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TC Ord. No. 1995-15 Execution and delivery of a ground lease agreementORDINANCE NO. 95 -15 SERIES OF 1995 AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, AUTHORIZING AND DIRECTING THE EXECUTION AND DELIVERY OF A GROUND LEASE AGREEMENT AND A MAINTENANCE FACILITY LEASE PURCHASE AGREEMENT FOR THE PURPOSE OF ACQUIRING A MAINTENANCE FACILITY FOR THE TOWN AND RELATED INCIDENTALS AND APPURTENANCES; PROVIDING FOR THE REGISTRATION OF SAID LEASE; CREATING CERTAIN FUNDS RELATED THERETO; RATIFYING CERTAIN ACTIONS HERETOFORE TAKEN; REPEALING ANY ACTION HERETOFORE TAKEN IN CONFLICT HEREWITH; AND PROVIDING OTHER MATTERS PROPERLY RELATING THERETO. WHEREAS, the Town of Avon, Colorado (the "Town ") is a duly and regularly created, organized, and existing home rule municipal corporation, existing as such under and by virtue of Article XX of the constitution of the State of Colorado and the Town's home rule charter (the "Charter "); and WHEREAS, under Section 14.9 of the Charter, the Town is authorized to enter into lease and lease - purchase agreements in order to provide necessary land, buildings, equipment and other property for governmental or proprietary purposes; and WHEREAS, the Town Council (the "Council ") has heretofore determined, and hereby determines, that it is in the best interests of the Town and its inhabitants that a maintenance facility for the Town be acquired; and WHEREAS, the Town is currently the owner of certain real estate located in the Town (the "Site "); and WHEREAS, for the purpose of financing the acquisition and equipping of a new Maintenance Facility, the Town, as lessee, and LaSalle National Bank, Chicago, Illinois (the "Bank "), as lessor, enter into an annually terminable Maintenance Facility Lease Purchase Agreement dated as of September 27, 1995 (the "Lease ") and a Ground Lease dated as of September 27, 1995, in substantially the forms presented to the Council, to provide for the leasing by the Bank from the Town of the Site and by the Town from the Bank of the Maintenance Facility and related equipment (the "Project "); and WHEREAS, the Periodic Rentals (as defined in the Lease) payable by the Town under the Lease shall constitute currently budgeted expenditures of the Town, and shall not constitute a general obligation or other indebtedness of the Town nor a mandatory charge or requirement against the Town in any ensuing fiscal year beyond the then - current fiscal year; and WHEREAS, the Lease shall not directly or indirectly obligate the Town to make any payments beyond those appropriated for the Town's then - current fiscal year; and WHEREAS, there have been presented to the Council prior to final adoption of this ordinance (1) the proposed form of the Lease and (2) the proposed form of the Ground Lease. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO: Section 1. Necessity for Execution of Lease and Ground Lease. The Council has determined, and does hereby determine, that it is in the best interests of the Town and its inhabitants to execute the Lease and the Ground Lease as provided herein for the purpose of acquiring the Project. The Lease will be in an aggregate principal amount of $500,000. Section 2. Execution of Lease, Ground Lease and Other Documents• Appointment of Placement Agent. In order to provide funds for the purposes hereinabove set forth, the Town shall execute the Lease and the Ground Lease in substantially the form presented to the Council, with such changes as may be approved by the Town Manager. The Lease and the Ground Lease shall be executed in the name and on behalf of the Town with the manual signature of the Mayor of the Town, shall bear an impression of the seal of the Town, and shall be attested by manual signature of the Town Clerk. The Lease and the Ground Lease, when executed as provided herein, shall be delivered to the Bank for the purposes stated therein. The Town Clerk is hereby authorized and directed to attest all signatures and acts of any official of the Council in connection with the matters authorized by this ordinance. The Mayor or in the absence of the Mayor, the Mayor Pro -Tem, and the Town Clerk and other appropriate officials or agents of the Council or the Town, are hereby authorized to execute and deliver for and on behalf of the Town any and all additional certificates, documents, instruments and other papers, and to perform all other acts that they may deem necessary or appropriate, in order to implement and carry out the transactions and other matters authorized by this ordinance. The Council hereby appoints Coughlin & Company Inc. as Placement Agent with respect to the Lease and agrees to pay the Placement Agent a fee of $5,000 for placing the Lease with the Bank. Section 3. Registration: Paying Agent. The Lease shall be issued in fully registered form as to both principal and interest pursuant to Colorado Revised Statutes §§ 11 -57 -101 to -105, as amended. For purposes of payment of principal and interest, the registered owners of the Lease shall be the Bank. The Finance Director of the Town is hereby appointed paying agent and registrar (the "Paying Agent ") with respect to the Lease. The Paying Agent shall maintain or cause to be maintained an office where the Lease or any interest therein may be presented for registration, transfer, and exchange as provided therein. The Paying Agent shall maintain a register for the registration, transfer and exchange of the Lease as provided therein (the "Register "). The Paying -2- Agent shall make all payments specified in the Lease at the times and places specified in the Lease provided that the Town has provided the Paying Agent with moneys to make such payments. The Lease shall be transferable in accordance with its terms. No registration or transfer of the Lease or any interest therein shall be effective until entered on the Register. As to the Lease, the person or persons in whose name the same shall be registered for purposes of principal and interest payments shall be deemed and regarded as the absolute owner or owners thereof for all purposes except as otherwise provided in the Lease. Payment of or on account of the Lease shall be made only to the registered owner or owners thereof or his or their legal representative, but such registration may be changed as hereinabove provided. All such payments shall be valid and effectual to satisfy and discharge the liability upon such Lease to the extent of such sum or sums so paid. The Town and the Paying Agent may deem and treat the registered owner or owners of the Lease as the absolute owner or owners of such Lease whether such Lease shall be overdue or not, for the purpose of receiving payment thereof and for all other purposes whatsoever, and neither the Town nor the Paying Agent shall be affected by any notice to the contrary. Section 4. Establishment and Purpose of Debt Service Fund. The Town hereby establishes a fund of the Town designated as the 1995 Lease Debt Service Fund (the "Debt Service Fund "). All lawfully available moneys of the Town which are, in the sole discretion of the Town, identified and appropriated from time to time as moneys to be applied in payment of the Town's obligations under the Lease, shall be deposited in the Debt Service Fund and utilized for such purpose. Section 5. No Liability. The execution and delivery of the Lease and the Ground Lease and the adoption hereof shall not be construed as creating or constituting a debt or indebtedness of the Town nor a mandatory charge or requirement against the Town in any ensuing fiscal year beyond the current fiscal year within the meaning of any provision or limitation of the Constitution or laws of the State of Colorado, and shall not constitute nor give rise to a pecuniary liability of the Town or a charge against its general credit or taxing powers. The Town shall have no obligation to make any payments with respect to the Lease except in connection with the payment of the Periodic Rental (as defined in the Lease) and certain other payments under the Lease, which payments may be terminated by the Town in accordance with the provisions of the Lease. Section 6. Determinations by the Council. The Council hereby determines and declares that the Periodic Rentals do not exceed a reasonable amount so as to place the Town under an economic compulsion to renew the Lease or to exercise its option to purchase the Project pursuant to the Lease. The Board hereby determines and declares that the period during which the Town has an option to purchase the Project pursuant to the Lease does not exceed the useful life of the Project. Section 7. Designation of Lease. The Lease to be issued hereunder is hereby designated by the Town as a "qualified tax- exempt obligation" pursuant to Section 265(b)(3)(B) of the Internal Revenue Code of 1986, as amended (the "Code "). In this regard, the Town hereby represents and warrants that the reasonably anticipated amount of tax- exempt obligations which will -3- be issued by the Town and any subordinate entities during calendar year 1995 does not exceed $10,000,000. Section 8. Tax Covenants. The Town covenants for the benefit of the registered owner of the Lease that it will not take any action or omit to take any action with respect to the Lease, the proceeds thereof, any other funds of the Town or any facilities financed with the proceeds of the Lease (except for the possible exercise of the Town's right to terminate the Lease as provided therein) if such action or omission (i) would cause the interest on the Lease to lose its exclusion from gross income for federal income tax purposes under Section 103 of the Code, or (ii) would cause interest on the Lease to lose its exclusion from alternative minimum taxable income as defined in Section 55(b)(2) of the Code except to the extent such interest is required to be included in the adjusted net book income and adjusted current earnings adjustments applicable to corporations under Section 56 of the Code in calculating corporate alternative minimum taxable income, or (iii) would cause interest on the Lease to lose its exclusion from Colorado taxable income or Colorado alternative minimum taxable income under present Colorado law. Subject to the Town's right to terminate the Lease as provided therein, the foregoing covenant shall remain in full force and effect, notwithstanding the payment in full of the Lease, until the date on which all obligations of the Town in fulfilling the above covenant under the Code and Colorado law have been met. The Town further covenants that its investments of proceeds of the Lease, if any, shall be in compliance with the Tax Compliance Certificate executed by the Town in connection with the issuance of the Lease, and that the procedures set forth in the Tax Compliance Certificate implementing the above covenant shall be complied with to the extent necessary to maintain the above - described exclusions. Section 9. Application of Moneys Received from Bank. The moneys received from the Bank in connection with the execution of the Lease shall be used, with other available moneys of the Town, to pay the costs of acquiring the Project, including costs associated with execution of the Lease and the Ground Lease (including the fee of the Placement Agent). Section 10. Rights and Immunities. Except as otherwise provided herein, this ordinance shall not be interpreted to intend nor shall it