HomeMy WebLinkAbout042 - 04/20/2021 - AUTHORIZING THE ISSUANCE OF THE CITY OF FORT COLLINS, COLORADO TAX-EXEMPT ECONOMIC DEVELOPMENT REVEN
FINANCING AGREEMENT
By and Among
CITY OF FORT COLLINS, COLORADO
and
THE RESIDENCE @ OAKRIDGE, LLC
and
FIRST AMERICAN STATE BANK
relating to:
City of Fort Collins, Colorado
Tax-Exempt Economic Development Revenue Bond
(The Residence at Oakridge Project)
Series 2021A
in the Principal Amount of
[Series A Par]
and
City of Fort Collins, Colorado
Taxable Economic Development Revenue Bond
(The Residence at Oakridge Project)
Series 2021B
in the Principal Amount of
[Series B Par]
Dated [closing date], 2021
EXHIBIT A
i
Table of Contents
Page
ARTICLE I
DEFINITIONS
Section 1.01 General .................................................................................................................... 2
Section 1.02 Definitions............................................................................................................... 2
ARTICLE II
REPRESENTATIONS
Section 2.01 Representations by the Issuer.................................................................................. 9
Section 2.02 Representations and Covenants by the Borrower ................................................. 10
ARTICLE III
ISSUANCE OF THE BONDS AND APPLICATION
OF THE PROCEEDS THEREOF
Section 3.01 Agreement to Effect the Refunding Project .......................................................... 14
Section 3.02 Agreement to Issue the Bonds; Application of Bonds Proceeds .......................... 14
Section 3.03 Authorization and Terms of the Bonds. ................................................................ 15
Section 3.04 Redemption of the Series 2021A Bond ................................................................ 16
Section 3.05 Notice of Prepayment ........................................................................................... 17
Section 3.06 Form of Bonds ...................................................................................................... 17
Section 3.07 Registration and Transfer ...................................................................................... 17
Section 3.08 Replacement of Lost or Damaged Bonds ............................................................. 18
Section 3.09 Execution of the Bonds ......................................................................................... 18
Section 3.10 Authentication of Bonds ....................................................................................... 18
Section 3.11 Ownership and Use of the Project Facilities ......................................................... 18
Section 3.12 Tax Covenant. ....................................................................................................... 19
ARTICLE IV
PROVISIONS FOR PAYMENT
Section 4.01 Loan Payments; Delivery of Notes. ...................................................................... 19
Section 4.02 Administration Fees and Expenses ....................................................................... 20
Section 4.03 Prepayment of Notes ............................................................................................. 20
Section 4.04 Cessation of Accrual of Interest ............................................................................ 20
Section 4.05 Unconditional Obligations .................................................................................... 20
Section 4.06 Setoff ..................................................................................................................... 21
ARTICLE V
GENERAL COVENANTS
Section 5.01 Improvement, Maintenance and Modification of Property by the Borrower ....... 21
Section 5.02 Insurance ............................................................................................................... 21
Section 5.03 Liens and Encumbrances ...................................................................................... 21
Section 5.04 Use of Net Proceeds .............................................................................................. 21
Section 5.05 Compliance with Laws ......................................................................................... 21
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Section 5.06 Retention of Records ............................................................................................. 21
Section 5.07 Litigation ............................................................................................................... 22
Section 5.08 Additional Information ......................................................................................... 22
Section 5.09 Inspection .............................................................................................................. 22
Section 5.10 Taxes, Charges and Liens ..................................................................................... 22
Section 5.11 Maintenance of Licenses and Permits ................................................................... 22
Section 5.12 Terrorism and Anti-Money Laundering ................................................................ 22
ARTICLE VI
SPECIAL COVENANTS
Section 6.01 No Warranty of Condition or Suitability of the Project Facilities ........................ 23
Section 6.02 Borrower’s Assets ................................................................................................. 23
Section 6.03 Reporting Requirements ....................................................................................... 24
Section 6.04 Financial Covenants. ............................................................................................. 24
Section 6.05 No Additional Indebtedness or Further Encumbrances ........................................ 24
Section 6.06 Further Assurances................................................................................................ 25
Section 6.07 Material Adverse Change ..................................................................................... 25
Section 6.08 Dissolution or Liquidation .................................................................................... 25
Section 6.09 Relationship .......................................................................................................... 25
Section 6.10 Release and Indemnification. ................................................................................ 25
Section 6.11 Authority of Authorized Borrower Representative ............................................... 28
Section 6.12 Authority of Authorized Issuer Representative .................................................... 28
Section 6.13 Authority of Authorized Registered Owner Representative ................................. 28
Section 6.14 Right of Access ..................................................................................................... 28
Section 6.15 Waiver of Presentment .......................................................................................... 28
Section 6.16 Know your Customer. ........................................................................................... 29
Section 6.17 Notices. ................................................................................................................. 29
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
Section 7.01 Events of Default .................................................................................................. 29
Section 7.02 Remedies on Default ............................................................................................. 31
Section 7.03 Remedies Cumulative ........................................................................................... 31
Section 7.04 Waiver and Cure of Default .................................................................................. 32
Section 7.05 Application of Moneys ......................................................................................... 32
Section 7.06 Failure of the Issuer to Perform Obligations......................................................... 32
Section 7.07 Agreement to Pay Attorneys’ Fees and Expenses ................................................ 32
Section 7.08 Reinstatement ........................................................................................................ 33
Section 7.09 Certain Performance by the Registered Owner .................................................... 33
ARTICLE VIII
MISCELLANEOUS
Section 8.01 Term of This Agreement ....................................................................................... 33
Section 8.02 Notices .................................................................................................................. 33
Section 8.03 Binding Effect ....................................................................................................... 34
Section 8.04 Third-Party Beneficiaries ...................................................................................... 34
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Section 8.05 Severability ........................................................................................................... 34
Section 8.06 Amendments, Changes and Modifications ........................................................... 34
Section 8.07 Transfers ............................................................................................................... 35
Section 8.08 Execution in Counterparts ..................................................................................... 35
Section 8.09 Governing Law ..................................................................................................... 35
Section 8.10 Captions ................................................................................................................ 35
Section 8.11 Limitation on Liability of Issuer ........................................................................... 35
Section 8.12 No Personal Liability of Officials of the Issuer .................................................... 36
Section 8.13 Payments Due on Holidays ................................................................................... 36
Section 8.14 Conditions to Closing ........................................................................................... 36
Section 8.15 Waiver of Jury Trial .............................................................................................. 39
Section 8.16 No Fiduciary Relationship, Etc. ............................................................................ 39
Section 8.17 Relationship to Other Borrower Documents ......................................................... 40
Section 8.18 Records of the Registered Owner ......................................................................... 40
Section 8.19 Relationship Between Bond Purchaser and Registered Owner ............................ 40
Section 8.20 Uniform Electronics Transactions Act .................................................................. 40
Section 8.21 Waiver of Special Damages .................................................................................. 40
Section 8.22 Jurisdiction and Venue .......................................................................................... 41
EXHIBIT A PROPERTY .................................................................................................... A-1
EXHIBIT B INVESTOR LETTER .......................................................................................B-1
EXHIBIT C FORM OF BONDS .........................................................................................C-1
EXHIBIT D PROMISSORY NOTES .................................................................................. D-1
EXHIBIT E COSTS OF ISSUANCE ................................................................................... E-1
EXHIBIT F AMORTIZATION SCHEDULE ...................................................................... F-1
1
THIS FINANCING AGREEMENT is dated [closing date], 2021 (this “Agreement”), by
and among the CITY OF FORT COLLINS, COLORADO, a municipal corporation and a home
rule city duly organized and existing under the laws of the State of Colorado and in particular
under the provisions of Article XX of the Constitution of the State of Colorado and the City Charter
(the “Issuer”), THE RESIDENCE @ OAKRIDGE, LLC, a Florida limited liability company
(the “Borrower”), and FIRST AMERICAN STATE BANK, a Colorado state banking
corporation (the “Bond Purchaser” or “First American State Bank”).
W I T N E S S E T H :
WHEREAS, the Issuer is authorized by the City Charter, the County and Municipality
Development Revenue Bond Act, constituting Article 3, Title 29, Colorado Revised Statutes, as
amended (the “Act”) and the Colorado Supplemental Public Securities Act, constituting Part 2,
Article 57, Title 11, Colorado Revised Statutes, as amended (the “Supplemental Act”) to issue
revenue bonds to finance one or more projects, which includes any land, building or other
improvement and all real or personal properties suitable or used for or in connection with hospital,
health-care or nursing-home facilities; and
WHEREAS, the Act permits counties and municipalities to finance such projects which
are located within the corporate limits of the county or municipality; and
WHEREAS, the Act further authorizes counties and municipalities to issue revenue bonds
for the purposes described above, including all incidental expenses incurred in issuing such bonds,
to secure the payment of such bonds as provided in the Act, and to enter into financing agreements
with others for the purpose of providing revenue to pay such bonds upon such terms and conditions
as the counties and municipalities may deem advisable; and
WHEREAS, the Act further provides that title to any project may at all times remain in the
name of the user of the project; and
WHEREAS, the Issuer has previously issued its City of Fort Collins, Colorado Variable
Rate Economic Development Revenue Bonds, Series 2001A (The Residence at Oakridge Project),
in the original aggregate principal amount of $3,555,000 (the “2001A Bonds”); and
WHEREAS, the Borrower has requested that the Issuer refund the 2001A Bonds (the
“Refunding Project”); and
WHEREAS, pursuant to and in accordance with the Act, the Issuer, by ordinance adopted
by the City Council of the Issuer and in furtherance of the purposes of the Act, pursuant to this
Agreement, proposes to finance the Refunding Project by the issuance of its City of Fort Collins,
Colorado Tax-Exempt Economic Development Revenue Bond (The Residence at Oakridge
Project), Series 2021A in the principal amount of [Series A Par] (the “2021A Bond”) and its City
of Fort Collins, Colorado Taxable Economic Development Revenue Bond (The Residence at
Oakridge Project), Series 2021B in the principal amount of [Series B Par] (the “2021B Bond”, and
together with the 2021A Bond, the “Bonds”), and to loan the proceeds of the Bonds to the
Borrower; and
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WHEREAS. the Borrower desires to borrow the proceeds of the Bonds upon the terms and
conditions set forth in this Agreement to pay in full the 2001A Bonds; and
WHEREAS, First American State Bank proposes to purchase the Bonds from the Issuer;
and
WHEREAS, the Bonds issued hereunder will be secured by (a) the Revenues (as defined
in Section 1.02 hereof) and funds pledged or assigned as security therefor under this Agreement,
including, without limitation, payments made by the Borrower under the promissory notes related
to the Bonds, dated the date hereof (the “Notes”) by the Borrower to the Bond Purchaser as
assignee of the Issuer; and (b) additionally secured by the Security Documents (defined herein);
and
WHEREAS, the issuance and sale of the Bonds, the loan of the proceeds thereof, as
evidenced by the Notes, and the security for the payment of the Bonds in accordance with this
Agreement have been authorized by an ordinance adopted by the City Council of the Issuer on
April 20, 2021, and the Borrower and First American State Bank have each taken such corporate
actions necessary for them to execute and deliver, and to perform their respective obligations
under, this Agreement and the related agreements, instruments and other documents relating
hereto;
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other
valuable consideration, the parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 General. All definitions herein shall be applicable to the singular and plural
form of the term defined.
