel)
The following installments of principal (or portions thereof) of this Certificate have been
prepaid in accordance with the terms of the Indenture authorizing the issuance of this Certificate.
Signature of
Date of Principal Authorized
Prepayment Prepaid Representative of DTC
(End of Form of Prepayment Panel)
A -6
(Form of Statement of Insurance)
MBIA Insurance Corporation (the "Insurer ") has issued a policy containing the
following provisions, such policy being on file at The Bank of Cherry Creek, N.A. in Denver,
Colorado, as Trustee.
The Insurer, in consideration of the payment of the premium and subject to the terms
of this policy, hereby unconditionally and irrevocably guarantees to any owner, as hereinafter
defined, of the following described obligations, the full and complete payment required to be made
by or on behalf of the Town of Avon, Colorado, to The Bank of Cherry Creek, N.A., in Denver,
Colorado, or its successor (the "Paying Agent ") of an amount equal to (i) the principal of (either at
the stated maturity or by any advancement of maturity pursuant to a mandatory sinking fund
payment) and interest on, the Obligations (as that term is defined below) as such payments shall
become due but shall not be so paid (except that in the event of any acceleration of the due date of
such principal by reason of mandatory or optional redemption or acceleration resulting from default
or otherwise, other than any advancement of maturity pursuant to a mandatory sinking fund
payment, the payments guaranteed hereby shall be made in such amounts and at such times as such
payments of principal would have been due had there not been any such acceleration); and (ii) the
reimbursement of any such payment which is subsequently recovered from any owner pursuant to
a final judgment by a court of competent jurisdiction that such payment constitutes an avoidable
preference to such owner within the meaning of any applicable bankruptcy law. The amounts
referred to in clauses (i) and (ii) of the preceding sentence shall be referred to herein collectively as
the "Insured Amounts." "Obligations" shall mean:
$2,345,000
Town of Avon Finance Authority
Certificates of Participation
in a Lease Purchase and Sublease Agreement, as amended,
Between the Town of Avon, Colorado and the
Town of Avon Finance Authority
Series 2000
Upon receipt of telephonic or telegraphic notice, such notice subsequently confirmed in writing by
registered or certified mail, or upon receipt of written notice by registered or certified mail, by the
Insurer from the Paying Agent or any owner of an Obligation the payment of an Insured Amount for
which is then due, that such required payment has not been made, the Insurer on the due date of such
payment or within one business day after receipt of notice of such nonpayment, whichever is later,
will make a deposit of funds, in an account with State Street Bank and Trust Company, N.A., in New
York, New York, or its successor, sufficient for the payment of any such Insured Amounts which
are then due. Upon presentment and surrender of such Obligations or presentment of such other
proof of ownership of the Obligations, together with any appropriate instruments of assignment to
evidence the assigmnent of the Insured Amounts due on the Obligations as are paid by the Insurer,
A -7
and appropriate instruments to effect the appointment of the Insurer as agent for such owners of the
Obligations in any legal proceeding related to payment of Insured Amounts on the Obligations, such
instruments being in a form satisfactory to State Street Bank and Trust Company, N.A., State Street
Bank and Trust Company, N.A. shall disburse to such owners or the Paying Agent payment of the
Insured Amounts due on such Obligations, less any amount held by the Paying Agent for the
payment of such Insured Amounts and legally available therefor. This policy does not insure against
loss of any prepayment premium which may at any time be payable with respect to any Obligation.
As used herein, the term "owner" shall mean the registered owner of any Obligation
as indicated in the books maintained by the Paying Agent, the Town, or any designee of the Town
for such purpose. The term "owner" shall not include the Town or any party whose agreement with
the Town constitutes the underlying security for the Obligations.
Any service ofprocess on the Insurer may be made to the Insurer at its offices located
at 113 King Street, Armonk, New York 10504, and such service of process shall be valid and
binding.
This policy is non - cancelable for any reason. The premium on this policy is not
refundable for any reason including the payment prior to maturity of the Obligations.