be construed to confer upon or to give any person, other than the Town, the Paying Agent or the Bank, any right, remedy or claim under or by reason hereof or any covenant, condition or stipulation hereof. All the covenants, stipulations, promises and agreements herein contained by and on behalf of the Town shall be for the sole and exclusive benefit of the Town, the Paying Agent and the Bank. No recourse shall be had for the payment of the Town obligations under the Lease or for any claim based thereon or otherwise upon this ordinance or any other instrument pertaining hereto against any individual member of the Council, or any officer or other agent of the Town, past, present or future, either directly or indirectly through the Town, or otherwise, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any penalty or otherwise, all such in liability, if any, being by the acceptance of the Lease and as a part of the consideration of its issuance specifically waived and released. Section 11. Ratification. All actions not inconsistent with the provisions of this ordinance heretofore taken by the Town or its officers or directors and otherwise by the Town directed toward the execution and delivery of the Lease are hereby ratified, approved and confirmed. All actions heretofore taken by the Council relating to the acquisition of the Project and all other work incidental to the acquisition and installation thereof, are hereby ratified, approved and confirmed. Section 12. Severability. If any Section, paragraph, clause or provision of this ordinance shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of such section, paragraph, clause or provision shall not affect, impair or invalidate any of the remaining sections, paragraphs, clauses or provisions of this ordinance, the intention being that the same are severable. Section 13. Repealer. All acts, orders, bylaws and ordinances, and parts thereof, in conflict with this ordinance are hereby rescinded, except that this repealer shall not be construed so as to revive any act, order, bylaw or ordinance, or part thereof, heretofore repealed. Section 14. Disposition of Ordinance. This ordinance, as adopted by the Council, shall be numbered and recorded by the Town Clerk in the official records of the Town. The adoption and publication shall be authenticated by the signatures of the Mayor, or Mayor Pro Tem, and Town Clerk, and by the certificate of publication. Section 15. Effective Date. This ordinance shall be in full force and effect seven days after public notice following final passage. INTRODUCED, PASSED ON FIRST READING, APPROVED AND ORDERED POSTED, this 8th day of August, 1995, and a public hearing on this ordinance shall be held at the regular meeting of the Town Council of the Town of Avon, Colorado on the 22th day of August, 1995, at 7:30 p.m. in the Municipal Building of the Town of Avon, Colorado. TOWN OF AVON, COLORADO Mayor AT T: Town Clerk -5- INTRODUCED, PASSED ON SECOND READING, APPROVED AND ORDERED POSTED this 22nd day of August, 1995. APPROVED AS TO FORM: Town Attorney rot TOWN OF AVON, COLORADO Mayor STATE OF COLORADO ) COUNTY OF EAGLE ) SS TOWN OF AVON ) NOTICE IS HEREBY GIVEN OF A PUBLIC HEARING BEFORE THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO AT 7:30 P.M. ON THE 22ND DAY OF AUGUST, 1995, AT THE TOWN MUNICIPAL BUILDING FOR THE PURPOSE OF CONSIDERING THE ADOPTION OF ORDINANCE NO. 95 -15, SERIES OF 1995: AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, AUTHORIZING AND DIRECTING THE EXECUTION AND DELIVERY OF A GROUND LEASE AGREEMENT AND A MAINTENANCE FACILITY LEASE PURCHASE AGREEMENT FOR THE PURPOSE OF ACQUIRING A MAINTENANCE FACILITY FOR THE TOWN AND RELATED INCIDENTALS AND APPURTENANCES; PROVIDING FOR THE REGISTRATION OF SAID LEASE; CREATING CERTAIN FUNDS RELATED THERETO; RATIFYING CERTAIN ACTIONS HERETOFORE TAKEN; REPEALING ANY ACTION HERETOFORE TAKEN IN CONFLICT HEREWITH; AND PROVIDING OTHER MATTERS PROPERLY RELATING THERETO. A copy of said Ordinance is attached hereto, and is also on file at the office of the Town Clerk, and may be inspected during regular business hours. Following this hearing, the Council may consider final passage of this Ordinance. This notice is given and posted by order of the Town Council of the Town of Avon, Colorado Dated this 9th day of August, 1995. TOWN OF AVON, COLORADO i; Patty Ney art; CMC Town Cler POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF AVON ON AUGUST 9, 1995; AVON POST OFFICE IN THE MAIN LOBBY CITY MARKET IN THE MAIN LOBBY COASTAL MART, INC.; AND AVON MUNICIPAL BUILDING IN THE MAIN LOBBY GROUND LEASE AGREEMENT THIS GROUND LEASE AGREEMENT (this "Ground Lease ") dated as of September 25, 1995 entered into by and between the TOWN OF AVON, COLORADO (the "Town "), as lessor hereunder, a home rule municipal corporation organized under Article XX of the Constitution of the State of Colorado and the Charter of the Town, and LaSalle National Bank, Chicago, Illinois (the "Bank "), as lessee hereunder, a national banking association duly organized, existing and in good standing under the laws of the State of Illinois and the United States of America and also as lessor and sublessor under that certain Maintenance Facility Lease Purchase Agreement dated as of September 25, 1995, (the "Lease ") between the Town and the Bank. WITNESSETH: WHEREAS, the Town is a duly and regularly created, organized, and existing home rule municipal corporation, existing as such under and by virtue of Article XX of the constitution of the State of Colorado and the Town's home rule charter (the "Charter "); and WHEREAS, the Town Council (the "Council ") has heretofore determined, and hereby determines, that it is in the best interests of the Town and its inhabitants that a maintenance facility (the "Maintenance Facility ") be constructed and acquired within the Town and that the Town enter into this Lease to construct and acquire the Maintenance Facility; and WHEREAS, under Section 14.9 of the Charter, the Town is authorized to enter into lease - purchase agreements for the purchase, installation or acquisition of any real or personal property for public purposes: and WHEREAS, for purpose of providing for the acquisition of the Project, the Town and the Bank shall contemporaneously herewith enter into the Lease; and WHEREAS, the Bank is duly authorized to enter into the Lease, this Ground Lease and certain other documents for the purpose of providing funds to acquire the Maintenance Facility; and WHEREAS, the Town Council has adopted an ordinance authorizing and approving the execution and delivery of the Lease and this Ground Lease and certain actions to be taken by the Bank, including the acquisition of the Project; and WHEREAS, the Bank desires to lease the Site from the Town, and the Town desires to lease the Site to the Bank, pursuant to the terms and conditions 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 sum of One Dollar (S 1.00) paid in hand by the Bank: to the Town and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged. the parties hereto hereby agree as follows: ARTICLE I - DEFINITIONS Unless the context otherwise requires, all terms defined in the Lease shall have the same meaning in this Ground Lease. In addition, in this Ground Lease, "Rent" will have the following meanings at the following times: (a) During the original lease term or any renewal term (as defined in the Lease), "Rent" shall mean the sum of $1.00 and other valuable consideration, which has been paid by the Bank upon delivery of this Ground Lease as rent hereunder, for and in consideration of the interest in the Site conveyed to the Bank under the Ground Lease, and in consideration of the execution and delivery of the Lease. (b) Subsequent to termination of the Lease Tenn, and in the event that this Ground Lease is not yet terminated, if the Bank subleases the Site and the Maintenance Facility or any portion thereof, or sells an assignment of its interest in this Ground Lease, "Rent" shall mean _% of the gross proceeds of any such subleasing or sale; provided, however, that if such sublease or assignment is to the State, a political subdivision of the State, or to the federal government, "Rent" shall mean the sum of $1.00. ARTICLE II - REPRESENTATIONS AND WARRANTIES Section 2.1. Representations and Warranties of the Town. The Town represents and warrants for the benefit of the Bank as follows: (a) The Town is a home rule municipal corporation within the State duly organized and existing as such under Article XX of the Constitution of the State and the Charter. The Town has all requisite power and authority to enter into this Ground Lease and to carry out its obligations hereunder. The Town has duly authorized and approved the execution and delivery of this Ground Lease. (b) The Town has good and marketable fee simple title to the Site and has by this Ground Lease leased the Site to the Bank as hereinafter provided. It is understood by the parties hereto that the Bank shall have a leasehold interest in the Site. (c) Neither the execution and delivery hereof. nor the fulfillment of or compliance with the terms and conditions hereof, nor the consummation of the transactions contemplated hereby, conflicts with or results in a breach of the terms. conditions 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, charge or encumbrance whatsoever upon any of the property or assets of the Town, except the leasehold interest of the Bank in the Site. (d) 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 execute this Ground Lease or to otherwise comply with its obligations hereunder. Section 2.2. Representations and Warranties of the Bank. The Bank represents and warrants for the benefit of the Town, the Bank and the owners of the Certificates as follows: (a) The Bank is a national banking association, duly organized, existing and in good standing under the laws of the State of Illinois, is duly qualified to transact business in the State of Colorado, is not in violation of any provision of applicable laws or regulations, has the corporate power and authority to enter into this Ground Lease, and has duly authorized and approved the execution and delivery of this Ground Lease by all requisite corporate action. (b) The Bank, contemporaneously with the execution of this Ground Lease, will lease the Maintenance Facility and sublease the Site to the Town pursuant to the Lease. It is understood by the parties hereto that the Bank shall own the Maintenance Facility and shall have a leasehold interest in the Site. (c) Neither the execution and delivery hereof, nor the fulfillment of or compliance with the terms and conditions hereof, nor the consummation of the transactions contemplated hereby, conflicts with or results in a breach of the terms. conditions or provisions of any restriction or any agreement or instrument to which the Bank is now a party or by which the Bank is bound, or constitutes a default under any of the foregoing. (d) There is no litigation or proceeding pending, or to the knowledge of the Bank threatened, against the Bank or any other person affecting the right of the Bank to execute this Ground Lease or to comply with the provisions hereof. ARTICLE III - DEMISING CLAUSE, COVENANTS OF TITLE; OTHER MATTERS The Town demises and leases the Site to the Bank, and the Bank leases the Site from the Town, in accordance with the terms and provisions of this Ground Lease, to have and to hold for