Section 1.02 Definitions. Except where the context indicates otherwise, the following
terms shall have the meanings set forth below:
“Accessibility Laws” means any federal, state or local law, statute, code, ordinance, rule,
regulation or requirement, including, without limitation, under the United States Americans With
Disabilities Act of 1990, as amended (the “ADA”), relating to accessibility to facilities or
properties for disabled, handicapped and/or physically challenged persons, or other persons
covered by the ADA, including, without limitation, the applicable accessibility requirements set
forth in 24 CFR Part 8, which implements Section 504 of the Rehabilitation Act of 1973 (29 U.S.C.
794), and the design and construction requirements set forth in 24 CFR 100.205, which implements
the Fair Housing Act (42 U.S.C. 3601-3619).
“Act” means the County and Municipality Development Revenue Bond Act, constituting
Article 3, Title 29, Colorado Revised Statutes, as amended, or any successor statute thereto.
“Administration Fees and Expenses” means all reasonable and necessary expenses incurred
by the Issuer in performing its duties or exercising its rights under this Agreement.
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“Affiliate” means any person or entity which (A) owns beneficially, directly or indirectly,
any outstanding units or equity interests of Borrower, or (B) controls, is controlled by or is under
common control with Borrower. The term “control” shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management and policies of a person
or entity, whether through ownership of voting securities, by contract or otherwise.
“Agreement” has the meaning given in the Preamble, and as it may be amended, modified,
supplemented or restated from time to time.
“Anti-Money Laundering Laws” means the Patriot Act; the Bank Secrecy Act, as amended
through the date hereof; Executive Order 1 3324-Blocking Property and Prohibiting Transactions
with Persons Who Commit, Threaten to Commit, or Support Terrorism, as amended through the
date hereof; and other federal laws and regulations and executive orders administered by OFAC
which prohibit, among other things, the engagement in transactions with, and the provision of
services to, certain foreign countries, territories, entities and individuals (such individuals include
specially designated nationals, specially designated narcotics traffickers and other parties subject
to OFAC sanction and embargo programs), and such additional laws and programs administered
by OFAC which prohibit dealing with individuals or entities in certain countries regardless of
whether such individuals or entities appear on any of the OFAC lists.
“Assignment of Rents” means one or more Assignment of Leases, Rents and Other Rights,
relating to the Property dated the Closing Date and granted, by the Borrower to and for the benefit
of the Bond Purchaser, as it may be amended, modified, supplemented or restated from time to
time.
“Authorized Issuer Representative” means any one of the persons at the time designated to
act on behalf of the Issuer by written certificate furnished to the Borrower and the Bond Purchaser
containing the specimen signatures of such persons and signed on behalf of the Issuer by its Mayor.
“Authorized Borrower Representative” means the person or persons from time-to-time
designated to act on behalf of the Borrower by written certificate furnished to the Issuer and the
Bond Purchaser, containing the specimen signature of such person(s) and signed by an officer of
the Borrower; the certificate may designate an alternate or alternates.
“Authorized Registered Owner Representative” means the person from time to time
designated to act on behalf of the Registered Owner by written certificate furnished to the Issuer
and the Borrower, containing the specimen signature of such person and signed by an officer of
the Registered Owner; the certificate may designate an alternate or alternates.
“Bankruptcy Code” means the United States Bankruptcy Code, together with all statutory
and regulatory provisions consolidating, amending, replacing, or interpreting the same.
“Bond Counsel” means the counsel who renders the opinion as to the exclusion of interest
on the Bonds from gross income for federal and state income tax purposes or such other nationally
recognized municipal Bond Counsel as is mutually acceptable to the Issuer and the Bond
Purchaser.
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“Bond Purchaser” or “First American State Bank” means First American State Bank, a
Colorado state banking corporation, and its successors and assigns.
“Bonds” means the 2021A Bond and 2021B Bond.
“Borrower” means The Residence @ Oakridge, LLC, a Florida limited liability company,
and its successors and assigns.
“Borrower Documents” means this Agreement, the Security Documents, the Tax
Compliance Certificate and all other documents entered into by the Borrower in connection with
this Agreement and the issuance of the Bonds by the Issuer.
“Business Day” means any day of the week other than Saturday, Sunday or a day which
shall be in the State a legal holiday or a day on which banks in the State are closed for business.
“Closing Date” means [closing date], 2021.
“Code” means the Internal Revenue Code of 1986, as amended, and the regulations
promulgated thereunder.
“Collateral” means, collectively, the Property and all other property and assets in which a
lien, security interest or collateral assignment is granted under the Security Documents and
hereunder.
“Collateral Assignment Agreements” means, the Assignment of Deposit Account,
Collateral Assignments of Management Agreement, and any other assignment or security interest
grant made for the benefit of the Bond Purchaser, as such may be amended, modified,
supplemented or restated from time to time.
“Debt Service Reserve Account” is defined in Section 6.04(b).
“Debt Service Reserve Requirement” means the amount of $______.
“Deed of Trust” means the Deed of Trust and Assignment of Rents on the Property.
“Default” is defined in Section 6.17.
“Default Rate” means twelve percent (12%) per annum.
“Determination of Taxability” means and shall occur when, (a) the Borrower and the
Registered Owner receive written notice from the Issuer, supported by an opinion of Bond
Counsel, that interest on the 2021A Bond is includable in the gross income of the Registered
Owner of the 2021A Bond for federal income tax purposes (for any reason not specific or personal
to the Registered Owner, including without limitation any change in law) unless the Borrower shall
within thirty (30) days thereafter provide the Issuer and the Registered Owner with an opinion of
Bond Counsel that interest on the 2021A Bond is not includible in the gross income of the
Registered Owner of the 2021A Bond for federal income tax purposes (for any reason not specific
or personal to the Registered Owner, including without limitation any change in law); (b) Bond
5
Counsel withdraws its opinion, delivered in accordance with Section 8.14(l) hereof, that interest
on the 2021A Bond is excludable from gross income of the Registered Owner of the 2021A Bond
for federal income tax purposes (for any reason not specific or personal to the Registered Owner,
including without limitation any change in law); or (c) any final determination, decision or decree
is made by the Commissioner or any District Director of the Internal Revenue Service, or by any
court of competent jurisdiction, for which there is no further right of appeal and that the interest
payable on the 2021A Bond is includable in the gross income for federal income tax purposes of
the Registered Owner by virtue of the occurrence of any event, including any change in the
Constitution or laws of the United States of America or the State, which results in interest payable
on the 2021A Bond becoming includable in the gross income of the Registered Owner pursuant to
Section 103(b) of the Code, and the rules and regulations promulgated thereunder (for any reason
not specific or personal to the Registered Owner, including without limitation any change in law)
if and so long as such determination, decision or decree is not being appealed or otherwise
contested in good faith by the Borrower.
“Effective Date” means the Closing Date.
“Environmental Indemnity” means that certain Environmental Indemnity Agreement,
dated as of the Closing Date, by the Borrower to and for the benefit of the Bond Purchaser, as it
may be amended, modified, supplemented, or restated from time to time.
“Environmental Laws” means any statute, regulation, rule or other law, regulation, order
or decree, or any provision as set forth in any license or permit pertaining to (a) emission,
discharge, release, runoff, disposal, or presence in the environment of any Hazardous Material; (b)
cleanup, containment, manufacturing, treatment, handling, transportation, storage, or sale of, or
other activity pertaining to, any Hazardous Material; or (c) other peril to public or occupational
health or safety or to the environment that may be posed by any Hazardous Material.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and
the regulations promulgated thereunder from time to time.
“Event of Default” means those events specified in Section 7.01 hereof.
“Event of Taxability” means the earliest date upon which interest on the 2021A Bond
becomes subject to federal income taxation as a result of a Determination of Taxability.
“Financial Statements” means, collectively, a balance sheet, income statement, sources and
uses of funds and list of contingent liabilities.
“Financing Statement” means one or more UCC financing statements, filed in accordance
herewith or in accordance with one or more of the Security Documents, identifying the applicable
debtor, and the Bond Purchaser, as secured party, as such financing statements may be amended,
supplemented, or modified from time to time.
“GAAP” means generally accepted accounting principles as in effect from time to time in
the United States of America.
6
“Hazardous Material” means any toxic substance, hazardous material, contaminant,
waste, pollutant, or other similar product or substance that may pose a threat to public or
occupational health or safety or to the environment.
“Indebtedness” of any referenced person or entity means any and all obligations of the
referenced person or entity (1) for borrowed money, however evidenced, including without
limitation borrowed money evidenced by any promissory notes, bonds, debenture, or other similar
written obligation to pay money; (2) for the deferred purchase price of any asset, property, or
service; (3) under any agreement made for the purpose of hedging or swapping any rate of interest,
currency or commodity, or any similar arrangement; (4) in respect of any letter of credit; (5) as
lessee under leases that have been capitalized or should be capitalized under GAAP; (6) under any
guaranty or similar credit support obligation relating to Indebtedness of another person; and (7)
otherwise treated as long-term debt under GAAP; in each case, whether matured or un-matured,
direct or contingent. Notwithstanding the foregoing, the term “Indebtedness” does not include any
trade liability from the purchase of goods or services in the ordinary course of business and treated
as a current accounts payable under GAAP.
“Indemnified Registered Owner Parties” is defined in Section 6.10(b).
“Issuer” means the City of Fort Collins, Colorado, a home rule municipality duly organized
and existing under the laws and constitution of the State, and its successors and assigns.
“Issuer Ordinance” means the ordinance adopted by the City Council of the Issuer on April
20, 2021, relating to the Bonds and the Loan.
“Loan” means the loan by the Issuer to the Borrower of the proceeds from the sale of the
Bonds to the Bond Purchaser pursuant to this Agreement.
“Loan Payments” means the amounts required to be paid by the Borrower pursuant to
Section 4.01 hereof.
“Material Adverse Effect” means any material and adverse effect, whether individually or
in the aggregate, upon (a) the assets, business, cash flow, expenses, income, liabilities, operations,
properties, or condition, financial or otherwise, of the Borrower that adversely impacts the ability
of the Borrower to pay or perform its obligations as set forth herein and the Borrower Documents;
(b) the Property or the perfection or priority of any security interest, lien, or encumbrance in any
Collateral purported to be created by any Borrower Document; or (c) any change in the assets,
business, financial condition, operations, prospects, or results of operations of Borrower or any
other event or condition that in the reasonable opinion of Bond Purchaser (i) could materially and
adversely affect the likelihood of performance by Borrower of any of its obligations under the
Borrower Documents, (ii) could materially and adversely affect the ability of Borrower to perform
any of its obligations under the Borrower Documents, or (iii) could adversely affect the legality,
validity, or binding nature of any obligation of Borrower under the Borrower Documents or of any
lien on or security interest in any part of the Project.