MBIA Insurance Corporation
(End of Form of Statement of Insurance)
A -8
EXHIBIT B
Legal Description
PART I
Lot 1B, a resubdivision of Lot 1, Svvift Gulch :addition. according to the Plat recorded July 22, 1998
at Reception No. 663529, County of Eagle, State of Colorado.
PART II
Parcel 1:
Units 1 -A, 1 -C, 1 -D, 2 -B, 2 -C, 2 -E and 2 -F, Sherwood Meadows, Phase 1,
according to the Condominium Map recorded January 24, 1980 in Book 297 at Page
857 and as defined and described in Condominium Declaration recorded February
13. 1980 in Book 298 at page 730 and Supplement recorded December 16, 1980 in
Book 314 at Page 825,
County of Eagle,
State of Colorado.
Parcel 2:
Units 3 -A, 3 -B, 4 -B and 4 -D, Sherwood Meadows, Phase 11, according to the
Condominium Map recorded December 16, 1980 in Book 314 at Page 827 and as
defined and described in Condominium Declaration recorded February 13, 1980 in
Book 298 at Page 730 and Supplement recorded December 16, 1980 in Book 314 at
Page 825,
County of Eagle ,
State of Colorado.
i
COLORADO UCC -1 FINANCING STATEMENT
iSee instructions on back)
Standard Form Effective May I, 1998
Total Fee = $15
IST DEBTOR
Name (Last, First): TOWN OF AVON FINANCE AUTHORITY
84- 1554102
SSN /FED Tax ID: Check One:
Street: 400 BENCHMARK ROAD Business
City, State, Zip: AVON, CO 81620 Individual
tnd DEBTOR (Put Additional Debtors on attachment)
name (Last, First):
3SN /FED Tax ID: Check One:
3treeC lusiness
-ity, State, Zip: Individual ❑
1" SECURED PARTY (Put Additional Secured Parties on attachment)
Jame (Last, First): TIIE BANK OF CHERRY CREEK, NATIONAL
ASSOCIATION AS TRUSTEE
itreet: 3033 EAST FIRST STREET
"itv: State, Zip: DENVER, CO 80206
6SIGNED PARTY (Put Additional Assigned Party on attachment)
Jame (Last, First):
itreet:
,itv, State, Zip:
tETURN COPY TO'
lame: DEE P. WISOR, ESQ.
SHERMAN & HOWARD L.L.C.
treet: 633 17TH STREET, SUITE 3000
'ity, State, Zip: DENVER, CO 80202
lame of the Record Owner of the real property containing
ie collateral is:
iee Instruction 13)
'OMPLETE DESCRIPTION OF COLLATERAL
3EE EXHIBIT A ATTACHED HERETO
G
ebtor Signature(s) (See Instru ion 14)
DWN OF AVON FINA CE AUTHORITY
):(:rye Hal r n
inted Name(s)
tESIDENT
tic
�Vs;?o
CHECK ONLY ONE (If no box is checked, it will be filed in UCC only)
p File in UCC ONLY
This statement is to be recorded in the real estate records
ONLY.
p This statement is to be filed in UCC AND recorded in the
real estate records. (Requires an additional recording fee).
The debtor is a transmitting utility.
FOR UCC FILINGS (Fill in collateral codes from UCC Codes)
010 015 030 034
575 600 500 650
700
FOR AGRICULTURAL LIEN NOTIFICATION
Check if this filing is intended as EFS notification
Enter EFS collateral code, County Code and crop years covered.
If all years are covered, leave from and to dates blank.
EFS Code County Code From To
(Use if collateral codes do not adequately describe collateral.
Attach additional pages if necessary)
M lzllz�a14,
Secured Party Signatures (See Instruction 14)
THE BANK OF CHERRY CREEK NATIONAL ASSOCIATION
Printed Names)
VICE PRESIDENT ),, -% CLS
Title
(303) 394 -5100 ;FAX: (303) 394 -5320 (303) 394 -5125
Contact Phone /FAX
EXHIBIT A
(1) All rights, title and interest of the Authority in, to and under the Lease Purchase
Agreement dated as of July 1, 1998, as amended (the "Lease ") between the Authority and the Town
of Avon, Colorado (the "Town ") other than the rights, title and interest of the Authority with respect
to certain payments or reimbursements to the Lessor thereunder for its costs, fees and expenses.