the term of this Ground Lease as provided in Article V hereof. Prior to the occurrence and continuance of a termination event pursuant to Section 8 of the Lease (except discharge of the Lease pursuant to Sections 813 or 8C thereof)(a "Termination Event "), the Bank will not mortgage or encumber the Project except pursuant to the Lease. Nothing in this Ground Lease shall be construed to require the Bank to operate the Project other than as the lessee hereunder and as lessor and sublessor under the Lease. The Town and the Bank acknowledge that the Town will be leasing the Maintenance Facility and subleasing the Site from the Bank pursuant to the Lease. The Town and the Bank intend that there be no merger of the Town's interests as lessee and sublessee under the Lease and the Town's ownership interest in the Site so as to cause the cancellation of this Ground Lease. ARTICLE IV - RENT PAYMENTS The Bank has paid to the Town, and the Town hereby acknowledges receipt of, the sum of One Dollar ($1.00), which sum shall, together with the financing of the Project to be leased to the Town pursuant to the Lease, constitute (i) consideration for the leasehold interest in the Site conveyed to the Bank under this Ground Lease from the date hereof until the occurrence and continuance of a Termination Event under the Lease; and (ii) consideration for the execution and delivery of the Lease. ARTICLE V - GROUND LEASE TERM Section 5.1. Commencement of Ground Lease Term. The term of this Ground Lease shall commence as of September 17, 1995 and shall terminate as provided in Section 5.2 hereof. Section 5.2. Termination of Ground Lease Term. Unless this Ground Lease shall have been renewed as provided hereinbelow in this Section, the term of this Ground Lease shall terminate on the earliest to occur of the following: (a) Discharge of the Lease as provided in Sections 8B or 8C of the Lease. (b) September 27, 2015. ME (c) A Termination Event, except as provided in subsection (a) of this Section, and the Bank's written election, in the sole and absolute discretion of the Bank, to terminate this Ground Lease. (d) An event of default under Section 9.1 of this Ground Lease and the Town's written election, in the sole and absolute discretion of the Town, to terminate this Ground Lease. The rights acquired by the Town upon termination of this Ground Lease pursuant to subsection (d) above shall be subject to the rights of any subsequent lessee or sublessee of the Site or the Maintenance Facility or any portion thereof pursuant to Section 12B of the Lease. Section 5.3. Disposition of Site. At the end of the term of this Ground Lease (which term shall extend through the renewal term or terms, if any), all right, title and interest of the Bank or any sublessee or assignee in and to the Site and the Maintenance Facility located thereon, including any and all improvements and fixtures which shall at the time be situated thereon or attached thereto, shall be vested in the Town and the Bank and any sublessee or assignee shall execute and deliver, upon request by the Town, any instrument of transfer, conveyance or release necessary or appropriate to confirm the vesting of such right, title and interest in the Town. Section 5.4. Limitation on Subleases and Assi nments. The term of any sublease of the Site and the Maintenance Facility or any portion thereof, or any assignment of the Bank's interest in this Ground Lease, pursuant to the Lease, shall not extend beyond 10 years following the last scheduled payment due date under the Lease. ARTICLE VI - ENJOYMENT OF SITE The Town hereby covenants to provide the Bank and its assigns, including the Bank and its sublessees and assigns, if any, during the term of this Ground Lease, with quiet use and enjoyment of the Site, and the Bank shall during the term of this Ground Lease peaceably and quietly have and hold and enjoy the Site, without suit, trouble or hindrance from the Town, except as expressly set forth herein or in the Lease. The rights of the Bank under this Article shall be subject to the rights of the Town under Section 4 of the Lease. The Town shall, at the request of the Bank or the Bank and at the expense of the Town, join in any legal action in which the Bank or the Bank asserts its ri ght to such possession and enjoyment, to the extent that the Town may lawfully do so. In addition, the Bank or the Bank may join in any legal action involving the Town and affecting the possession and enjoyment of the Site by the Bank or the Bank and shall be joined in any action affecting their rights or liabilities hereunder. Violation of this Article by the Town during the term of the Lease shall constitute an Event of Default under the Lease. -5- ARTICLE VII - MAINTENANCE. TAXES, OTHER CHARGES. INSURANCE Section 7.1. Taxes. Utilities. Prior to a Termination Event under the Lease, the payment of taxes and utility charges shall be governed by Section 14 of the Lease. After a Termination Event under the Lease and if this Ground Lease has not been terminated pursuant to Section 5.2 hereof, the Bank or its sublessee or assignee shall promptly pay or cause to be paid when due all taxes and assessments which may be imposed on the Site and the Maintenance Facility and all costs or charges for utility service supplied to the Site and the Maintenance Facility. Section 7.2. Maintenance. Prior to a Termination Event under the Lease, the maintenance of the Site and the Maintenance Facility shall be governed by Section 15 of the Lease. After a Termination Event under the Lease and if this Ground Lease has not been terminated pursuant to Section 5.2 hereof, the Bank or its sublessee or assignee shall maintain the Site and the Maintenance Facility in good condition and in good working order. Section 7.3. Insurance. Prior to a Termination Event under the Lease, the provisions of Section 16 of the Lease shall govern with respect to the maintenance of insurance with respect to the Site and the Maintenance Facility. After a Termination Event under the Lease and if this Ground Lease has not been terminated pursuant to Section 5.2 hereof, the Bank or its sublessee or assignee shall obtain and keep in force, at its own expense (i) comprehensive general public liability insurance against claims for personal injury, death or property damage occurring on the Site or the Maintenance Facility in an amount not less than $500,000, and (ii) fire and extended coverage insurance in an amount not less than the replacement cost of the Maintenance Facility (excluding foundations). All such insurance shall name the Bank, any sublessee or assignee and the Town as insureds. Proceeds of such fire and extended coverage insurance shall be payable to the Bank, any sublessee or assignee and the Town as their respective interests may appear. All such insurance policies shall provide that the insurance company shall not cancel such insurance without first giving at least 30 days' advance written notice to the Bank and the Town. Each insurance policy required by this Section shall contain a waiver of subrogation by the issuer of such policy with respect to the Bank, anv sublessee or assignee. and the Town, and their officers, agents and employees, while acting within the scope of their employment. Section 7.4. Advances by Town, Bank's Obligations Limited. In the event that the Bank or its sublessee or assignee shall fail to make any payments required by, or perform any of its obligations under Sections 7.1, 7.2 or 7.3 of this Ground Lease, the Town may (but shall be under no obligation to) make such payments or perform any of such obligations; and any payments so made or costs or expenses so incurred by the Town, together with interest thereon at the rate of 12% per annum, shall be reimbursed to the Town by any sublessee or assignee, or by the Bank from any proceeds of subleasing of the Site and the Maintenance Facility or any portion thereof or sale or assignment of its interest in this Ground Lease. Notwithstanding any other provision of this Article, anv obligations of the Bank to make payments under this Article or to pay Rent under this Ground Lease shall be limited to any proceeds of subleasing of the Site and leasing the Maintenance Facility W or any portion thereof or sale or assignment of its interest in this Ground Lease. No provision of this Article shall be construed to create any obligation to make any payments, nor any other obligation, on the part of the Bank. ARTICLE VIII - COMPLIANCE WITH REQUIREMENTS; OTHER COVENANTS Section 8.1. Further Assurances and Corrective Instruments. The Town and the Bank agree that they will, from time to time, execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, such supplements hereto and such further instruments as may reasonably be required for correcting any inadequate or incorrect description of the Site or for otherwise carrying out the intention hereof. Section 8.2. Use. Compliance with Laws. Waste. The Bank or its sublessee or assignee shall use the Site and the Maintenance Facility only in a careful, safe and proper manner and shall not use the Site or the Maintenance Facility in any manner or for any purpose prohibited by any applicable federal, State, county or municipal laws, ordinances, rules or regulations. The Bank or its sublessee or assignee shall not commit anv waste or nuisance on the Site or the Maintenance Facility. Section 8.3. Inspection. Access, Records. The Town shall have the right at reasonable business hours (or at any hour if necessary in an emergency) to enter upon the Site and in the Maintenance Facility for the purposes of inspecting the Site and the Maintenance Facility or performing obligations of the Bank or its sublessee or assignee under this Ground Lease which the Bank or its sublessee or assignee neglects to perform and which the Town elects to undertake. The Town agrees that, after a Termination Event under the Lease, and if this Ground Lease has not been terminated pursuant to Section 5.2 hereof, the Bank or any sublessee or assignee shall have full rights of ingress and egress to the Site and the Maintenance Facility, and the Town hereby agrees to execute and deliver any easements or rights -of -way that may be reasonably necessary to confirm such rights. The Town agrees that the Bank and their duly authorized agents shall have the right at all reasonable times to examine the books, records, reports and other papers of the Town with respect to the Site and the Maintenance Facility. The Bank or its sublessee or assignee agree that the Town and its duly authorized agents shall have the right at all reasonable times to examine the books, records, reports and other papers of the Bank or its sublessee or assignee with respect to the Site and the Maintenance Facility. The Town may, not more frequently than once in any twelve -month period, cause an audit to be made of the books, records, reports and other papers of the Bank or its sublessee or assignee with respect to the Site and the Maintenance Facility. Section 8.4. Corporate Existence. The Bank agrees that, during the term of this Ground Lease, it will maintain its corporate existence, will not dissolve or otherwise dispose of all or substantially all of its assets and will not consolidate with or merge into another corporation or -7- permit one or more other corporations to consolidate with or merge into it without prior written notice to the Town. ARTICLE IX - EVENTS OF DEFAULT AND REMEDIES Section 9.1. Events of Default Defined. An "event of default" under this Ground Lease and the terns "events of default" and "default" shall mean, subsequent to a Termination Event under the Lease, failure by the Bank or any sublessee or assignee to pay any Rent or any premiums for the liability insurance required under Section 7.3(i) of this Ground Lease, at the time when such Rent or premiums shall be due and payable and the continuation of such failure for a period of 30 days after the Town shall have notified the Bank of such failure. Section 9.2. Remedies on Default. Whenever any event of default referred to in Section 9.1 hereof shall have happened and is continuing, the Town shall have the right, at its option without any further demand or notice, to take whatever action at law or in equity may appear necessary or desirable to enforce its rights hereunder including, without limitation, the termination of the Bank's leasehold interest in the Site granted under this Ground Lease and the retaking of possession of the Site. Notwithstanding any other provision of this Article, recovery by the Town from the Bank in any action for amounts due and owing under Article IV or VII of this Ground Lease shall be limited to any proceeds of subleasing the Site and leasing the Maintenance Facility or any portion thereof or sale or assignment of the Bank's interest in this Ground Lease. Section 9.3. No Remedv Exclusive. Subject to the provisions of Section 9.2 of this Ground Lease, no remedy herein conferred upon or reserved to the Town is intended to be exclusive and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Ground Lease or now or hereafter existing at law or in equity. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. ARTICLE X - RESTRICTION ON CONVEYANCE Section 10.1. Restrictions on Mortgage or Sale of Site. Except as provided in the Lease, the Town and the Bank and any sublessee or assignee of the Bank agree that neither the Town, the Bank nor any sublessee or assignee of the Bank will sell, mortgage or encumber the Site or the Maintenance Facility or any portion thereof during the term of this Ground Lease. ARTICLE XI - MISCELLANEOUS Section 1 1.1. Damage, Destruction. Condemnation. The provisions of Section 16 of the Lease shall govern with respect to any damage, destruction or condemnation of the Site or the Maintenance Facility during the term of the Lease. After a Termination Event under the Lease, and if this Ground Lease has not been terminated pursuant to Section 5.2 hereof, if (i) the Site or the Maintenance Facility or any portion thereof is damaged or destroyed, in whole or in part, by fire or other casualty or (ii) title to or use of the Site or the Maintenance Facility or any part thereof shall be taken under the exercise (or in anticipation of such exercise) of the power of eminent domain, the Town and the Bank or its sublessee or assignee shall cause the net proceeds of any insurance claim or condemnation award (the "Net Proceeds ") to be applied to the prompt replacement, repair and restoration of the Site or the Maintenance Facility and any Net Proceeds remaining after such work has been completed shall be paid to the Bank or its sublessee or assignee. If the Net Proceeds are insufficient to pay the full cost of the replacement, repair and restoration, the Bank or its sublessee or assignee shall complete the work and pay any cost in excess of the Net Proceeds (provided, however, that any obligations of the Bank to make payments under this Section shall be limited to any proceeds of subleasing of the Site and the Maintenance Facility or any portion thereof or sale or assignment of its interest in this Ground Lease. The Town may, but shall not be required to, contribute to the cost of any such replacement, repair or restoration. Section 11.2. Notices. All notices, certificates or other communications hereunder shall be sufficiently given and shall be deemed given when delivered or mailed by first class mail, postage prepaid, addressed as follows: if to the Bank, 120 S. LaSalle Street, Room 600, Chicago, Illinois 60603; and if to the Town, Avon Town Hall, 400 Benchmark Road, P.O. Box 975, Avon, Colorado 81620, Attention: Town Manager. The Bank and the Town may, by notice given hereunder, designate any further or different addresses to which subsequent notices, certificates or other communications shall be sent. Section 11.3. Binding Effect. This Ground Lease shall inure to the benefit of and shall be binding upon the Bank, the Town and their respective successors and assigns, including, without limitation, the Bank and its successors and assigns. In the event that the Bank subleases the Site or any portion thereof, or sells an assignment of its interest in this Ground Lease, as provided in Section 18C of the Lease, the Bank shall require its sublessee or assignee to consent in writing to, and to undertake compliance with, all provisions of this Ground Lease. Section 11.4. Severabilitv. In the event any provision of this Ground 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 11.5. Amendments. Changes and Modifications. Except as otherwise provided in Section 8.1 hereof, this Ground Lease may not be effectively amended, changed, modified or altered without the prior written consent of the Bank. W Section 11.6. Execution in Counterparts. This Ground Lease may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. Section 11.7. Applicable Law. This Ground Lease shall be governed by and construed in accordance with the laws of the State of Colorado, without regard to conflict of laws principles. Section 11.8. Captions. The captions or headings in this Ground Lease are for convenience of reference only and in no way define, limit or describe the scope or intent of any provisions or sections of this Ground Lease. IN WITNESS WHEREOF, the Bank has caused this Ground Lease 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 Ground Lease to be executed in its name with its seal hereunto affixed and attested by its duly authorized officers, all as of the date first above written. [SEAL] Attest: By:_ Title: [SEAL] Attest: By - Town Cl rk LASALLE NATIONAL BANK, as lessee By:_ Title: TOWN OF AVON, COLORADO, as lessor , By y Mayo -10- STATE OF ILLINOIS ) ss. COUNTY OF COOK ) 1995 by as The foregoing instrument was acknowledged before me this day of September, and by and , respectively, of LaSalle National Bank. WITNESS my hand and official seal. Notary Public [SEAL] My commission expires: STATE OF COLORADO ) ss. TOWN OF AVON ) The foregoing instrument was acknowledged before me this -� k� day of 1995 by Albert J. Reynolds and by Patty Neyhart, as Mayor and Town Clerk, respectively, of the Town of Avon, Colorado, a Colorado municipal corporation. [SEAL] WITNESS my hand and official seal. \ 'L n, Notary P My commission expires: MT UJMMISSION EXPIRES 426-98 -11- ublic OP R1 qo0 t �T 9'; � -j r • �O Ic800- 00 � COLOPt EXHIBIT A Legal Description of the Site PARCEL A: THE S 1/2 OF THE NE 1/4 OF THE NE 1/4 OF SECTION 12, TOWNSHIP 5 SOUTH, RANGE 82 WEST OF THE 6TH PRINCIPAL MERIDIAN, COMMONLY REFERRED TO AS THE SWIFT GULCH ADDITION TO THE TOWN OF AVON, COUNTY OF EAGLE, STATE OF COLORADO. TOGETHER WITH ANY AND ALL INTEREST GRANTOR MAY HAVE IN AND TO THE SWIFT GULCH ROAD RIGHT OF WAY, EXCEPTING THEREFROM ANY PORTION OF LAND LYING WITHIN THE 1 -70 R.O.W. AND TRACT Y, A RESUBDIVISION OF LOTS 67, 68 AND A PORTION OF TRACT C, BLOCK 1, TOWN OF AVON, EAGLE COUNTY, COLORADO DESCRIBED IN FINAL SUBDIVISION PLAT - AMENDMENT NO. 4, BENCHMARK AT BEAVER CREEK, EAGLE COUNTY, COLORADO AND THE ROAD RIGHT -OF -WAY TO THE SWIFT GULCH ADDITION (A SPECIALLY PLANNED AREA) AND PARCELS 1 AND 2 THEREOF, TOWN OF AVON, COLORADO, THE S 1/2, NE 1/4, NE 1/4 SECTION 12, TOWNSHIP 5 SOUTH, RANGE 82 WEST OF THE 6TH PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT RECORDED NOVEMBER 5, 1982, IN BOOK 348 AT PAGE 296, TOGETHER WITH ANY AND ALL INTEREST GRANTOR MAY HAVE IN AND TO THE SWIFT GULCH ROAD RIGHT OF WAY, EXCEPTING THEREFROM THAT CERTAIN PORTION OF TRACT Y AS CONTAINED IN THE RULE AND ORDER RECORDED JANUARY 1, 1993 IN BOOK 599 AT PAGE 777, COUNTY OF EAGLE STATE OF COLORADO. PARCEL B: TRACT C, A RESUBDIVISION OF LOTS 67 -68 AND A PORTION OF TRACT C, BLOCK 1, TOWN OF AVON, EAGLE COUNTY COLORADO, DESCRIBED IN FINAL SUBDIVISION PLAT - AMENDMENT NO. 4, BENCHMARK AT BEAVER CREEK. EAGLE COUNTY, COLORADO AND THE ROAD RIGHT -OF -WAY TO THE SWIFT GULCH ADDITION (A SPECIALLY PLANNED AREA) AND PARCELS 1 AND 2 THEREOF, TOWN OF AVON, COLORADO, THE S 1/2, NE 1/4, NE 1/4 SECTION 12, TOWNSHIP 5 SOUTH, RANGE 82 WEST OF THE 6TH PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT RECORDED NOVEMBER 5, 1982, IN BOOK 348 AT PAGE 296, TOGETHER WITH ANY AND ALL INTEREST GRANTOR MAY HAVE IN AND TO THE SWIFT GULCH ROAD RIGHT OF WAY, COUNTY OF EAGLE State of Colorado m MAINTENANCE FACILITY LEASE PURCHASE AGREEMENT This Maintenance Facility Lease Purchase Agreement (the "Lease "), which is dated as of September 25, 1995, is made by and between LaSalle National Bank, Chicago, Illinois (the "Bank "), acting as lessor hereunder, and the Town of Avon, Colorado (the "Town "), as lessee hereunder, a political subdivision of the State of Colorado duly organized and existing under its home rule charter and the Constitution of the State of Colorado. WITNESSETH: WHEREAS, the Town is a duly and regularly created, organized, and existing home rule municipal corporation, existing as such under and by virtue of Article XX of the constitution of the State of Colorado and the Town's home rule charter (the "Charter "); and WHEREAS, the Town Council (the "Council ") has heretofore determined, and hereby determines, that it is in the best interests of the Town and its inhabitants that a maintenance facility (the "Maintenance Facility") be constructed and acquired within the Town and that the Town enter into this Lease to construct and acquire the Maintenance Facility; and WHEREAS, under Section 14.9 of the Charter, the Town is authorized to enter into lease - purchase agreements for the purchase, installation or acquisition of any real or personal property for public purposes; and WHEREAS, the Town is the owner of certain real estate located in the Town, described in Exhibit A hereto (the "Site "), which is suitable as a site for development of the Maintenance Facility; and WHEREAS, in order to provide for the financing of the Maintenance Facility on the Site. the Town has leased the Site to the Bank pursuant to a Ground Lease dated as of September 27, 1995 (the "Ground Lease "); and WHEREAS, the Bank has corporate power to lease and enter into agreements with any person or corporation, public or private; and WHEREAS, the Council has determined and herebv determines that it is in the best interest of the Town and its inhabitants that the Site be leased to the Bank pursuant to the Ground Lease, and that the Town and the Bank further enter into this Lease to provide for the subleasing by the Town from the Bank of the Site and the leasing by the Town of the Maintenance Facility constructed thereon, and any related equipment identified in Exhibit B hereto (the "Project "): and WHEREAS, the Periodic Rentals (as hereinafter defined) payable by the Town hereunder shall constitute currently budgeted expenditures of the Town, and shall not constitute a general obligation or other indebtedness of the Town nor a mandatory charge or requirement against