“Maturity Date” means with respect to the 2021A Bond, May 1, 2034, and with respect to
the 2021B Bond, February 1, 2023, as such maturity dates may be accelerated in accordance with
the provisions hereof.
7
“Maximum Rate” means the rate of interest that would violate provisions of law applicable
to the Registered Owner limiting the maximum rate of interest which may be charged or collected
by the Registered Owner.
“Mortgage Title Insurance Policy” means an American Land Title Association Standard
Loan Policy (ALTA form) revised to the most recent date delivered to the Bond Purchaser on the
Closing Date and insuring the liens of the Deed of Trust and Assignment of Rents are in the priority
positions described in such policy.
“Net Proceeds” means, when used with respect to any insurance payment or condemnation
award, the gross proceeds thereof attributable to the Property or any other insured, tangible
Collateral, less those expenses (including attorneys’ fees) incurred in the collection of such gross
proceeds.
“Notes” means the 2021A Note and the 2021B Note.
“Notice of Taxability” is defined in Section 3.03(d).
“OFAC” means the United States Department of the Treasury, Office of Foreign Assets
Control.
“OFAC Prohibited Person” means a country, territory, individual or person (i) listed on,
included within or associated with any of the countries, territories, individuals or entities referred
to on OFAC’s List of Specially Designated Nationals and Blocked Persons or any other prohibited
person lists maintained by governmental authorities, or otherwise included within or associated
with any of the countries, territories, individuals or entities referred to in or prohibited by OFAC
or any other Anti-Money Laundering Laws, or (ii) which is obligated or has any interest to pay,
donate, transfer or otherwise assign any property, money, goods, services, or other benefits from
the Property directly or indirectly, to any countries, territories, individuals or entities on or
associated with anyone on such list or in such laws.
“Payment Dates” means the first calendar day of each month, commencing June 1, 2021.
“Permitted Exceptions” means those title exceptions listed on Schedule B-II of the final
policy of title insurance for the mortgagees title insurance policy for the Bond Purchaser, issued
by First National Title Insurance Company, with a file number 28941, and delivered by Title One
of Colorado as agent for First National Title Insurance Company.
“Prepayment Fee” is defined in Section 3.04.
“Project” means a health care facility which also qualifies as a multifamily rental housing
project under Section 142(d) of the Code consisting of the Property.
“Project Facilities” means a 44-unit/65 bed assisted-living facility known as The
Residence at Oakridge located on the Project Site.
“Project Funds” means the Bonds proceeds.
8
“Project Site” means the real property owned by the Borrower described in Exhibit A
hereto.
“Property” means, collectively, (a) the Project Site and (b) the Project Facilities.
“Rebate Analyst” means an independent accounting firm or law firm with expertise in
arbitrage rebate compliance for tax exempt Bonds issues chosen by the Borrower pursuant to
Section 3.12 hereof to calculate any required rebate payments due to the United States Treasury.
“Refunding Project” means the refunding and payment in full of the 2001A Bonds and the
payment of the costs of issuance of the Bonds.
“Registered Owner(s)” means the registered owner or owners of the Bonds, which initially
shall be the Bond Purchaser and which, upon transfer of the Bonds in accordance with Section
3.07 hereof, shall mean the then current owner of the Bonds in whose name the Bonds are
registered on registration books for the Bonds maintained by the Registrar.
“Registrar” means initially the Bond Purchaser and, upon the transfer of the Bonds in
accordance with Section 3.07 hereof, the Bond Purchaser or, subject to the written consent of the
Issuer, the Registered Owner of the Bonds to which the Bond Purchaser transfers the Bonds or any
subsequent Registered Owner.
“Revenues” means legally available revenues of the Borrower, including without
limitation the rents and other charges payable by or on behalf of the users of the Project Facilities,
and the recipients of services provided by the Borrower, and all gifts, donations, pledges, grants,
legacies, bequests, demises and contributions (but excluding those included in the Borrower’s
Equity or that are legally restricted by the donor or grantor from the payment of the Borrower’s
debt service), all in accordance with Borrower’s audited Financial Statements.
“Security Documents” means the Deed of Trust, the Assignment of Rents, the
Environmental Indemnity, the Financing Statement, the Collateral Assignment Agreements, the
Notes, and any other applicable agreements, instruments or documents made pursuant hereto or to
any of the other Borrower Documents and securing payment of the Bonds, the Loan, or any of the
Borrower’s other payment and performance obligations hereunder and under the Borrower
Documents related to the Bonds.
“State” means the State of Colorado.
“Supplemental Act” means the Supplemental Public Securities Act, constituting Part 2,
Article 57, Title 11, Colorado Revised Statutes, as amended.
“Tax-exempt Rate” means at all times, a fixed rate of interest equal to three and three-
quarters percent (3.75%) per annum.
“Taxable Make-Whole Amount” is defined in Section 3.03(d).
“Taxable Rate” means four and one-half percent (4.5%) per annum.
9
“Tax Compliance Certificate” means the Tax Compliance Certificate by the Issuer and the
Borrower in connection with the initial issuance and delivery of the 2021A Bond, as modified
from time to time pursuant to its terms with the prior written consent of the Bond Purchaser.
“Title Company” means Title One of Colorado as agent for First National Title Insurance
Company.
“U.S. Bank” means U.S. Bank National Association.
“2001A Bonds” means City of Fort Collins, Colorado Variable Rate Economic
Development Revenue Bonds, Series 2001A (The Residence at Oakridge Project), in the original
aggregate principal amount of $3,555,000.
“2021A Bond” means the City of Fort Collins, Colorado Tax-Exempt Economic
Development Revenue Bond (The Residence at Oakridge Project), Series 2021A in the principal
amount of [Series A Par] to be issued pursuant to the provisions hereof.
“2021A Note” the 2021A Promissory Note executed and delivered by the Borrower payable
to the Bond Purchaser as assignee of the Issuer which evidences the portion of the Loan funded
from the 2021A Bond proceeds, the form of which is attached hereto as Exhibit D and made a part
hereof, as it may be amended, modified, supplemented, or restated from time to time.
“2021B Bond” means the City of Fort Collins, Colorado Taxable Economic Development
Revenue Bond (The Residence at Oakridge Project), Series 2021B in the principal amount of
[Series B Par] to be issued pursuant to the provisions hereof.
“2021B Note” the 2021B Promissory Note executed and delivered by the Borrower payable
to the Bond Purchaser as assignee of the Issuer which evidences the portion of the Loan funded
from the 2021B Bond proceeds, the form of which is attached hereto as Exhibit D and made a part
hereof, as it may be amended, modified, supplemented, or restated from time to time.
ARTICLE II
REPRESENTATIONS
Section 2.01 Representations by the Issuer. The Issuer represents that:
(a) The Issuer is a municipal corporation and a home rule city duly organized
and existing under the laws of the State of Colorado and in particular under the provisions of
Article XX of the Constitution of the State of Colorado and the City Charter, is authorized pursuant
to the City Charter, the Act and the Supplemental Act to enter into the transactions contemplated
by this Agreement and to carry out its obligations hereunder and thereunder, and has duly
authorized the execution and delivery of this Agreement.
(b) The Issuer has duly adopted the Issuer Ordinance, and the Issuer Ordinance
has not been terminated, rescinded, canceled, revoked, vacated, amended, supplemented or
otherwise modified since the date of its adoption and is and has been since the date of its adoption
in full force and effect.
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(c) Consistent with the understanding among the Issuer, the Borrower and the
Bond Purchaser, the Issuer will loan to the Borrower the proceeds of the Bonds to provide for the
financing of a portion of the costs of the Refunding Project.
(d) The Issuer hereby finds that the financing of a portion of the costs of the
Refunding Project is in the public interest.
(e) Neither the execution and delivery of this Agreement or the Bonds, the
consummation of the transactions contemplated hereby or thereby nor the fulfillment of or
compliance with the terms and conditions of this Agreement or the Bonds conflicts with or results
in a breach of any of the terms, conditions or provisions of any restriction or any agreement or
instrument to which the Issuer is now a party or by which it is bound or constitutes a default under
any of the foregoing or results in the creation or imposition of any prohibited lien, charge or
encumbrance of any nature whatsoever upon any of the property or assets of the Issuer under the
terms of any instrument or agreement.
(f) The Issuer hereby approves the Borrower’s estimate of the total cost of the
Refunding Project set forth in Section 2.02(d) hereof and hereby finds that the amount of the Loan
does not exceed such estimated cost.
Section 2.02 Representations and Covenants by the Borrower. The Borrower
represents and covenants that:
(a) The Borrower is a Florida limited liability company duly organized, validly
existing and in good standing under the laws of the State of Florida and is qualified to do business
in the State. The Borrower has the corporate power and authority to carry on its operations as now
conducted and to enter into and to perform and observe the covenants and agreements on its part
contained in this Agreement and all other Borrower Documents to which the Borrower is a party,
and by proper corporate action the Borrower has duly authorized the execution and delivery of this
Agreement and all other Borrower Documents, and each Borrower Document has been, or when
executed and delivered by the Borrower will be duly executed and delivered by the Borrower. No
consent, approval, or authorization of any person other than the Borrower is required as a condition
precedent, concurrent, or subsequent to the due and valid execution, delivery, and performance of
the Borrower of this Agreement or any of the other Borrower Documents, except as has been
obtained or made and is in full force and effect.
(b) None of the execution and delivery of this Agreement or any of the other
Borrower Documents, the consummation of the transactions contemplated hereby and thereby, or
the fulfillment of or compliance with the terms and conditions of this Agreement or any other
Borrower Documents violates any law or conflicts with or results in a breach of any of the terms,
conditions or provisions of any restriction or any agreement or instrument to which the Borrower
is now a party or by which it is bound (including the Borrower’s governance documents) or
constitutes a default under any of the foregoing or results in the creation or imposition of any lien,
charge or encumbrance of any nature whatsoever upon any of the Collateral under the terms of
any instrument or agreement, other than this Agreement and the other Borrower Documents.
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(c) No conditions exist, to the knowledge of Borrower, that would prevent
Borrower from fully complying with the conditions and provisions of this Agreement within the
time limits of this Agreement.
(d) The total cost of the Refunding Project being financed with proceeds of the
Bonds is not less than $________, and the financing of such cost by the Issuer with the proceeds
of the Bonds will assist the Borrower in continuing to provide land, buildings or other
improvements and all real or personal properties suitable or used for or in connection with hospital,
health-care or nursing-home facilities.
(e) The Borrower shall operate or cause the Project Facilities to be operated to
the expiration of the term of this Agreement as nursing-home facilities within the meaning of the
Act and has complete lawful authority to operate or cause the Project Facilities to be operated for
such purpose.