(2) All rights, title and interest of the Authority in, to and under the Ground Lease
Agreement dated as of July 1, 1998 (the "Ground Lease ") between the Authority and the Town.
(c) The Project and the Equipment, as defined in the Lease, as the same may be amended,
(subject to Permitted Encumbrances, as defined in the Lease).
(d) All Revenues and any other receipts receivable by or on behalf of the Authority
pursuant to the Lease including, without limitation, (i) all Base Rentals (as defined in the Lease) to
be received from the Town 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 (as defined in the Lease) 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.
(e) All moneys and securities from time to time held by the Trustee under the Indenture,
except as otherwise expressly provided therein and in the Lease, 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 Authority, 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 sarne subject to the
terms hereof.
COLORADO UCC -1 FINANCING STATEMENT
(See instructions on back)
Standard Form Effective May 1, 1998
Total Fee = $15
1sT DEBTOR
Name (Last, First): TOWN OF AVON FINANCE AUTHORITY
84- 1554102
SSN /FED Tax ID: - Check One:
Street: 400 BENCHMARK ROAD Business
City, State, Zip: AVON, CO 81620 Individual ❑
2nd DEBTOR (Put Additional Debtors on attachment)
Name (Last, First):
SSN /FED Tax ID: Check One:
Street: Business ❑
City, State, Zip: Individual ❑
1'' SECURED PARTY (Put Additional Secured Parties on attachment)
Name (Last, First): THE BANK OF CHERRY CREEK, NATIONAL
ASSOCIATION AS TRUSTEE
Street: 3033 EAST FIRST STREET
City: State, Zip: DENVER, CO 80206
ASSIGNED PARTY (Put Additional Assigned Party on attachment)
Name (Last, First):
Street:
City, State, Zip:
RETURN COPY TO
Name: DEE P. WISOR, ESQ.
SHERMAN & HOWARD L.L.C.
Street: 633 17 T STREET, SUITE 3000
City, State, Zip: DENVER, CO 80202
Name of the Record Owner of the real property containing
the collateral is:
(See Instruction 13)
COMPLETE DESCRIPTION OF COLLATERAL
*SEE EXHIBIT A ATTACHED HERETO
Debtor Signaturc(s)_ ee Instruction 14)
TOWN OF AVON FINANCE AUTHORITY
Terry Halverson
Printed Name(s)
PRESIDENT
Title
0/S
CHECK ONLY ONE (If no box is checked, it will be filed in UCC only)
❑ File in UCC ONLY
This statement is to be recorded in the real estate records
❑ ONLY.
❑ This statement is to be filed in UCC AND recorded in the
real estate records. (Requires an additional recording fee).
The debtor is a transmitting utility.
FOR UCC FILINGS (Fill in collateral codes from UCC Codes)
010 015 030 034
575 600 500 650
700
FOR AGRICULTURAL LIEN NOTIFICATION
Check if this filing is intended as EFS notification ❑
Enter EFS collateral code, County Code and crop years covered.
If all years are covered, leave from and to dates blank.
EFS Code County Code From To
(Use if collateral codes do not adequately describe collateral.
Attach additional pages if necessary)
Secured Party Signatures (See Instruction 14)
THE BANK OF CHERRY CREEK NATIONAL ASSOCIATION
VICE PRESIDENT
Printed Name(s)
� �y P�t � �t ��o�
Title
(303) 394 -5100 • FAX• (303) 394 -5320 (303) 394 -5125
Contact Phone /FAX
EXHIBIT A
(1) All rights, title and interest of the Authority in, to and under the Lease Purchase
Agreement dated as of July 1, 1998, as amended (the "Lease ") between the Authority and the Town
of Avon, Colorado (the "Town ") other than the rights, title and interest of the Authority with respect
to certain payments or reimbursements to the Lessor thereunder for its costs, fees and expenses.
(2) All rights, title and interest of the Authority in, to and under the Ground Lease
Agreement dated as of July 1, 1998 (the "Ground Lease ") between the Authority and the Town.