the Town in any ensuing fiscal year beyond the then - current fiscal year: and WHEREAS, the Lease shall not directly or indirectly obligate the Town to make any payments beyond those appropriated for the Town's then - current fiscal year: and WHEREAS, the execution, performance, and delivery of this Lease have been authorized, approved, and directed by the Council by an ordinance duly adopted (the "Ordinance "); and WHEREAS, the execution, performance and delivery of this Lease have been authorized, approved, and directed by all necessary and appropriate actions of the Bank and its officers; and WHEREAS, the Town desires to lease and sublease the Project, as described in Exhibit A and Exhibit B hereto, from the Bank pursuant to the terms and conditions and for the purposes set forth herein; and WHEREAS, the Bank desires to lease and sublease the Project to the Town pursuant to the terms, covenants and conditions and for the purposes set forth herein; and NOW, THEREFORE, for and in consideration of the mutual covenants hereafter set forth, and for other good and valuable consideration, the Bank and the Town covenant and agree as follows: Section 1. Agreement to Purchase Maintenance Facility: Agreement to Lease and Sublease. The Bank hereby agrees that it will provide (or it will direct the placement agent to provide) to the Town moneys to allow the Town to construct and acquire the Project. The Bank further agrees that, pursuant to the Ground Lease and subject to the terms of this Lease, it will sublease the Site to the Town for the purpose of constructing and acquiring the Project thereon. The Town hereby agrees that, subject to the terms of this Lease, it will transfer title to the Maintenance Facility (including the fixed equipment described in Exhibit B) to the Bank in consideration for the provision of moneys with which to acquire the Project. The Maintenance Facility (including any fixed equipment described in Exhibit B) shall belong to and be the property of the Bank. Title to the Site will be held by the Town, subject to the terms of the Ground Lease and this Lease. The Town hereby agrees that in order to effectuate the purposes of this Lease, it will cooperate with the Bank and do all things necessary or proper for acquisition of the Project. The Bank demises and leases (and with respect to the Site, subleases) the Project to the Town, and the Town leases (and with respect to the Site, subleases) the Project from the Bank, in accordance with the provisions of this Lease, to have and to hold during the original lease term and each renewal term, if any, as described in Section 3 hereof. The Town and the Bank acknowledge that the Bank will be leasing the Site from the Town pursuant to the Ground Lease; and that the Town and the Bank intend that there be no merger of the Town's interests as lessee and sublessee under this Lease and the Town's ownership interest in the Site so as to cause cancellation of the Ground Lease. Section ?. Commencement. This Lease shall be effective as of the date of the Ground Lease (i.e., the date the Town leases the Site to the Bank) and interest on the Lease shall begin to accrue on the dated date of the Lease. Section 3. Duration of Lease; Town's Annual Right to Terminate. This Lease will continue until December 31, 1995 (hereafter referred to as the "original lease term "). Thereafter, this Lease may be extended for successive one -year periods (each hereafter referred to as a "renewal term "), until such time as shown in Exhibit C or until discharge of the Lease as provided in Section 5 hereof. The Town reasonably believes that it will have a need for the Maintenance Facility for the duration of the original term and all renewal terms provided under this Lease and that funds will be available and appropriated to make any original or renewal term payments required under this Lease; provided, however, this statement shall not be construed as contractually obligating the Town to continue the Lease. If for any reason the Town desires to terminate the Lease, the Town may terminate this Lease at the end of the original lease term or of any renewal term. The Town will notify the Bank in writing at least 30 days prior to the end of the original lease term or of any renewal term of its election to cancel this Lease; provided, however, that a failure to give such notice shall not constitute a default hereunder nor prevent the Town from terminating this Lease, nor result in any liability on the pan of the Town. The exercise of the Town's annual option to terminate this Lease shall be conclusively determined by whether or not the Council has, on or before December 31, specifically budgeted and appropriated moneys to pay all rentals for the ensuing fiscal year, as provided in Exhibit C hereto. The Town's Finance Director (or any other officer at any time charged with the responsibility of formulating budget proposals) is hereby directed to include, in the annual budget proposals submitted to the Council, items for all payments required under this Lease for the ensuing fiscal year, until such time (if any) as the Council may determine to terminate this Lease, it being the intention of the Council that any decision to terminate this Lease shall be made solelv by the Council and not by any other official of the Town. The Town's Finance Director (or any other officer at any time charged with the responsibility of formulating budget proposals) is hereby directed to budget the payment of amounts due under this Lease from the Town's general fund; however, this direction is not to be seen as requiring the Town to continue the Lease for any ensuing fiscal year. The Town shall in any event, whether or not the Lease is to be renewed, furnish the Bank with copies of its annual budget promptly after the budget is adopted. Section 4. Periodic Rental. During the term of this Lease, as rental payments on the Lease, the Town agrees to pay the amounts set forth in Exhibit C on or before the dates set forth in Exhibit C hereto (the "Periodic Rental "), subject to the Town's annual right to terminate the Lease. If the Town has not made the payments specified in Exhibit C on or before the dates set forth in Exhibit C, the Bank shall give the Town written notice (by facsimile transmission) that such payment has not been made. Such notice shall also state that if the payment is not made within five days, the Town will be in default under the Lease. The first Periodic Rental payment shall be for use of the Project from the commencement of the Lease (as provided in Section 2) until December 27, 1995. Each successive Periodic Rental shall be for use of the Project for each successive three - month period. The amounts set forth in Exhibit C will be paid to the Bank, by the Town, on the dates set forth in Exhibit C. A portion of each payment is paid as, and represents payment of. interest, and Exhibits C and D hereto set forth the interest component of each payment. The Town and the Bank acknowledge and agree that the Periodic Rentals hereunder shall constitute currently budgeted and appropriated expenditures of the Town. The Town's obligations under this Lease shall not constitute a mandatory charge or requirement in any ensuing fiscal year beyond the then current fiscal year. No provision of this Lease shall be construed or interpreted as creating a general obligation or other indebtedness of the Town within the meaning of any constitutional, statutory, or home rule charter debt limitation. No provision of this Lease shall be construed or interpreted as creating an unlawful delegation of governmental powers nor as a donation by or a lending of the credit of the Town within the meaning of Sections 1 or 2 of article XI of the Constitution of the State. This Lease shall not directly or indirectly obligate the Town to make any payments beyond those duly budgeted and appropriated for the Town's then current fiscal year. The Town shall be under no obligation whatsoever to exercise its option to purchase the Maintenance Facility. No provision of this Lease shall be construed to pledge or to create a lien on any class or source of Town moneys, nor shall any provision of this Lease restrict the future issuance of any Town bonds or obligations payable from any class or source of Town moneys. The Periodic Rental for the original term shall be due and payable by the Town on or before the first date specified in Exhibit. In the event that the Lease is extended for a renewal term, the Periodic Rental shall be determined by reference to Exhibit C and Exhibit D, for the period of any renewal term, and the rental payments shall be due and payable on or before the dates specified in Exhibit C and Exhibit D. If the Periodic Rental is not paid by the dates specified in Exhibit C, the Town will be liable to the maximum extent permitted by law for interest on any unpaid Periodic Rental at the rate of twelve percent (12 %) per annum from the dates. If at any time during the original lease term or any renewal term the Town Finance Directors is not acting as the Paying Agent, the Town hereby agrees to pay the Periodic Rentals to the Paying Agent five days before the dates specified in Exhibit C. The Paying Agent will then pay such moneys to the Bank on the dates specified in Exhibit C. All payments to be made by the Paying Agent to the Bank under this Lease shall be made at the Bank's address as specified in Section I SE hereof. or at such other place as the Bank may hereafter designate. The Periodic Rentals can be prepaid as described in the following section. -4- Section 5. Discharge of the Lease. A. Unon Final Periodic Rental Payment. When the Town makes the final Periodic Rental Payment as specified in Exhibit C hereto, the Lease will be discharged and the Town shall take title to the Maintenance Facility without any further payment being made by the Town. B. Upon Optional Prepayment of the Lease. On any Periodic Rental payment date on or after December 27, 1995, the Town may prepay the Periodic Rentals to the Bank and terminate the Lease by paying the then applicable purchase price (the "Purchase Option Price ") as specified in Exhibit D hereto. C. Upon Defeasance of the Periodic Rentals. The Lease shall, prior to the date on which the Town is permitted to optionally prepay the Lease (as specified in Section 5B), be deemed to have been paid within the meaning and with the effect expressed in this Section, if there shall have been deposited in trust either moneys in any amount which shall be sufficient, or direct obligations, or obligations, the principal and interest of which have been unconditionally guaranteed by the United States Govemment ( "Government Obligations "), which shall not contain provisions permitting the redemption thereof at the option of the issuer, the principal of and the interest on which when due, and without any reinvestment thereof, will provide moneys which, together with the moneys, if any, concurrently deposited in trust, shall be sufficient to pay when due the principal of, and interest due and to become due on the Lease on and prior to the final payment date hereof or on and prior to a date on which the Periodic Rentals can be prepaid (as selected by the Town). Neither the Government Obligations nor moneys deposited in trust pursuant to this Section or principal or interest payments on any such Government Obligations shall be withdrawn or used for any purpose other than, and