(f) The Loan Payments due under this Agreement are in an amount sufficient
to pay the principal of and premium, if any, and interest on the Bonds; and this Agreement requires
the Borrower, to pay, or cause to be paid, all costs of maintenance, repair, taxes, payments in lieu
of taxes, assessments, insurance premiums, trustee’s fees and all other expenses relating to the
Property, so that the Issuer will not incur any expenses on account of the Property, other than those
that are covered by the payments by the Borrower provided for herein.
(g) That none of the Borrower nor, to the knowledge of the officer of the
Borrower executing this Agreement after due inquiry, any other person has ever caused or
permitted any Hazardous Material to be placed, held, located or disposed of on, under or at the
Property or any part thereof, or transported to or from in violation of applicable Environmental
Laws. The Borrower hereby represents and warrants to the Issuer and the Registered Owner that
all Hazardous Materials generated or utilized by the Borrower at the Property, if any, were handled,
stored, transported and disposed of in accordance with applicable Environmental Laws. The
Borrower hereby further represents and warrants to the Issuer, the Bond Purchaser and the
Registered Owner, and agrees, that the Borrower will not generate, utilize, handle, store, transport
or dispose of any Hazardous Material at the Property, except for cleaning and other products used
in connection with the routine operation, maintenance or repair of the Property, all in full
compliance with Environmental Laws and will not permit any lessee on the Property to use, store,
manufacture, generate, transport to or from, or dispose of any toxic substances, hazardous
materials, hazardous waste, radioactive materials, flammable explosives, related material on or in
connection with any property or the business on any property in violation of applicable
Environmental Laws (“toxic substances,” “Hazardous Materials,” and “hazardous waste” shall
include, but not be limited to, such substances, materials and wastes which are or become regulated
under applicable Laws or which are classified as hazardous or toxic under applicable
Environmental Laws). To the Borrower’s knowledge, all required environmental impact
statements as required by any governmental agency having jurisdiction over the Property or the
construction of the improvements to the Property have been duly filed and approved, or a negative
declaration has been issued.
(h) There are no actions, suits or proceedings or investigations, at law or in
equity, or before or by any governmental authority, pending or, to the knowledge of the officer of
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the Borrower executing this Agreement, after due inquiry, threatened, (i) involving the Bonds, this
Agreement or any other Borrower Document (including the intended validity, enforceability, or
priority of the liens and security interests as set forth therein), or the Collateral; or (ii) otherwise
against the Borrower or any other property or assets of the Borrower, except, with regard to this
clause (ii), actions which, if adversely determined, could not reasonably be expected to have a
Material Adverse Effect. The Borrower is not in default under any mortgage, deed of trust, lease,
loan or credit agreement, partnership agreement or other agreement or instrument to which the
Borrower is a party or by which any of its properties or assets are bound.
(i) The Project Facilities consist of the facilities owned by the Borrower,
including all buildings, improvements and fixtures now or in the future located on the Project Site,
and the Project Site consists of the real property described in Exhibit A hereto, and no changes
shall be made in the Project Facilities which could materially and adversely affect the use of the
Project Facilities in a manner not consistent with the Act.
(j) The Project Facilities are and will be used and maintained in such manner
as to conform in all material respects with all applicable zoning, planning, building, environmental,
Accessibility Laws, and other laws and regulations of all governmental authorities having
jurisdiction over the Project Facilities and/or the Property, and the Borrower has not and will not
transfer, assign, convey, hypothecate or encumber any of the air rights pertaining to the Property.
(k) The Project Facilities will not be used exclusively or predominantly for
religious worship or sectarian instruction (other than the academic or comparative study of various
religions or religious philosophies) for the term of the Bonds.
(l) Concurrent with the delivery hereof, the Borrower will execute and deliver
those Borrower Documents to which each is a party in form and content reasonably acceptable to
the Bond Purchaser and the Issuer.
(m) Except for the Bonds and the Notes, upon issuance and delivery of the
Bonds and the Notes, the Borrower will have no other Indebtedness outstanding other than trade
payables in the ordinary course of business. The Borrower covenants that it will incur Indebtedness
of any kind only in accordance with the provisions of Section 6.05 of this Agreement.
(n) This Agreement and all other Borrower Documents to which the Borrower
is a party constitute legal, valid and binding obligations of the Borrower enforceable against the
Borrower in accordance with their respective terms, except as limited by bankruptcy, insolvency
or similar laws of general application relating to the enforcement of creditors’ rights, and except
to the extent specific remedies may generally be limited by equitable principles.
(o) Borrower has good and marketable title to the Project Site. The Borrower
enjoys the peaceable and undisturbed possession of all real and personal property which is material
to its operation.
(p) The Borrower is conducting its businesses and operations, and otherwise
possesses and uses the Property, in compliance with all applicable federal, state and local laws,
statutes, ordinances, rules, regulations, orders, determinations and court decisions, including,
without limitation, Environmental Laws (except in each case to the extent that non-compliance
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could not reasonably be expected to have a Material Adverse Effect), and the Borrower has no
known material contingent liability in connection with the release into the environment, disposal
or the improper storage of any Hazardous Material. The Borrower’s execution, delivery, and
performance of the Borrower Documents will not violate any federal, state or local laws, statutes,
ordinances, rules, regulations, orders, determinations or court decisions applicable to the Borrower
or the Property.
(q) Each employee benefit plan as to which the Borrower may have any liability
complies in all material respects with all applicable requirements of law and regulations, and (i)
no “reportable event” nor “prohibited transaction” (as defined in ERISA) has occurred with respect
to any such plan; (ii) the Borrower has not withdrawn from any such plan or initiated steps to do
so; (iii) no steps have been taken to terminate any such plan; and (iv) there are no unfunded
liabilities under any such plan.
(r) All information heretofore or contemporaneously herewith furnished by the
Borrower to the Bond Purchaser or the Issuer for the purposes of or in connection with this
Agreement or any transaction contemplated hereby is, and all information hereafter furnished by
or on behalf of the Borrower to the Bond Purchaser or the Issuer will be, true and accurate in every
material respect on the date as of which such information is dated or certified, and none of such
information is or will be incomplete by omitting to state any material fact necessary to make such
information not misleading. Projections contained in any such materials have been made by the
Borrower in good faith and based on the best information available to the Borrower. The Borrower
agrees to promptly update any information previously provided to the Bond Purchaser in the event
that such information is no longer true or correct in any material respect or otherwise becomes
incomplete or misleading in any material respect based on then- current facts and circumstances.
(s) The Borrower’s principal place of business is located at: 999 Ponce de Leon
Blvd., Suite 950, Coral Gables, Florida 33134. Unless the Borrower has otherwise designated in
writing to Bond Purchaser, this location is also the office where the Borrower keeps its records
relating to the Collateral.
(t) The Property and the operation of the Project Facilities materially comply
with all applicable laws and all permits and approvals issued thereunder, including, but not limited
to, applicable subdivision laws, licenses and permits, building codes, zoning ordinances, flood
disaster, environmental protection and equal employment regulations and appropriate supervising
boards of fire underwriters and similar agencies. Borrower shall not seek, make or consent to any
change in the zoning, conditions of use, or any other applicable land use permits, approvals or
regulations pertaining to the Property, or any portion thereof, which would constitute a violation
of the warranties and representations herein contained, or would materially and adversely change
the nature of the use or occupancy of the Project Facilities.
(u) Borrower has not and will not transfer, assign, convey, hypothecate or
encumber any of the air rights pertaining to the Property.
(v) The Property fronts on a publicly maintained road or street and the Property
has both legal and practical access to the same via, without limitation, irrevocable perpetual
easements benefiting the Property.
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(w) Borrower possesses all licenses, approvals, permits, franchises, patents,
copyrights, trademarks, and trade names, or rights thereto, that are necessary to own the Property
and conduct business from the Project Facilities as now conducted and as presently proposed to be
conducted, and the Borrower is in violation of any valid rights of others with respect to the
foregoing.
(x) The Borrower understands and agrees that the Bond Purchaser and the
Issuer, without independent investigation, are relying upon the above representations and
warranties, and such other representations and warranties as set forth in any of the other Borrower
Documents, in entering into this Agreement, in purchasing the Bonds, and in effecting the Loan.
(y) All financial information delivered to the Bond Purchaser by the Borrower
is true, correct, and accurate in a material respects, accurately presents the financial condition of
the Borrower, and has been prepared in accordance with GAAP or in accordance with such other
principles or methods as are reasonably acceptable to Bond Purchaser.
(z) There are no actions or proceedings pending or, to the knowledge of any
Borrower, threatened against or affecting Borrower, or any of its property, or any circumstance
existing which would in any manner materially adversely affect the priority or enforceability of
Borrower Documents, or the ability of Borrower to perform its obligations thereunder, except as
disclosed to Lender in writing prior to the execution of this Agreement. There are no condemnation
proceedings or moratorium pending or, to the knowledge of any Borrower, threatened against the
Project Facilities that would impair the use, sale, value or occupancy of the Project Facilities.
Borrower acknowledges, understands, and agrees that the representations and warranties set forth
in this Agreement shall be deemed to be continuing during all times when the Loan remains
outstanding and, except to the extent that Borrower discloses non-compliance to Bond Purchaser
in writing and Bond Purchaser.
ARTICLE III
ISSUANCE OF THE BONDS AND APPLICATION
OF THE PROCEEDS THEREOF
Section 3.01 Agreement to Effect the Refunding Project. The Borrower agrees that the
proceeds of the Bonds shall be used for purposes of paying a portion of the costs of the Refunding
Project.
Section 3.02 Agreement to Issue the Bonds; Application of Bonds Proceeds. The
Issuer agrees to finance a portion of the costs of the Refunding Project by making the Loan to the
Borrower from the proceeds of the Bonds. To provide funds to make the Loan, the Issuer will
issue, sell and cause the Bonds to be delivered to the Bond Purchaser. On the Closing Date,
proceeds of the 2021A Bond in the amount of $__________ shall be transferred to U.S. Bank to
pay in full amounts due under the Reimbursement Agreement dated _____ between the Borrower
and U.S. Bank. The balance of the proceeds of the 2021A Bond and all of the proceeds of the
2021B Bond together with other funds of the Borrower shall be used by the Borrower to pay the
costs of issuance of the Bonds as described in Exhibit E hereto.
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Section 3.03 Authorization and Terms of the Bonds.
(a) There is hereby authorized to be issued under the Act, the Supplemental Act
and hereunder a bond designated as the “City of Fort Collins, Colorado Tax-Exempt Economic
Development Revenue Bond (The Residence at Oakridge Project), Series 2021A” in the principal
amount of [Series A Par] and a bond designated as the “City of Fort Collins, Colorado Taxable
Economic Development Revenue Bond (The Residence at Oakridge Project), Series 2021B” in the
principal amount of [Series B Par].