(c) The Project and the Equipment, as defined in the Lease, as the same may be amended,
(subject to Permitted Encumbrances, as defined in the Lease).
(d) All Revenues and any other receipts receivable by or on behalf of the Authority
pursuant to the Lease including, without limitation, (i) all Base Rentals (as defined in the Lease) to
be received from the Town 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 (as defined in the Lease) 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.
(e) All moneys and securities from time-to time held by the Trustee under the Indenture,
except as otherwise expressly provided therein and in the Lease, 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 Authority, 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.
� d
"OLORADO UCC -1 FINANCING STATEMENT
See instructions on back)
standard Form Effective May 1, 1998
'otal Fee = $15
ST DEBTOR
fame (Last, First): TOWN OF AVON, COLORADO
SN /FED Tax ID:
84- 0771088 Check One:
treet:
400 BENCHMARK ROAD Business
'ity, State, Zip:
AVON, CO 81620 Individual
❑
ad DEBTOR (Put Additional Debtors on attachment)
lame (Last, First):
SN/FED Tax ID:
Check One:
treet:
Business
❑
ity, State, Zip:
Individual
❑
'SECURED PARTY (Put Additional Secured Parties on attachment)
ame (Last, First): TOWN OF AVON FINANCE AUTHORITY
treet: 400 BENCHMARK ROAD
ity: State, Zip: AVON, CO 81602
SSIGNED PARTY (Put Additional Assigned Party on attachment)
ame (Last, First): THE BANK OF CHERRY CREEK,
NATIONAL ASSOCIATION, AS TRUSTEE
.reet: 3033 EAST FIRST AVENUE
ity, State, Zip: DENVER, CO 80206
ETURN COPY TO "
ame: DEE P. WISOR, ESQ.
SHERMAN & HOWARD L.L.C.
reet: 633 17TH STREET, SUITE 3000
ity, State, Zip: DENVER, CO 80202
ame of the Record Owner of the real property containing
e collateral is:
ee Instruction 13)
DMPLETE DESCRIPTION OF COLLATERAL
EE EXHIBIT A ATTACHED HERETO
btor Signature(s) (Se truction 4)
)WN OF AVON, LORAD
nted Name(s)
DY YODER, MAYOR
le
CHECK ONLY ONE (If no box is checked, it will be riled in UCC only)
❑ File in UCC ONLY
This statement is to be recorded in the real estate records
ONLY.
This statement is to be filed in UCC AND recorded in the
real estate records. (Requires an additional recording fee).
The debtor is a transmitting utility.
FOR UCC FILINGS (Fill in collateral codes from UCC Codes)
040 500 600
FOR AGRICULTURAL LIEN NOTIFICATION
Check if this Fling is intended as EFS notification r-1
Enter EFS collateral code, County Code and crop years covered.
If all years are covered, leave from and to dates blank.
EFS Code County Code From To
(Use if collateral codes do not adequately describe collateral.
Attach additional pages if necessary)
Qit� -
Secured Party ig tures (See Instruction 14)
TOWN OF AVON FINANCE AU Y
Printed Name(s)
Secretary
Title
f2701949-4280, FAX: (970) 949 -9139
Contact Phone /FAX
EXHIBIT A
(a) All Equipment, as defined in the Lease Purchase Agreement dated as of July 1, 1998 (the
Lease") between the debtor and the Town of Avon Finance Authority, and the proceeds thereof located on the real
)roperty described below or in any buildings or structures located on such real property and substitutions or
eplacements for such Equipment, subject to Permitted Encumbrances.
(b) All of debtor's rights, title and interest in and to all fixtures, equipment, machinery or other
angible property permanently affixed to the real property described below.