shall be held in trust for, the payment of the principal of, and interest on the Lease; provided that any cash received from such principal or interest payments on such Government Obligations deposited in trust, if not then needed for such purpose, may, to the extent practicable, be reinvested in Government Obligations of the type described in this paragraph maturing at the times and in amounts sufficient to pay when due the principal of, and interest to become due on the Lease, on or prior to such date thereof. At such time as the Lease shall be deemed paid as aforesaid, the Bank shall no longer be secured by or entitled to the benefits of the Lease, except for the purpose of exchange and transfer and any payment from such moneys or Government Obligations deposited in trust. Prior to any discharge of the Lease becoming effective as specified in the preceding paragraph, there shall have been delivered to the Town and the Bank an opinion of bond counsel, addressed to the Bank and the Town to the effect that such defeasance will not constitute a violation by the Town of its tax covenant contained in the ordinance authorizing the execution of the Lease. D. Notice of Prepayment: Transfer of Title. If the Town elects to pay the Purchase Option Price. the Town shall direct the Paying Agent to so notify the Bank at least 30 days before the date on which the Town elects to exercise its purchase option or is prepaying the Lease. The notice shall specify the date the Town intends to prepay the Lease and the price, as specified in - 5 - Section 5. Discharge of the Lease. A. Upon Final Periodic Rental Payment. When the Town makes the final Periodic Rental Payment as specified in Exhibit C hereto, the Lease will be discharged and the Town shall take title to the Maintenance Facility without any further payment being made by the Town. B. Upon Optional Prepayment of the Lease. On any Periodic Rental payment date on or after December 27, 1995, the Town may prepay the Periodic Rentals to the Bank- and terminate the Lease by paying the then applicable purchase price (the "Purchase Option Price ") as specified in Exhibit D hereto. C. Upon Defeasance of the Periodic Rentals. The Lease shall, prior to the date on which the Town is permitted to optionally prepay the Lease (as specified in Section 513), be deemed to have been paid within the meaning and with the effect expressed in this Section, if there shall have been deposited in trust either moneys in any amount which shall be sufficient, or direct obligations, or obligations, the principal and interest of which have been unconditionally guaranteed by the United States Government ( "Government Obligations "), which shall not contain provisions permitting the redemption thereof at the option of the issuer, the principal of and the interest on which when due, and without any reinvestment thereof, will provide moneys which, together with the moneys, if any, concurrently deposited in trust, shall be sufficient to pay when due the principal of, and interest due and to become due on the Lease on and prior to the final payment date hereof or on and prior to a date on which the Periodic Rentals can be prepaid (as selected by the Town). Neither the Government Obligations nor moneys deposited in trust pursuant to this Section or principal or interest payments on any such Government Obligations shall be withdrawn or used for any purpose other than, and shall be held in trust for, the payment of the principal of, and interest on the Lease; provided that any cash received from such principal or interest payments on such Government Obligations deposited in trust, if not then needed for such purpose, may, to the extent practicable, be reinvested in Government Obligations of the type described in this paragraph maturing at the times and in amounts sufficient to pay when due the principal of, and interest to become due on the Lease, on or prior to such date thereof. At such time as the Lease shall be deemed paid as aforesaid, the Bank shall no longer be secured by or entitled to the benefits of the Lease, except for the purpose of exchange and transfer and any payment from such moneys or Government Obligations deposited in trust. Prior to any discharge of the Lease becoming effective as specified in the preceding paragraph, there shall have been delivered to the Town and the Bank an opinion of bond counsel, addressed to the Bank and the Town to the effect that such defeasance will not constitute a violation by the Town of its tax covenant contained in the ordinance authorizing the execution of the Lease. D. Notice of Prepayment, Transfer of Title. If the Town elects to pay the Purchase Option Price, the Town shall direct the Paving Agent to so notify the Bank at least 30 days before the date on which the Town elects to exercise its purchase option or is prepaying the Lease. The notice shall specify the date the Town intends to prepay the Lease and the price, as specified in -5- Exhibit D. at which the Town is permitted to exercise its option to prepay the Lease. In addition. if at any time the Town puts money in trust to pay off the Periodic Rentals when permitted, the Town shall so notify the Paying Agent and direct the Paying Agent to notify the Bank. The Bank hereby agrees to execute and deliver to the Town all necessary documents assigning, transferring and conveying good and marketable title to the Maintenance Facility, as it then exists, subject to any lien or encumbrance created by action of the Town at the time when the Lease is discharged as provided in this Section. The documents to be executed by the Bank shall include but not be limited to UCC termination statements. Section 6. Expression of the Town's Need for the Project: Determinations as to Fair Market Value and Fair Purchase Price. The Town hereby declares its current need for the Project. It is hereby declared to be the present intention and expectation of the Council that this Lease will not be terminated by the Town until title to the Maintenance Facility is acquired by the Town pursuant to this Lease; but this declaration shall not be construed as contractually obligating or otherwise binding the Town. The Town hereby determines that the Periodic Rentals to be paid hereunder during the term of the Lease do not exceed a reasonable amount so as to place the Town under an economic compulsion to renew this Lease or to exercise its option to purchase the Maintenance Facility hereunder. In making such determinations, the Town has given consideration to the estimated current value of the Maintenance Facility, the uses and purposes for which the Maintenance Facility will be employed by the Town, the benefit to the citizens and inhabitants of the Town by reason of the acquisition of the Maintenance Facility, the use of the Maintenance Facility pursuant to the terms and provisions of this Lease, the Town's option to purchase the Maintenance Facility, and the expected eventual vesting of title to the Maintenance Facility in the Town. The Town hereby determines and declares that the maximum term of this Lease does not exceed the useful life of the Maintenance Facility. In addition, the Town hereby determines that the duration of the Lease, including all optional renewal terms, does not exceed the weighted average useful life of the Maintenance Facility being financed. Section 7. Prohibition of Adverse Budget or Appropriation Modifications. The Town shall not, during any fiscal year of the Lease, make any budgetary transfers or other modifications to its then existing budget and appropriation measures relating to the Project or this Lease which would adversely affect the Town's ability to meet its obligation to pay rentals hereunder. Section 8. Termination. This Lease will terminate upon the earliest of any of the following events: A. The expiration of the original lease term or any renewal term of this Lease and the election of the Town to terminate this Lease pursuant to Section 3 above. B. Discharge of the Lease as provided in Section 5 above. Q C. Conveyance to the Town of the Maintenance Facility upon payment by the Town of all payments specified in Exhibit C hereto. D. A default by the Town, and Bank's election to terminate this Lease pursuant to Section 12. Section 9. Seto ff. The Town covenants it will not assert any right of setoff or counterclaim against its obligation to make payments as required by this Lease and the Exhibits hereto. Section 10. Security Interest. To secure the payment of all of the Town's obligations to the Bank under this Lease, the Town grants to the Bank a security interest in the Maintenance Facility and in all additions, attachments, accessions, and substitutions to or for the Maintenance Facility. The above security interest also includes proceeds. The Town agrees to execute such additional documents, including financing statements, affidavits, notices, and similar instruments, in form satisfactory to Bank, which the Bank deems necessary or advisable to establish and maintain its security interest in the Maintenance Facility. Section 11. Representations. Covenants. and Warranties. A. The Town represents. covenants, and warrants as follows: 1) The Town is a home rule town and a political subdivision existing under its Charter and the laws of the State of Colorado. 2) The Town is authorized by the Constitution and its Charter to enter into the transactions contemplated by this Lease and the Ground Lease, and to effect all of the Town's obligations under this Lease and the Ground Lease. The Council has duly authorized the execution and delivery of this Lease and the Ground Lease. 3) All requirements of the Town's Charter and the State Constitution have been complied with in connection with the authority of the Town to execute this Lease. 4) Nothing in this Lease shall be construed as unlawfully diminishing, delegating, or otherwise restricting any of the sovereign powers of the Town. Nothing in this Lease shall be construed to require the Town to operate the Maintenance Facility other than as a lessee, or to require the Town to exercise its right to purchase the Maintenance Facility as provided herein. 5) The leasing of the Maintenance Facility and the subleasing of the Site, under the terms and conditions provided for in the Lease, is necessary, convenient and in -7- furtherance of the Town's governmental purposes and is in the best interests of the citizens and inhabitants of the Town. 6) During the term of the Lease, the Maintenance Facility will at all times be used by the Town for the purpose of performing one or more lawful governmental functions of the Town. 7) The Town will use and maintain the Maintenance Facility in such a way as to keep the Maintenance Facility in good working order and in such a manner as to preserve all warranties and guarantees with respect to the Maintenance Facility. 8) The representations, covenants, warranties, and obligations set forth in this section are in addition to and are not intended to limit any other representations, covenants, warranties, and obligations set forth in this Lease. directly. 9) The Maintenance Facility will be operated by the Town B. The Bank represents, covenants, and warrants as follows: 1) The Bank is duly organized, existing and in good standing under the laws of the State of Illinois, is duly qualified to do business in the State of Colorado, has all necessary power to purchase the Maintenance Facility, to enter into the Ground Lease and this Lease and to own the Maintenance Facility, is possessed of full power to own and hold personal property and has duly authorized the execution and delivery of this Lease. 