(b) A single fully registered 2021A Bond shall be issued to the Bond Purchaser
as Registered Owner in an amount of [Series A Par] and a single fully registered 2021B Bond shall
be issued to the Bond Purchaser as Registered Owner in an amount of [Series B Par]. The Bonds
shall be dated the date of issuance and be payable to the order of the Registered Owner. The 2021A
Bond shall bear interest at the Tax-Exempt Rate except as otherwise provided in paragraphs (c) or
(d) of this Section. The 2021B Bond shall bear interest at the Taxable Rate except as otherwise
provided in paragraph (c) of this Section. Interest on all principal amounts outstanding from time
to time on the Bonds shall be calculated on the basis of an actual/360 day-count convention.
(c) Notwithstanding any other provision of this Financing Agreement to the
contrary, upon and during the continuance of an Event of Default, the Bonds will bear interest at
the Default Rate; provided, however, if the Event of Default is the result of a failure in the payment
of the principal or interest on the Note, the applicable default rate will only apply if such failure
continues for ten (10) days after the date on which such payment was due and payable. Any interest
due and payable at the Default Rate shall be payable on demand and if any payment of principal
and interest is not received by the Bond Purchaser within ten (10) days after it is due, a late charge
of 5% of such overdue amount will, at the Bond Purchaser’s option, be payable.
(d) Notwithstanding any other provision of this Financing Agreement to the
contrary from the date on which Registered Owner delivers to the Issuer and the Borrower a notice
of a Determination of Taxability (“Notice of Taxability”) the outstanding principal amount of the
2021A Bond will bear interest at the Taxable Rate. In addition, upon such Determination of
Taxability, the following shall be due under the 2021A Bond: (i) within 30 days following delivery
of the Notice of Taxability, the Taxable Make-Whole Amount; and (ii) within 30 days following
delivery of any demand by a Registered Owner (such demand(s) may be made with the Notice of
Taxability and by separate notice(s)) to the Issuer and the Borrower, any and all penalties and other
amounts imposed upon such Registered Owner by the Internal Revenue Service or other
governmental authority resulting from or caused by the Determination of Taxability. “Taxable
Make-Whole Amount” means the difference equal to (1) the sum of those interest payments, or
portion thereof, paid on the 2021A Bond prior to delivery of the Notice of Taxability and deemed
taxable pursuant to the Determination of Taxability at the Taxable Rate, minus (2) the sum of such
interest payments, or portion thereof, actually paid on such 2021A Bond.
(e) Monthly payments of accrued and unpaid interest on the Bonds shall be due
on each Payment Date without demand. Monthly payments of principal on the Bonds shall be due
and payable without demand on the dates and in the respective amounts set forth on Exhibit F
attached hereto.
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(f) The Bonds shall be dated the Closing Date and shall mature on the Maturity
Date.
(g) Notwithstanding anything to the contrary, the obligation of the Borrower
shall be subject to the limitation that any regular interest, to the Registered Owner of the Bonds
shall not exceed the Maximum Rate.
(h) Payment of the principal of, premium, if any, and interest on the Bonds shall
be made to the Registered Owner by check or draft (subject to collection) delivered or mailed to
the Registered Owner at the addresses maintained by the Bond Purchaser as registrar or by such
electronic means (e.g., auto-debit or ACH payment) as the Registered Owner may permit or
require. All payments of principal of, premium, if any, and interest on the Bonds shall be made in
lawful money of the United States of America in immediately available funds. The Registered
Owner shall note all prepayments of principal on the Bonds prior to the final payment in
accordance with its electronic record-keeping procedures, provided that such records must be
capable of being produced in writing at the request of the Issuer or the Borrower.
(i) The Notes will evidence the general obligation of the Borrower to pay
amounts owed by it to repay the Loan and the Bonds pursuant to this Agreement. The Borrower’s
obligations under this Agreement and the Notes are a general obligation of the Borrower and will
be secured by the Security Documents, and an assignment by the Issuer to the Bond Purchaser of
all of the Issuer’s right, title and interest in and to the Notes and the right to collect all sums due
thereunder, other than the Issuer’s right to payment of fees and costs as provided in Section 4.02
of this Agreement and as provided in the Notes, the forms of which are attached hereto, and the
Issuer’s right to indemnification and consent provided herein.
(j) The Issuer hereby directs the Bond Purchaser, as assignee of the Notes, to
apply such amounts paid pursuant to this Section hereof to pay principal of and interest on the
Bonds. Payments made on the Bonds shall be deemed to be made on the same date and in the same
amount on the Notes.
Section 3.04 Redemption of the Series 2021A Bond. The unpaid principal of the Series
2021A Bond may be prepaid in whole or in part by the Issuer (solely from loan payments of the
Borrower pursuant to the Notes) at the direction of the Borrower on any date on 30 days’ prior
written notice, unless such notice is waived by the Registered Owner. The Series 2021A Bond may
be prepaid at a prepayment price equal to the sum of the following: (i) 100% of the principal
amount being prepaid, (ii) accrued interest on such principal to the prepayment date, (iii) fees and
costs of the Registered Owner, (iv) any default interest and late charges, and (v) a prepayment
penalty equal to the percentage of the principal amount of the Series 2021A Bond prepaid (the
“Prepayment Fee”) as follows:
Closing Date
Anniversary Prepayment Fee
<1 Year 5%
>Year 1 < Year 2 4%
>Year 2 < Year 3 3%
>Year 3 < Year 4 2%
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>Year 4 < Year 5 1%
>Year 5 0%
No Prepayment Fee shall be due on or after the fifth anniversary of the Closing Date. Prepayment
will not result in re-amortization of the principal amount of the Series 2021A Bond, but will be
applied first to any principal, interest then due owing and accrued, then to costs, expenses or fees
due owing or accrued, then to principal installment payments in reverse order of maturity.
Section 3.05 Notice of Prepayment. The Borrower, on behalf of the Issuer, shall give
the Registered Owner of the Series 2021A Bond at least 30 days’ prior written notice, unless such
notice is waived by the Registered Owner, of its intention to cause the Issuer to prepay the Series
2021A Bond pursuant to Section 3.04, which notice shall specify the date of prepayment, the
Prepayment Fee, and include a statement to the effect that all Administration Fees and Expenses
due on the date of such notice have been paid and all other obligations of the Borrower to the Issuer
or the Registered Owner under this Agreement and each of the other Borrower Documents on such
date have been fulfilled. The Borrower shall have the right to revoke such notice of prepayment at
any time prior to the actual prepayment.
Section 3.06 Form of Bonds. The Bonds shall be in the forms set forth in Exhibit C, with
such appropriate variations as are permitted or required by this Agreement.
Section 3.07 Registration and Transfer. The Bond Purchaser hereby agrees to act as
the initial Registrar for the Bonds and in such capacity shall keep a registration book showing the
names and addresses of the Registered Owner of the Bonds. All records of payments received by
the Registered Owner shall be maintained at the Registrar’s office, and the records of the
Registered Owner shall, absent manifest error, be binding and conclusive. The failure of
Registered Owner to record any payment or expense shall not limit or otherwise affect the
obligations under the Bonds. The Bonds may be transferred by an assignment duly executed by
the Registered Owner thereof or its attorney duly authorized in writing, and filed with the
Registrar, and the Registered Owner thereof may, to the extent permitted by law, sell participations
in its Bonds; provided that the Bonds shall always be registered in the name of one owner and;
provided, further, that the Bonds may only be transferred to an entity which is a bank as defined
in Section 3(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”), an “accredited
investor” as defined in Rule 501 of Regulation D under the Securities Act, or a “qualified
institutional buyer” as defined in Rule 144A under the Securities Act, and which transferee has
executed and delivered an “investor letter” in the form attached as Exhibit B hereto. In case of any
initial transfer, the Bond Purchaser shall give the Borrower written notice of the name and address
of the transferee. In the case of any subsequent transfer by a Registered Owner, such Registered
Owner shall effect such transfer by surrendering its Bonds, accompanied by delivery of a duly
executed written instrument of transfer or exchange to the Bond Purchaser and the Issuer, together
with an executed “investor letter” in the form attached as Exhibit B hereto. The Bond Purchaser
shall cause the Issuer to execute new Bonds of the same aggregate principal amount and terms to
the new Registered Owner thereof, and the Borrower shall deliver the same to such Registered
Owner. The Bonds surrendered pursuant to the provisions of this Section after its delivery to the
Issuer by the Bond Purchaser shall be cancelled by the Issuer upon the execution of the new
replacement Bonds, and the same shall not be redelivered and shall be disposed of as directed by
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the Issuer. The person in whose name the Bonds shall be registered shall be deemed and regarded
as the absolute owner thereof for all purposes, and payment of or on account of the Bonds shall be
made by the Borrower on behalf of the Issuer only to or upon the written order of the Registered
Owner thereof or its legal representatives, but such registration may be changed as hereinabove
provided. All such payments shall be valid and effectual to satisfy and discharge the liability upon
the Bonds to the extent of the sum or sums so paid.
In each case of such transfer of the Bonds, the Registered Owner requesting transfer shall
pay any tax or other governmental charge required to be paid with respect to such transfer, as well
as printing, typing or copying costs and any other expenses incurred by the Borrower or the Issuer,
if any.
Upon the transfer of the Bonds in accordance with this Section, the new Registered Owner
shall become and assume the obligation of the Registrar, subject to the written consent of the
Issuer, which consent shall not be unreasonably withheld.
Section 3.08 Replacement of Lost or Damaged Bonds. In the event of loss of or
damage to any Bonds, the Issuer, at the expense of the Registered Owner thereof, may issue a
replacement Bonds identical to those lost or damaged, upon receipt of an affidavit of the Registered
Owner thereof that such Bonds have been lost or, if damaged, upon receipt of the damaged Bonds,
and of an indemnity reasonably satisfactory to the Issuer and the Borrower which may take the
form of a lost instrument Bonds. Such expense, which the Issuer and the Borrower may require to
be paid in advance, may include the cost of investigation, printing, insurance, or indemnity
premiums, counsel fees, travel, and communications.
Section 3.09 Execution of the Bonds. The Bonds shall be executed on behalf of the
Issuer with the manual or facsimile signature of its Mayor and attested by the manual or facsimile
signature of its City Clerk and shall be impressed or stamped with the corporate seal of the Issuer
or a facsimile thereof. If any officer who shall have signed the Bonds shall no longer be such
officer of the Issuer before or at the time the Bonds have been delivered, the Bonds, with the
signature thereto affixed may nevertheless be delivered by the Issuer as though that person or
persons were then in office.
Section 3.10 Authentication of Bonds. The Borrower hereby acknowledges that the
Issuer is authorized to execute and deliver the Bonds as provided herein and upon delivery for
value shall constitute a general obligation of the Borrower in accordance with the terms of this
Agreement. Execution by the Issuer shall be the conclusive and only competent evidence that the
Bonds have been duly authenticated and delivered hereunder.