COLORADO UCC -1 FINANCING STATEMENT
(See instructions on back)
Standard Form Effective May 1, 1998
Total Fee = $15
IsT DEBTOR
Name (Last, First): TOWN OF AVON, COLORADO
SSN /FED Tax ID: 84- 0771088 Check One:
Street: 400 BENCHMARK ROAD Business
City, State, Zip: AVON, CO 81620 Individual ❑
2nd DEBTOR (Put Additional Debtors on attachment)
Name (Last, First):
SSN/FED Tax ID: Check One:
Street: Business
City, State, Zip: Individual U
P" SECURED PARTY (Put Additional Secured Parties on attachment)
Name (Last, First): TOWN OF AVON FINANCE AUTHORITY
Street: 400 BENCHMARK ROAD
City: State, Zip: AVON, CO 81602
ASSIGNED PARTY (Put Additional Assigned Party on attachment)
Name (Last, First): THE BANK OF CHERRY CREEK,
Name of the Record Owner of the real property containing
the collateral is:
(See Instruction 13)
COMPLETE DESCRIPTION OF COLLATERAL
*SEE EXHIBIT A ATTACHED HERETO
Debtor Signature( ee Instru on 4
TOWN OF AVO , COLORADO
Printed Name(s)
JUDY YO_ DER, MAYOR
Title
CHECK ONLY ONE (if no box is checked, it will be filed in UCC only)
File in UCC ONLY
This statement is to be recorded in the real estate records
U ONLY.
This statement is to be filed in UCC AND recorded in the
real estate records. (Requires an additional recording fee).
The debtor is a transmitting utility.
FOR UCC FILINGS (Fill in collateral codes from UCC Codes)
040 500 600
FOR AGRICULTURAL LIEN NOTIFICATION
Check if this filing is intended as EFS notification 17
Enter EFS collateral code, County Code and crop years covered.
If all years are covered, leave from and to dates blank.
EFS Code County Code From To
(Use if collateral codes do not adequately describe collateral.
Attach additional pages if necessary)
Secured Pkty Signatures (See Instruction 14)
TOWN OF AVON FINAN UTHORITY
Printed Name(s)
.Secretary
Title
(970) 949 -4280; FAX: (970) 949 -9139
Contact Phone /FAX
NATIONAL ASSOCIATION, AS TRUSTEE
Street:
3033 EAST FIRST AVENUE
City, State, Zip:
DENVER, CO 80206
RETURN COPY TO
Name:
DEE P. WISOR, ESQ.
SHERMAN & HOWARD L.L.C.
Street:
633 17TH STREET, SUITE 3000
City, State, Zip:
DENVER, CO 80202
Name of the Record Owner of the real property containing
the collateral is:
(See Instruction 13)
COMPLETE DESCRIPTION OF COLLATERAL
*SEE EXHIBIT A ATTACHED HERETO
Debtor Signature( ee Instru on 4
TOWN OF AVO , COLORADO
Printed Name(s)
JUDY YO_ DER, MAYOR
Title
CHECK ONLY ONE (if no box is checked, it will be filed in UCC only)
File in UCC ONLY
This statement is to be recorded in the real estate records
U ONLY.
This statement is to be filed in UCC AND recorded in the
real estate records. (Requires an additional recording fee).
The debtor is a transmitting utility.
FOR UCC FILINGS (Fill in collateral codes from UCC Codes)
040 500 600
FOR AGRICULTURAL LIEN NOTIFICATION
Check if this filing is intended as EFS notification 17
Enter EFS collateral code, County Code and crop years covered.
If all years are covered, leave from and to dates blank.
EFS Code County Code From To
(Use if collateral codes do not adequately describe collateral.
Attach additional pages if necessary)
Secured Pkty Signatures (See Instruction 14)
TOWN OF AVON FINAN UTHORITY
Printed Name(s)
.Secretary
Title
(970) 949 -4280; FAX: (970) 949 -9139
Contact Phone /FAX
EXHIBIT A
(a) All Equipment, as defined in the Lease Purchase Agreement dated as of July 1, 1998 (the
"Lease ") between the debtor and the Town of Avon Finance Authority, and the proceeds thereof located on the real
property described below or in any buildings or structures located on such real property and substitutions or
replacements for such Equipment, subject to Permitted Encumbrances.
(b) All of debtor's rights, title and interest in and to all fixtures, equipment, machinery or other
tangible property permanently affixed to the real property described below.