2) 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 Bank is now a party or by which the Bank is bound, or constitutes a default under any of the foregoing. 3) The Bank acknowledges and recognizes that this Lease will be terminated in the event that funds are not specifically budgeted and appropriated by the Town to continue paying all payments during the next occurring fiscal year, and that the acts of budgeting and appropriating funds are legislative acts and, as such, are solely within the discretion of the Town's Council. 4) During the term of this Lease, the Bank will provide the Town with the quiet use and enjoyment of the Project without suit, trouble, or hindrance from the Bank, except upon default by the Town, as set forth in this Lease. 5) The Town acknowledges that the Bank is not a manufacturer of or a dealer in the Maintenance Facility (or similar property) and has no responsibility for the condition of the Maintenance Facility. FOR PURPOSES OF THIS LEASE AND THE EXERCISE OF ANY OPTION TO PURCHASE THE PROPERTY EFFECTED UNDER THIS LEASE, THE BANK EXPRESSLY DISCLAIMS ANY WARRANTY WITH RESPECT TO THE CONDITION, QUALITY, DURABILITY, SUITABILITY, OR MERCHANTABILITY OF THE MAINTENANCE FACILITY IN ANY RESPECT, AND ANY OTHER REPRESENTATION, WARRANTY, OR COVENANT, EXPRESS OR IMPLIED. THE BANK WILL NOT BE LIABLE TO THE TOWN FOR ANY LIABILITY, LOSS, OR DAMAGE CAUSED OR ALLEGED TO BE CAUSED, DIRECTLY OR INDIRECTLY, BY ANY INADEQUACY, DEFICIENCY, OR DEFECT IN THE MAINTENANCE FACILITY, OR BY ANY USE OF THE MAINTENANCE FACILITY, WHATSOEVER. 6) At its option, the Bank may require plates or markings to be affixed to or placed on the Maintenance Facility indicating the Bank is the owner and that the Maintenance Facility is subject to this Lease. The Bank and its duly authorized agents shall have the right to inspect the Maintenance Facility and shall have such rights or access as are reasonably necessary to perform such inspections. Section 12. Default. A. The Town will be in default under this Lease upon the occurrence of any one or more of the following events: 1) The Town shall fail to make any lease payment on or before any date specified in Exhibit C hereto, for the original term or any renewal term (unless the Lease has theretofore been terminated by the Town) and five days shall pass after the Town has received written notice from the Bank of such failure; or 2) The Town shall fail to keep any other term, covenant, or condition contained herein and such failure shall continue for 15 business days after written notice thereof to the Town by the Bank; or 3) The Town comes within the jurisdiction of any court as debtor under any bankruptcy, reorganization, or similar law, whether or not such law is in existence on the date this Lease commences. B. To the maximum extent permitted by law, upon any event of default, the Bank shall pursue any one or more of the following remedies (which will be exercisable cumulatively and concurrently or separately): 1) Terminate this Lease, repossess the Maintenance Facility, and lease or sublease (free and clear of any interest of the Town in the Maintenance Facility) all or any portion of the Site and the Maintenance Facility to such other persons as Bank may elect, including an assignment of its interest in the Ground Lease, applying the proceeds of any such lease or sublease (after deducting the Bank's costs of repossessing, repairing, leasing or subleasing the Project, including attorneys' fees) against any rent unpaid for the remainder of the original or renewal term then in effect. 2) Terminate this Lease, repossess the Maintenance Facility, and sell (free and clear of any interest of the Town in the Maintenance Facility) all or any portion of the Maintenance Facility at any public or private sale (including the sale of an assignment of the Bank's interest in the Ground Lease) without demand or notice of intention to sell, applying the proceeds of such sale (after deducting the costs of repossessing, repairing and selling the Maintenance Facility, including attorneys' fees) against any rent unpaid for the remainder of the original or renewal term then in effect. 3) Any remedy available at law or in equity. C. With respect to all of the remedies of Section 12, the Town expressly waives any damages occasioned by Bank's repossession of the Maintenance Facility. Section 13. Net Lease. A. This Lease for all purposes will be treated as a net lease. B. The Town agrees to pay, to the extent that such are lawfully required, all license, sales, use, personal property, and other taxes and fees, together with any penalties, fines, and interest on such taxes and fees imposed or levied with respect to the Project and the ownership, delivery, lease, possession, use, operation, sale, and other disposition of the Maintenance Facility, except federal or state income taxes, if any, payable by the Bank on such rental or earnings. The Town may in good faith and by appropriate proceedings contest any such taxes and fees so long as such proceedings do not involve any danger of sale, forfeiture, or loss of the Maintenance Facility or of any interest in the Maintenance Facility. C. The Town will provide all permits and licenses necessary for the installation, operation, and use of the Maintenance Facility. The Town will comply with all laws, rules, regulations, and ordinances applicable to the installation, use, possession, and operation of the Maintenance Facility. If compliance with any law, rule, regulation, ordinance, permit, or license requires changes or additions to be made to the Maintenance Facility, such changes or additions will be made by the Town at its own expense. Section 14. Utilities. The Town will pay all charges for gas, water, steam, electricity, light, heat or power, telephone, or other utilities furnished to or used in connection with the Project (including charges for installation of such services) during the original term or any -10- renewal term of this Lease. There will be no abatement of rent on account of the interruption of any such services. Section 15. Use. Repairs. Alterations. and Liens. A. The Town will not install, use, operate, or maintain Project improperly, carelessly, in violation of any applicable law, or in a manner contrary to that contemplated by this Lease. B. The Town at its own cost will service, repair, and maintain the Project so as to keep the Project in as good condition, repair, appearance, and working order as when delivered to and accepted by the Town under this Lease, ordinary wear and tear excepted. At its own cost, the Town will replace any and all parts and devices which may from time to time become worn out, lost, stolen, destroyed, damaged beyond repair, or rendered unfit for use for any reason whatsoever. All such replacement parts, mechanisms, and devices will be free and clear of all liens, encumbrances, and rights of others, and immediately will become a part of the Project and will be covered by this Lease to the same extent as the Project originally covered by this Lease. C. The Town may install such miscellaneous equipment on the Site or the Maintenance Facility as may be necessary for use of the Project for its intended purposes so long as the installation of such equipment does not alter the function or manner of operation of the Site or the Maintenance Facility. Without the prior written consent of Bank, the Town will not make any other alterations, changes, modifications, additions, or improvements to the Site or the Maintenance Facility except those needed to comply with the Town's obligations to change, add to, or repair the Project as set forth in Section 13C or Section 15B. Any alterations, changes, modifications, additions, and improvements made to the Site or the Maintenance Facility immediately will become a part of the Project and will be covered by the Ground Lease and this Lease to the same extent as the Project originally covered by the Ground Lease and this Lease, and upon termination of this Lease shall remain a part of the Project. D. The Town will not directly or indirectly create, incur, assume, or suffer to exist any mortgage, pledge, lien, charge, encumbrance, or claim on or with respect to the Project or any interest in the Project, other than as permitted by Sections 10 and 13. The Town promptly and at its own expense will take such action as may be necessary to duly discharge any mortgage, pledge, lien, charge, encumbrance, or claim if the same arises at any time, other than as permitted by Sections 10 and 13. Section 16. Insurance. and Damage to or Destruction of the Project. A. The Town at its own cost will cause public liability insurance and property damage insurance to be carried and maintained on the Project, with all such coverages to be in such amounts sufficient to cover the value of the Project at the commencement of this Lease (as determined by the purchase price paid by the Bank for the Project), and to be in such forms, and with such insurers, as are acceptable to the Bank. The Town will cause the Bank to be the named insured on such policies as the Bank's interests under this Lease may appear. Insurance proceeds from property damage losses will be payable to the Bank to the extent of the Bank's interest at the time of its damage or destruction to be determined based upon the balance of the Lease at the time of any such loss. Notwithstanding the foregoing, proceeds of property damage insurance can be used by the Town to repair or replace the Project, and proceeds so used shall be paid to the Town rather than to the Bank. The Town will deliver to Bank the policies or evidences of insurance satisfactory to Bank, together with receipts for the initial premiums at the time of execution of the Lease. In the alternative, the Town can provide evidence to the Bank that the Town's current policies cover, or have been amended to cover, the Project in compliance with the requirements set out in this Section. Renewal policies, together with receipts showing payment of the applicable premiums, will be delivered to Bank at least 30 days before termination of the policies being renewed. By endorsement upon the policy or by independent instrument furnished to Bank, each insurer will agree that it will give Bank at least 30 days written notice prior to cancellation or alteration of the policy. B. If all or any part of the Project is lost, stolen, destroyed, or damaged, the Town will give the Bank prompt notice of such event and will repair or replace the same with proceeds of insurance within 60 days after such event, and any replaced Project will be substituted in this Lease by appropriate endorsement. All insurance proceeds received by Bank under the policies required under Section 16A with respect to the Project lost, stolen, destroyed, or damaged, will be paid to the Town if the Project is repaired or replaced by the Town as required by this Section. If the Town fails, is unable with insurance proceeds or refuses to make the required repair or replacement, such proceeds will be credited against the amount owed by the Town to the Bank, as determined under Exhibit C. The Town assumes all risks and liabilities, and will maintain adequate insurance to cover all risks and liabilities, for