Section 3.11 Ownership and Use of the Project Facilities. The Issuer agrees that,
subject to the Deed of Trust on the Property and the other Permitted Exceptions, the Borrower is
the owner of the Property. Except as otherwise permitted by this Agreement or law, the Issuer
covenants it will not take any action, or cause any action to be taken, (A) to interfere with the
Borrower’s ownership of the Property; (B) to prevent the Borrower from having possession,
custody, use and enjoyment of the Property during the term of this Agreement; or (C) to interfere
with the ownership of all or any of the Property, or to prevent the possession, custody, use and
enjoyment thereof, subsequent to any sale of all or any such portion of the Property pursuant to
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the Deed of Trust on the Property; provided, however, nothing herein shall be deemed to be a
consent to the use of the Property contrary to the terms of this Agreement or the Tax Compliance
Certificate, and the Issuer reserves the right to enforce the terms thereof in accordance therewith.
Section 3.12 Tax Covenant.
(a) The Borrower covenants for the benefit of the Issuer and the Registered
Owner of the Bonds that it will not take any action or omit to take any action of which the Borrower
is aware that is required to be taken with respect to the Bonds, the proceeds thereof, any other
funds of the Borrower or any of the Project Facilities if such action or omission (i) would cause
the interest on the Bonds to lose its exclusion from gross income for federal income tax purposes
under Section 103 of the Code; (ii) would cause interest on the Bonds to lose its exclusion from
alternative minimum taxable income as defined in Section 55(b)(2) of the Code; or (iii) would
cause interest on the Bonds to lose its exemption from Colorado income tax. The foregoing
covenant shall remain in full force and effect notwithstanding the payment in full or defeasance of
the Bonds until the date on which all obligations of the Borrower in fulfilling the above covenant
under the Code and Colorado law have been met.
(b) The Borrower shall provide to the Issuer and the Bond Purchaser on or
before [closing date], 2026, and every five years thereafter and on the Maturity Date on the Bonds
(or such earlier date if the Bonds is prepaid in full pursuant to Section 3.04) a certificate of an
Authorized Borrower Representative to the effect that all requirements of this Agreement and the
Tax Compliance Certificate with respect to arbitrage rebate as described in the Tax Compliance
Certificate have been met on a continuing basis and that timely payment of all amounts due and
owing to the United States Treasury have been made. If the certifications required hereby cannot
be made, the certificate shall so state and shall be accompanied by evidence that the Borrower has
since complied, or a description of the action that the Borrower intends to take in order to be in
compliance. The Borrower covenants and agrees to retain, at its expense, a Rebate Analyst to make
the calculations required by this paragraph.
(c) The Borrower further covenants, represents and warrants that the
procedures set forth in the Tax Compliance Certificate implementing the above covenants shall be
complied with to the extent necessary to maintain the exclusion from gross income of interest on
the Bonds for federal income tax purposes or to avoid the application of any penalties under the
Code.
(d) To the extent necessary to maintain the exclusion from gross income of
interest on the Bonds for federal income tax purposes (except to the extent noted above), the
foregoing covenants shall remain in full force and effect notwithstanding final payment of the
Bonds or defeasance of the Bonds or any other provision of this Agreement.
ARTICLE IV
PROVISIONS FOR PAYMENT
Section 4.01 Loan Payments; Delivery of Notes.
(a) The Borrower shall repay the Loan by paying when due the principal of,
and interest and other sums due on the Bonds at the times and in the manner required by Section
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3.03 hereof with respect to the payments on the Bonds. All payments of principal, interest and
other sums to be made on the Loan shall be made directly to the Registered Owner of the Bonds
for the account of the Issuer and shall constitute corresponding payments on the Bonds. The Notes
shall be executed and delivered by the Borrower payable to the order of the Issuer and assigned to
the Bond Purchaser, as the Registered Owner, concurrently with the execution and delivery of this
Agreement. The Notes shall evidence the Loan and shall secure the outstanding Bonds.
(b) Without limiting the generality of the foregoing, the Borrower shall,
immediately upon demand of any Registered Owner, make payment to such Registered Owner
such amounts as may become due on the Bonds pursuant to Section 3.03 or 3.04 hereof. The
obligations of the Borrower set forth in this subsection (b) shall survive the termination of this
Agreement.
Section 4.02 Administration Fees and Expenses. The Borrower shall pay to the Issuer
any amounts required to reimburse the Issuer for any reasonable expenses incurred by the Issuer,
whether out-of-pocket or internal, in connection with this Agreement and the Bonds, the Refunding
Project, or any other instrument or action relating to the foregoing, including reasonable fees and
disbursements of attorneys of the Issuer. Until repayment of the Loan in full by payment of the
Bonds in full, the Borrower shall pay to the Issuer its Administration Fees and Expenses which
have accrued and become payable, upon submission by the Issuer of a statement therefor. The
payment of Administration Fees and Expenses shall be made directly to the Issuer.
Section 4.03 Prepayment of Notes. The Borrower may at its option prepay the Notes in
whole or in part by directing the Issuer to prepay all or a portion of the Bonds in accordance with
the provisions of Section 3.04 hereof. If the Borrower decides to prepay all or a portion of the
Notes in accordance with the provisions of Section 3.04 hereof, the Borrower shall promptly make
prepayment of the Notes by paying (on the prepayment date for the Bonds) the prepayment price
set forth in Section 3.04 hereof, unless the Borrower revokes its election to make such prepayment.
Section 4.04 Cessation of Accrual of Interest. In the event of a prepayment of the
Bonds, interest on the portion of the Bonds which is prepaid shall cease to accrue upon the receipt
of such amount by the Registered Owner.
Section 4.05 Unconditional Obligations. Upon the making of the Loan, the obligations
of the Borrower to repay the Loan and the Notes and to pay Administration Fees and Expenses
shall be an absolute and unconditional general obligation of the Borrower, shall be binding and
enforceable in all circumstances whatsoever, and shall not be subject to setoff or counterclaim by
Borrower. The Borrower shall be obligated to make the payments hereunder, under the Loan, and
the Notes, whether or not the Property is rendered unusable to any extent from any cause
whatsoever. Without limiting the generality of the foregoing, the obligations shall not be affected
by: the exercise of any remedy by the Issuer or the Registered Owner under Section 7.02 hereof;
failure of consideration or title, frustration of commercial purpose, condemnation, destruction or
damage to the Property or other property of the Borrower; any change in the tax or other laws of
the United States of America or the State or any political subdivision of either; or inability or
failure of the Issuer or the Bond Purchaser to perform any obligation hereunder. Except as
otherwise provided herein, the Borrower’s other obligations under this Agreement shall be
similarly absolute, unconditional, binding and enforceable in all circumstances whatsoever, but
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this Section shall not affect the right of the Borrower to commence legal proceedings under Section
7.06 hereof. Except as otherwise provided in this Agreement, any obligations of the Borrower
under this Agreement shall be fully recourse to the Borrower.
Section 4.06 Setoff. In addition to, and without limiting, any lien, security interest or
encumbrance granted in the Collateral pursuant hereto or to the other Security Documents, and the
rights of set off set forth herein, in the other Borrower Documents and by applicable law, the
Borrower agrees that the Registered Owner may, at any time after the occurrence of an Event of
Default, without prior notice or demand, set off and apply any and all deposits at any time held by
the Registered Owner or any of its affiliates, and any and all obligations at any time owing by the
Borrower or any affiliate to or for the credit or the account of the Borrower, against any and all of
the obligations of the Borrower now or hereafter existing under the Borrower Documents to the
Registered Owner.
ARTICLE V
GENERAL COVENANTS
Section 5.01 Improvement, Maintenance and Modification of Property by the
Borrower. The Borrower (a) agrees that at all times during the term of this Agreement, the
Borrower will, at the Borrower’s own expense, maintain, preserve and keep the Property or cause
the Property to be maintained, preserved and kept, with the appurtenances and every part and
parcel thereof, in good repair, working order and condition (ordinary wear and tear excepted) and
that the Borrower will from time to time make or cause to be made all necessary and proper repairs,
replacements and renewals, whether interior or exterior, structural or nonstructural, ordinary or
extraordinary, or foreseen or unforeseen; and (b) shall diligently proceed with and complete any
such repair, replacement, or renewal.
Section 5.02 Insurance. The Borrower shall procure and maintain insurance in
accordance with the Security Documents and Borrower shall have furnished to Bond Purchaser
the insurance in the form and substance required by the Deed of Trust.
Section 5.03 Liens and Encumbrances. The Borrower agrees that it shall not directly or
indirectly create incur, assume or suffer to exist any mortgage, deed of trust, pledge, lien, charge
or other encumbrance upon the Property, except as permitted by each Deed of Trust or as otherwise
permitted by the Bond Purchaser.
Section 5.04 Use of Net Proceeds. Borrower shall use or apply the Net Proceeds from
any insurance payment or condemnation award received with respect to Property, or any part
thereof, in accordance with the requirements of the Deed of Trust.
Section 5.05 Compliance with Laws. The Borrower will comply with the requirements
of all applicable laws, rules and regulations, the non-compliance with which could not reasonably
be expected to result in a Material Adverse Effect.
Section 5.06 Retention of Records. The Borrower covenants to maintain or cause to be
maintained records pertaining (a) to its business and financial condition, in which true and
complete entries will be made; and (b) relating to the use of the proceeds of the Bonds, the
investment thereof and the use and operation of the Project Facilities, as applicable, for a period
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of four years after the later of (i) payment in full of the Bonds, or (ii) payment in full of any Bonds
issued to refund the Bonds.
Section 5.07 Litigation. The Borrower will promptly inform Bond Purchaser in writing
of (a) all material adverse changes in the Borrower’s financial condition; and (b) all existing and
all threatened litigation, claims, investigations, administrative proceedings or similar actions
affecting the Borrower which could reasonably be expected to result in a Material Adverse Effect.
Section 5.08 Additional Information. Absent the occurrence of an Event of Default, the
Borrower will furnish such additional information and documents with respect to Borrower’s
financial condition and business operations as Bond Purchaser or the Issuer may reasonably
request from time to time within 30 days of such request. If an Event of Default shall have occurred
and be continuing, the Borrower will furnish such additional information and documents with
respect to the Borrower’s financial condition and business operations, individually and
collectively, as the Bond Purchaser or the Issuer may request within ten (10) Business Days after
demand.
Section 5.09 Inspection. The Borrower will permit the Bond Purchaser, the Issuer or
their respective designees, at such times and at such intervals as the Bond Purchaser or the Issuer
may reasonably require and with reasonable advance written notice, (a) to inspect and copy the
Borrower’s business records; and (b) to perform audits or other inspections of the Property and
any other Collateral securing repayment of the Bonds, including records and other documents
relating to that Collateral.
Section 5.10 Taxes, Charges and Liens. The Borrower will pay and discharge when due
all of its Indebtedness and other obligations, including without limitation all assessments, taxes,
governmental charges, levies and liens, of every kind and nature, imposed upon the Borrower or
its properties, income or profits, prior to the date on which penalties would attach, and all lawful
claims that, if unpaid, might become a lien or charge upon the Borrower’s properties, income, or
profits; provided, however, the Borrower will not be required to pay and discharge any such
assessment, tax, charge, levy, lien or claim so long as the legality of the same shall be contested in
good faith by the Borrower in appropriate proceedings and, with regard to any tax, assessment,
lien, or the like in respect of any Collateral encumbered by the applicable Deed of Trust, the
Borrower must also comply with any conditions to contesting the same as set forth in the applicable
Deed of Trust.