loss, theft, destruction, or damage to the Project and for injuries or deaths of persons and damage to the Project and for injuries or deaths of persons and damage to other property however arising, whether such injury or death be with respect to agents or employees of the Town or of third parties, and whether such damage to property is to the Town's property or to the property of others. Section 17. Return of Equipment: Conveyance of Project. Upon the termination of the Lease, the Town will immediately relinquish all rights in the Project and allow the Bank to take possession of the same; except that if and when all payments under the Lease have been made as provided in Exhibit C hereof, title to the Project will pass to the Town as set forth in Section 5A. If the Town terminates the Lease pursuant to the provisions of Section 3 of the Lease, such termination shall not constitute an event of default under this Lease and Bank's only recourse shall be repossession of the Project. Section 18. Contractor's Bond. The Town hereby agrees to provide the Bank with a copy of the public works contractors bond executed by Continental West Contractors in connection with the Project. In addition, the Town hereby agrees to provide the Bank with copies of all notices of final settlement for the work contracted to be done upon completion of the Project. -12- Section 19. Miscellaneous. A. During the original lease term or any renewal term, the Town shall furnish the Bank with the Town's audited financial statement for the prior fiscal year as soon as such statement is available. B. This Lease may not be assigned by the Town for any reason. However, the Project may be subleased by the Town, as a whole or in part, without the necessity of obtaining the consent of the Bank, as specified in the succeeding sentence. The Project may be subleased, in whole or in part, only to an agency or department or political subdivision of the State, or to another entity or entities if, in the opinion of nationally recognized bond counsel, such sublease will not adversely affect the exclusion from gross income of the interest on the Lease under the Code and applicable regulations, rulings, and decisions. C. The Bank may assign or transfer its interest in the Lease by having the assignee or transferee sign an assignment by which such assignee or transferee agrees to be bound by the provisions of the Lease. The Assignment shall be sent to the Paying Agent and the Paying Agent shall enter such assignment on its registration books. The Bank must pay the Paying Agent's reasonable charges in connection with the assignment or transfer. From the date of receipt of notice of such assignment or transfer, the Paying Agent will make payments which would have been paid to the assignor or transferor directly to the assignee or transferee (as its interests may appear), unless otherwise directed by the assignee or transferee, and, within 30 days of such assignment or transfer, the Paying Agent will acknowledge the same to the assignee or transferee. Any payments made in accordance with such assignment or transfer will relieve the Town of all liability to the Bank for such payments. The Paying Agent shall send the Town a copy of any assignment of the Lease which the Paying Agent receives, within seven business days of such receipt. D. If the Town fails to make any payment or fails to satisfy any representation, covenant, warranty, or obligation during the continuation of this Lease, the Bank may (but need not) make such payment or satisfy such representation, covenant, warranty, or obligation, and the amount of such payment and any expenses incurred by the Bank, as the case may be, will be deemed to be additional rent payable by the Town on Bank's demand. E. All notices under this Lease will be mailed or delivered: 1) if to the Town, at Avon Town Hall, P.O. Box 975, 400 Benchmark Road, Avon, Colorado 81620, Attention: Town Manager; and 2) if to Bank, at 120 S. LaSalle Street, Room 600, Chicago, Illinois, 60603, until either the Town or Bank gives written notice to the other specifying a different address. -13- F. All payments by the Town will be made to the Paying Agent, who will pay such amounts to the Bank at the addresses specified above, by check, or by other manner acceptable to the Bank. G. No breach by the Town in the satisfaction of any representation, covenant, warranty, or obligation may be waived except by the written consent of Bank and any such waiver will not operate as a waiver of any subsequent breach. H. Any provision in this Lease which is prohibited by law will be treated as if it never were a part of this Lease, and the validity of the remaining terns of this Lease will be unaffected. I. This Lease (including the attached Exhibits), the Ground Lease and any attachments thereto and the Ordinance of the Council authorizing the execution of the Ground Lease and this Lease constitute the entire agreement between the Bank and the Town and supersede any prior agreement between the Bank and the Town with respect to the Project, except as is set forth in any addendum which is made a part of this Lease and which is signed by the Bank. The Bank shall only agree to an addendum or amendment to this Lease as provided in paragraph J below. J. This Lease may be amended only by a written document signed by the Bank. K. This Lease is binding upon and inures to the benefit of Bank and the Town and their respective successors and assigns. L. This Lease is governed by the laws of the State of Colorado. M. Notwithstanding any other provision of this agreement, the agreement is intended and shall create only the relationship of lessor and lessee. N. Headings used in this Lease are for convenience of reference only and the interpretation of this Lease will be governed by the text only. -14- IN WITNESS WHEREOF, the Bank and the Town have caused this Agreement to be executed in their respective corporate names and attested by their duly authorized officers, all as of the date first above written. (SEAL) LASALLE NATIONAL BANK Attest: By: By: Title: Title: (SEAL) i A ee By: Title: Town Clerk -15- TOWN OF AVON, COLORADO B Y : Title: Mayor U EXHIBIT A Legal Description of Site PARCEL A: THE S 1/2 OF THE NE 1/4 OF THE NE 1/4 OF SECTION 12, TOWNSHIP 5 SOUTH, RANGE 82 WEST OF THE 6TH PRINCIPAL MERIDIAN, COMMONLY REFERRED TO AS THE SWIFT GULCH ADDITION TO THE TOWN OF AVON, COUNTY OF EAGLE, STATE OF COLORADO, TOGETHER WITH ANY AND ALL INTEREST GRANTOR MAY HAVE IN AND TO THE SWIFT GULCH ROAD RIGHT OF WAY, EXCEPTING THEREFROM ANY PORTION OF LAND LYING WITHIN THE 1 -70 R.O.W. AND TRACT Y, A RESUBDIVISION OF LOTS 67, 68 AND A PORTION OF TRACT C, BLOCK 1, TOWN OF AVON, EAGLE COUNTY, COLORADO DESCRIBED IN FINAL SUBDIVISION PLAT - AMENDMENT NO. 4, BENCHMARK AT BEAVER CREEK, EAGLE COUNTY, COLORADO AND THE ROAD RIGHT -OF -WAY TO THE SWIFT GULCH ADDITION (A SPECIALLY PLANNED AREA) AND PARCELS 1 AND 2 THEREOF, TOWN OF AVON, COLORADO, THE S 1/2, NE 1/4, NE 1/4 SECTION 12, TOWNSHIP 5 SOUTH, RANGE 82 WEST OF THE 6TH PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT RECORDED NOVEMBER 5, 1982, IN BOOK 348 AT PAGE 296, TOGETHER WITH ANY AND ALL INTEREST GRANTOR MAY HAVE IN AND TO THE SWIFT GULCH ROAD RIGHT OF WAY, EXCEPTING THEREFROM THAT CERTAIN PORTION OF TRACT Y AS CONTAINED IN THE RULE AND ORDER RECORDED JANUARY 1, 1993 IN BOOK 599 AT PAGE 777, COUNTY OF EAGLE STATE OF COLORADO. PARCEL B: TRACT C, A RESUBDIVISION OF LOTS 67 -68 AND A PORTION OF TRACT C. BLOCK 1, TOWN OF AVON, EAGLE COUNTY COLORADO, DESCRIBED IN FINAL SUBDIVISION PLAT - AMENDMENT NO. 4, BENCHMARK AT BEAVER CREEK, EAGLE COUNTY, COLORADO AND THE ROAD RIGHT -OF -WAY TO THE SWIFT GULCH ADDITION (A SPECIALLY PLANNED AREA) AND PARCELS 1 AND 2 THEREOF, TOWN OF AVON, COLORADO, THE S 1/2, NE 1/4, NE 1/4 SECTION 12, TOWNSHIP 5 SOUTH, RANGE 82 WEST OF THE 6TH PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT RECORDED NOVEMBER 5, 1982, IN BOOK 348 AT PAGE 296, TOGETHER WITH ANY AND ALL INTEREST GRANTOR MAY HAVE IN AND TO THE SWIFT GULCH ROAD RIGHT OF WAY, COUNTY OF EAGLE State of Colorado A -1 EXHIBIT B Description of Project and Equipment [TO COME] EXHIBIT C Periodic Rentals Periodic Rental Periodic Rental Payment Periodic Rental Principal Interest Date Payment Component Component ----------------- - - - - -- 12/25/95 -------------------- - - - - -- 16,851.16 -------------------- - - - - -- 9,126.16 -------------------------- 7,725.00 3/25/96 16,851.16 9,267.16 7,584.00 6/25/96 16,851.16 9,410.34 7,440.82 9/25/96 16,851.16 9,555.72 7,295.43 12/25/96 16,851.16 9,703.36 7,147.80 3/25/97 16,851.16 9,853.28 6,997.88 6/25/97 16,851.16 10,005.51 6,845.65 9/25/97 16,851.16 10,160.10 6,691.06 12/25/97 16,851.16 10,317.07 6,534.09 3/25/98 16,851.16 10,476.47 6,374.69 6/25/98 16,851.16 10,638.33 6,212.83 9/25/98 16,851.16 10,802.69 6,048.47 12/25/98 16,851.16 10,969.59 5,881.57 3/25/99 16,851.16 11,139.07 5,712.08 6/25/99 16,851.16 11,311.17 5,539.99 9/25/99 16,851.16 11,485.93 5,365.23 12/25/99 16,851.16 11,663.39 5,187.77 3/25/00 16,851.16 11,843.59 5,007.57 6/25/00 16,851.16 12,026.57 4,824.59 9/25/00 16,851.16 12,212.38 4,638.78 12/25/00 16,851.16 12,401.06 4,450.10 3/25/01 16,851.16 12,592.66 4,258.50 6/25/01 16,851.16 12,787.22 4,063.94 9/25/01 16,851.16 12,984.78 3,866.38 12/25/01 16,851.16 13,185.39 3,665.77 3/25/02 16,851.16 13,389.11 3,462.05 6/25/02 16,851.16 13,595.97 3,255.19 9/25/02 16,851.16 13,806.03 3,045.13 12/25/02 16,851.16 14,019.33 2,831 .83 3/25/03 16,851.16 14,235.93 2,615.23 6/25/03 16,851.16 14,455.87 2,395.29 9/25/03 16,851.16 14,679.22 2,171.94 12/25/03 16,851.16 14,906.01 1,945.15 3/25/04 16,851.16 15,136.31 1,714.85 6/25/04 16,851.16 15,370.16 1,480.99 9/25/04 16,851.16 15,607.63 1,243.53 12/25/04 16,851.16 15,848.77 1,002.39 3/25/05 16,851.16 16,093.63 757.52 6/25/05 16,851.16 16,342.28 508.88 9/25/05 •----------- - - - - -- -------------------- 16,851.16 16,594.77 256.39 - - - - -- -------------------- 674,046.34 - - - - -- ------------------------- 500,000.00 174,046.34 EXHIBIT D Purchase Option Price Date Purchase Option Price Premium ----------------- - - - - 12/25/95 -- --------------------------- - - - - -- --------------------------------- 500,394.23 101.9395% 3/25/96 490,736.24 101.8956% 6/25/96 480,939.42 101.8516% 9/25/96 471,001.76 101.8073% 12/25/96 460,921.25 101.7627% 3/25/97 450,695.84 101.7179% 6/25/97 440,323.43 101.6729% 9/25/97 429,801.92 101.6276% 12/25/97 419,129.17 101.5821% 3/25/98 408,302.99 101.5364% 6/25/98 397,321.19 101.4904% 9/25/98 386,181.52 101.4442% 12/25/98 374,881.72 101.3977% 3/25/99 363,419.49 101.3510% 6/25/99 351,792.49 101.3041% 9/25/99 339,998.34 101.2569% 12/25/99 328,034.66 101.2094% 3/25/00 315,899.00 101.1618% 6/25/00 303,588.89 101.1139% 9/25/00 291,101.82 101.0657% 12/25/00 278,435.25 101.0174% 3/25/01 265,586.60 100.9688% 6/25/01 252,553.25 100.9199% 9/25/01 239,332.55 100.8708% 12/25/01 225,921.79 100.8215% 3/25/02 212,318.26 100.7719% 6/25/02 198,519.18 100.7221% 9/25/02 184,521.73 100.6721% 12/25/02 170,323.07 100.6218% 3/25/03 155,920.31 100.5713% 6/25/03 141,310.50 100.5205% 9/25/03 126,490.68 100.4695% 12/25/03 111,457.83 100.4183% 3/25/04 96,208.88 100.3668% 6/25/04 80,740.72 100.3151% 9/25/04 65,050.21 100.2632% 12/25/04 49,134.15 100.2110% 3/25/05 32,989.29 100.1586% 6/25/05 16,612.36 100.1060% 9/25/05 ----------- - - - - -- --------------------------- 0.00 - - - - -- --------------------------- 0.0000% - - - - --