Section 5.11 Maintenance of Licenses and Permits. The Borrower shall maintain in
full force and effect all rights and licenses necessary to carry on its business, and a ll permits,
licenses, consents and approvals necessary for the maintenance and operation of the Project
Facilities, as applicable, as to which the failure to so maintain would result in a Material Adverse
Effect on the Borrower’s operations or finances. The Borrower shall maintain its present existence
and shall maintain executive personnel and management at a level of experience and ability at least
equivalent to present personnel and management.
Section 5.12 Terrorism and Anti-Money Laundering. Borrower warrants and agrees
as follows:
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(a) As of the date hereof and throughout the term of the Bonds: (i) Borrower;
(ii) any Person controlling or controlled by Borrower; (iii) if Borrower is a privately held entity,
any Person having a beneficial interest in Borrower; or (iv) any Person for whom Borrower is
acting as agent or nominee in connection with this transaction, is not an OFAC Prohibited Person.
(b) To comply with applicable U.S. Anti-Money Laundering Laws and
regulations, all payments by Borrower to Bond Purchaser or from Bond Purchaser to Borrower
will only be made in Borrower’s name and to and from a bank account of a bank based or
incorporated in or formed under the laws of the United States or a bank that is not a “foreign shell
bank” within the meaning of the U.S. Bank Secrecy Act (31 U.S.C. § 5311 et seq.), as amended,
and the regulations promulgated thereunder by the U.S. Department of the Treasury, as such
regulations may be amended from time to time.
(c) To provide Bond Purchaser at any time and from time to time during the
term of the Loan with such information as Bond Purchaser determines to be necessary or
appropriate to comply with the Anti-Money Laundering Laws and regulations of any applicable
jurisdiction, or to respond to requests for information concerning the identity of Borrower, any
Person controlling or controlled by Borrower or any Person having a beneficial interest in
Borrower, from any governmental authority, self-regulatory organization or financial institution
in connection with its anti-money laundering compliance procedures, or to update such
information.
(d) The representations and warranties set forth in this Section shall be deemed
repeated and reaffirmed by Borrower as of each date that Borrower makes a payment to Bond
Purchaser. Borrower agrees promptly to notify Bond Purchaser in writing should Borrower
become aware of any change in the information set forth in these representations.
ARTICLE VI
SPECIAL COVENANTS
Section 6.01 No Warranty of Condition or Suitability of the Project Facilities. None
of the Issuer, the Bond Purchaser or the Registered Owner makes any warranty, either express or
implied, as to the suitability, merchantability or utility of the Project Facilities for nursing homes
or other purposes by the Borrower or its successors or as to the condition of the Property.
Section 6.02 Borrower’s Assets. The Borrower agrees that during the term of this
Agreement it will maintain its existence, will not merge or consolidate with or into another entity
or person, and will not sell or otherwise transfer to another entity all or substantially all of its
assets, provided that the Borrower may, without violating this paragraph, merge or consolidate
with or into another entity or person or sell or otherwise transfer to another entity all or
substantially all of its assets if the entity into which it is merged or consolidated or the transferee
entity (i) assumes in writing all of the obligations of the Borrower herein; and (ii) the Issuer and
the Registered Owner each consent in writing to such merger or consolidation or sale or other
transfer, such consent to be in the sole and absolute discretion of the Issuer and the Registered
Owner, respectively. The Borrower further agrees that, except as provided herein or in the Security
Documents, it has not permitted to sell, lease or sub-lease, assign, transfer or otherwise dispose of
the Collateral, or any interest therein, without prior written approval of the Bond Purchaser and
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the Issuer, and with respect to any lease or sub-lease an opinion of Bond Counsel that such activity
will not adversely affect the validity of the Bonds or the exclusion of interest on the Bonds from
gross income for federal income tax purposes. Except as provided in this Section, the Borrower
may sell or divest itself of assets not pledged hereunder or under the Security Documents without
the Registered Owner’s written consent; provided that if an Event of Default exists at the time of
such sale, the Borrower will be required to apply all net proceeds of any such sale to prepay the
principal balance of the Bonds, unless the Registered Owner otherwise agrees or consents in
writing.
Section 6.03 Reporting Requirements. The Borrower shall furnish to the Bond
Purchaser the following financial information, in each instance prepared in accordance with GAAP
consistently applied and otherwise in form and substance satisfactory to the Bond Purchaser:
(a) within one hundred fifty (150) days after the Borrower’s fiscal year end, the
Borrower’s annual Financial Statements, which include a detailed real estate schedule;
(b) within sixty (60) days after the Borrower’s fiscal year end, financial
projections for the Project for the ensuing year;
(c) not later than sixty (60) days after filing, signed copies of Borrower’s state
and federal tax returns and including all extensions and all supporting schedules (including K-1’s);
(d) promptly following the request of the Bond Purchaser, quarterly balance
sheets and income statements for itself and the Property (in form and content reasonably
satisfactory to the Bond Purchaser; and
(e) such other information as the Bond Purchaser may from time to time
reasonably request.
Section 6.04 Financial Covenants.
(a) On the Closing Date, the Borrower shall deposit an amount equal to the
Debt Service Requirement into an interest-bearing account held at the Bond Purchaser (the “Debt
Service Reserve Account”). Borrower will grant a security interest in the Debt Service Reserve
Account to the Bond Purchaser. Borrower is entitled to withdraw the funds from the Debt Service
Reserve Account for payments of principal and interest when due on the Bonds if Borrower shall
have first obtained consent of Bond Purchaser. Until the pledge on the Debt Service Reserve
Account is released, Bond Purchaser will annually, within thirty (30) days after the anniversary
of the Closing Date, review three (3) year trailing EBITDA based on the Financial Statements
delivered in accordance with this Agreement (EBITDA calculated in the same manner as it was
calculated in the financial statements delivered to Bond Purchaser prior to the closing) and when
it equals or exceeds $300,000 (“EBITDA Requirement”), Bond Purchaser will release the pledge
on the Debt Service Reserve Account and Borrower is entitled to use all funds therein for any
purpose whatsoever relating to the Project.
(b) The Bond Purchaser agrees to cooperate with the Borrower in providing
information on the investment of the amounts in any of the accounts created in this Agreement so
that the Borrower may make any required rebate payments due to the United States Treasury.
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Section 6.05 No Additional Indebtedness or Further Encumbrances. The Borrower
shall not incur any additional Indebtedness of any kind, other than trade payables incurred in the
ordinary course of Borrower’s business and as otherwise expressly contemplated herein, unless
the Borrower shall have obtained the prior written approval of the Registered Owner. Except as
otherwise expressly set forth in this Agreement, Borrower shall not, without the prior written
consent of Bond Purchaser:
(a) Create, incur, assume, permit or suffer to exist, any mortgage, deed of trust,
pledge, lien, hypothecation, charge (fixed or floating), security interest or other encumbrance
whatsoever on or transfer of the Property, except for any Deed of Trust and the Permitted
Exceptions;
(b) Become a party to any transaction whereby the Property or any portion of
any of part thereof, or all or any substantial part of the properties, assets or undertakings of
Borrower (whether legally or beneficially owned by Borrower), would become the property of any
other Person, whether by way of transfer, sale, conveyance, lease, sale and leaseback, or otherwise;
(c) Change the use of the Property;
(d) Transfer, convey, hypothecate, or sell (or permit to be transferred,
conveyed, hypothecated or sold) any interests in Borrower; and
(e) Change the control or management of the Borrower or any authorized
signatory of Borrower.
Section 6.06 Further Assurances. The Issuer, the Borrower, and the Bond Purchaser
agree that each 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 to carry out this Agreement.
Section 6.07 Material Adverse Change. The Borrower shall not permit or suffer to exist
any change, occurrence or event that results in any Material Adverse Effect that impairs its ability
to perform its obligations hereunder and under the other Borrower Documents.
Section 6.08 Dissolution or Liquidation. The Borrower shall not dissolve, liquidate,
merge, or consolidate with or into any other entity or turn over the management or operation of its
property, assets or business to any other Person, except with the express written consent of the
Bond Purchaser.
Section 6.09 Relationship. Borrower shall use its commercially reasonable efforts to
maintain its operating, depository, reserve and other accounts at First American State Bank, so
long as the Registered Owner of the Bonds is First American State Bank, or a subsidiary or affiliate
thereof.
Section 6.10 Release and Indemnification.
(a) Indemnification of Issuer.
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(i) Extent of gross negligence or willful misconduct by the Issuer, the
Borrower shall indemnify, hold harmless and defend the Issuer and the officers, members,
directors, officials, agents and employees of the Issuer from and against: (i) any and all claims or
proceedings by or on behalf of any person directly or indirectly arising from any cause whatsoever
in connection with the Property, the Refunding Project, the Bonds, the Borrower Documents, the
Security Documents or any act or omission of the Borrower or any of its agents, servants,
employees or licensees, in connection with the Property, the Refunding Project, the Bonds, the
Borrower Documents and the Security Documents; and (ii) all reasonable costs, expenses,
damages, counsel fees or liabilities incurred in connection with any such claim or proceeding
brought thereon. In the event that any action or proceeding is brought against the Issuer or any of
its officers, members, directors, officials, agents or employees, with respect to which indemnity
may be sought from the Borrower hereunder, the Borrower, upon written notice from the Issuer,
shall assume the investigation and defense of the Issuer thereof, including the employment of
counsel selected by the Issuer and the payment of all reasonable expenses related thereto; provided,
that no settlement of a claim or proceeding against an indemnified party shall occur without the
consent of such indemnified party. Notwithstanding any transfer of the Property in accordance
with the provisions of this Agreement, the Borrower Documents and the Security Documents, the
Borrower shall remain obligated to indemnify the Issuer against claims arising from the period
prior to and during all times when the Borrower owned or had an interest in the Property.
(ii) The Bond Purchaser shall indemnify, hold harmless and defend the
Issuer and its officers, members, directors, officials, agents and employees and each of them
(except to the extent of gross negligence or willful misconduct by the Issuer) from and against:
any and all losses, claims, damages or liabilities caused by or on behalf of any person arising
directly or indirectly from the willful misconduct or gross negligence of the Bond Purchaser solely
in connection with the application of the payments of the Notes to the repayment of the Bonds. In
the event that any action or proceeding is brought against the Issuer or any of its officers, members,
directors, officials or employees, with respect to which indemnity may be sought from the Bond
Purchaser hereunder, the Bond Purchaser, upon written notice from the Issuer, shall assume the
investigation and defense of the Issuer, including the employment of counsel selected by the Issuer
or the payment of all expenses related thereto; provided, that no settlement of a claim or proceeding
against the Issuer shall occur without the consent of the Issuer which will not be unreasonably
withheld, conditioned or delayed.
(iii) The rights of the Issuer under this Section shall survive the payment
in full of the Bonds and termination of this Agreement.
(b) Indemnification of Registered Owner.
(i) The Registered Owner and its participants, if any, affiliates and
designees and their respective directors, officers employees, attorneys and agent and each person,
if any, who has the power, directly or indirectly, to direct or cause the direction of the management
or policies, now or hereafter, of such Registered Owner (the “Indemnified Registered Owner
Parties”) will not incur any liability for any acts or omissions (and Borrower hereby expressly
waives any and all related claims and actions against any Indemnified Registered Owner Party).
Borrower further agrees to release from, pay and hold the Indemnified Registered Owner Parties
harmless, from and against any and all liabilities, losses, damages, costs, expenses (including
27
reasonable attorneys’ fees and court costs, including those for post judgment and appellate
proceedings), judgments, claims, demands, suits, actions or other proceedings of whatsoever kind
or nature (including, without limitation , those in any manner directly or indirectly arising or
resulting from, out of, or in connection with, any injury to, or death of, any person or any damage
to property but excluding as to the Indemnified Registered Owner Parties those arising or resulting
from any intentional misrepresentation, gross negligence or any willful or wanton misconduct of
such Indemnified Registered Owner Parties) in any manner directly or indirectly (in any case,
whether or not by the Borrower or its successors and assigns, or directly or indirectly through the
agents, contractors, employees, licensees or otherwise of the Borrower or its successors and
assigns) by any persons or entity whatsoever, to the extent arising or purportedly arising from this
Agreement, the Bonds, the Notes, the Security Documents, the other Borrower Documents, the
initial offer and sale of the Bonds, or the transactions contemplated thereby, the Collateral and the
ownership, possession, use, or operation by the Borrower of the Collateral, the breach or violation
of or any material inaccuracy or material omission in any agreement, covenant, representation or
warranty of the Borrower set forth herein or in any document delivered pursuant hereto, including,
without limitation, the Deed of Trust, the presence of any Hazardous Material or underground
storage tanks on or under the Collateral or any escape, seepage, leakage, spillage, discharge,
emission or release of any Hazardous Materials from the Collateral, any liens against the Collateral
permitted under or imposed by any Environmental Laws, or any violation or actual or asserted
liability or obligations of the Borrower under any Environmental Laws, regardless of whether or
not caused by, or within the control of, the Borrower, any actual or asserted liability or obligations
of the aforesaid persons under any Environmental Laws relating to the Collateral, regardless of
whether or not caused by, or within the control of, the Borrower.
(ii) The Indemnified Registered Owner Parties shall give prompt written
notice to the Borrower with respect to matters to which indemnification pursuant to this Section is
applicable. If the Borrower is not so notified, or if the Borrower is not afforded reasonable
opportunity to participate in any such matter by reason of any action or inaction of the Indemnified
Registered Owner Parties, the Borrower shall have no liability to such Indemnified Registered
Owner Parties under this Section with respect to such matter if such failure to receive notification
or participate materially and adversely prejudices the Borrower. The Borrower shall not be liable
for any settlement of any such lawsuit or other matter effected without the consent of the
Indemnified Registered Owner Parties unless such liability results from a final judgment. The
Indemnified Registered Owner Parties shall have the right to employ, at the Borrower’s expense,
separate counsel in any lawsuit only if the Indemnified Registered Owner Parties reasonably
conclude that a potential conflict of interest exists between the Indemnified Registered Owner
Parties and the Borrower. All covenants, stipulations, promises, agreements and obligations of the
Indemnified Registered Owner Parties, contained herein shall be deemed to be the covenants,
stipulations, promises, agreements and obligations of the Indemnified Registered Owner Parties,
and not of any current, future or former member, director, officer, employee, or other agent of the
Indemnified Registered Owner Parties, in his or her individual capacity, and no recourse shall be
had for the payment of the principal of, premium, if any, or interest on the Bonds or for any claim
based thereon or hereunder against any current, future or former member, director, officer,
employee, or other agent of the Indemnified Registered Owner Parties, or any natural person
executing the Bonds.
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(iii) The indemnification arising under this Section shall continue in full
force and effect notwithstanding the full payment of all obligations under this Agreement or the
termination of this Agreement for any reason.
(iv) The foregoing release, protection, defense, hold harmless and
indemnification provisions shall not apply to any claim, proceeding or action instituted by the
Borrower against any Registered Owner relating to any warranty, representation, covenant or
obligation of such Registered Owner under this Agreement if it is ultimately determined by a court
or government agency (from which an appeal is not available or with respect to which the time for
appeal has expired) that the Bond Purchaser breached or violated any such warranty,
representation, covenant or obligation.
Section 6.11 Authority of Authorized Borrower Representative. Whenever under the
provisions of this Agreement the approval of the Borrower is required, or the Issuer or the
Registered Owner is required to take some action at the request of the Borrower, such approval or
such request shall be made by the Authorized Borrower Representative unless otherwise specified
in this Agreement, and the Issuer or the Registered Owner shall be authorized to act on any such
approval or request. The Borrower shall have no complaint against the Issuer or the Registered
Owner as a result of any such action taken at the request or direction of such Authorized Borrower
Representative.
Section 6.12 Authority of Authorized Issuer Representative. Whenever under the
provisions of this Agreement the approval of the Issuer is required, or the Borrower or the
Registered Owner is required to take some action at the request of the Issuer, such approval or
request shall be made by the Authorized Issuer Representative unless otherwise specified in this
Agreement, and the Borrower or the Registered Owner shall be authorized to act on such approval
or request. The Issuer shall have no complaint against the Borrower or the Registered Owner as a
result of any such action taken at the request of such Authorized Issuer Representative.
Section 6.13 Authority of Authorized Registered Owner Representative. Whenever
under the provisions of this Agreement the approval of the Registered Owner is required, or the
Borrower or the Issuer is required to take some action at the request of the Registered Owner, such
approval or request shall be made by the Authorized Registered Owner Representative unless
otherwise specified in this Agreement, and the Borrower or the Issuer shall be authorized to act on
such approval or request. The Registered Owner shall have no complaint against the Borrower or
the Issuer as a result of any such action taken at the request of such Authorized Registered Owner
Representative.
Section 6.14 Right of Access. Borrower agrees, subject to reasonable security and safety
regulations and to reasonable requirements as to notice and non-interference with operations being
conducted thereon, that the Issuer and the Registered Owner and their respective duly authorized
agents shall have the right at any reasonable time and from time to time, in each instance upon
reasonable notice, during normal business hours, to enter upon the Property for examination and
inspection. Notwithstanding the foregoing, during the continuance of any Event of Default that
jeopardizes the Registered Owner’s interest in the Collateral, the Registered Owner may inspect
the property at any time upon notice to the Borrower Representative, which may be given verbally.
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Section 6.15 Waiver of Presentment. Except as otherwise provided herein, the
Borrower waives presentment and demand for payment, notice of acceleration or of maturity,
protest and notice of protest and nonpayment, bringing of suit and diligence in taking any action
to collect sums owing hereunder and agrees that its liability on the Bonds or the Notes shall not be
affected by any release or change in any security for the payment of the Bonds or the Notes or
release of anyone liable hereunder. No extension of time for the payment of the Bonds or the Notes,
or any installment thereof or other modification of the terms hereof made by the Registered Owner
with any person now or hereafter liable for the payment of the Bonds or the Notes, shall affect the
original liability under the Bonds and the Notes, unless the Registered Owner is a party to such
agreement.
Section 6.16 Know your Customer. Borrower acknowledges and agrees to cooperate
with the Bond Purchaser with respect to (for Bond Purchaser and its successors and assigns) all
requirements upon Bond Purchaser to obtain, verify and record information that identifies
Borrower in accordance with the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law
October 26, 2001)), as amended from time to time.
Section 6.17 Notices.
(a) Promptly, but not later than five (5) Business Days, after the occurrence of
any event that constitutes an Event of Default hereunder or which event would, with the giving of
notice or passage of time or both, constitute an Event of Default (a “Default”), the Borrower shall
notify the Registered Owner and the Issuer in writing of such occurrence, which notice shall
include a detailed statement by a responsible officer of the Borrower of the steps being taken by
the Borrower to cure the effect of such Default or Event of Default.
(b) The Borrower shall also deliver, or cause to be delivered, prompt notice to
the Issuer and the Registered Owner of any event or occurrence that could reasonably be expected
to have a Material Adverse Effect, including the institution of (and once instituted, any adverse
determination or change in) any action, suit, investigation, or proceeding that, if adversely
determined, could reasonably be expected to have a Material Adverse Effect
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
Section 7.01 Events of Default. The following shall be “Events of Default” under this
Agreement and the term “Event of Default” shall mean, whenever used in this Agreement, any one
or more of the following:
(a) failure by the Borrower to make any Loan Payment on the Notes so that any
installment of principal of or interest on the Bonds is not paid within ten (10) days of written notice
from Bond Purchaser;
(b) failure by Borrower to comply with any of the financial covenants or any
other covenant or agreement in this Agreement or any other of the Borrower Documents within
thirty (30) days of written notice thereof provided such failure is not another enumerated Event of
Default in which case that Event of Default shall apply;
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(c) the Borrower (i) dissolves, liquidates, winds-up its affairs, consolidates,
merges, or otherwise sells all or substantially all of its assets or assigns, transfers, leases, disposes
of, or alters the Collateral in violation of this Agreement or any of the other Borrower Documents;
(ii) fails to satisfy the Debt Service Reserve Requirement; or (iii) assigns or attempts to assign this
Agreement or any of its rights under this Agreement, except as expressly permitted hereby;
(d) failure by the Borrower to (i) pay Administration Fees and Expenses for a
period of ten (10) days after the date on which the Borrower receives notice of such failure from
Bond Purchaser or the Issuer; or (ii) observe and perform in any material respect any other
covenant, condition or agreement on the part of the Borrower to be observed or performed
hereunder, other than those under subsections (a), (b) and (c) of this Section, for a period of thirty
(30) days after the date on which the Borrower receives written notice of such failure from Bond
Purchaser or the Issuer, unless the Issuer, the Bond Purchaser and the Registered Owner shall agree
in writing to an extension of such period prior to its expiration; provided, however, that if the
Borrower has timely commenced and is continuously proceeding with due diligence to cure the
default such period shall be extended at the Registered Owner’s discretion to such reasonable
period as the Registered Owner deems acceptable to permit the Borrower to cure such default,
which in no event shall be greater than an additional thirty (30) days;
(e) the entry of a decree or order for relief in respect of the Borrower in an
involuntary case under the federal bankruptcy laws, as now or hereafter constituted, or any other
applicable federal or state bankruptcy, insolvency or other similar law, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or other similar official) of the Borrower or
for any substantial part of the property of the Borrower or ordering the dissolution or liquidation
of the affairs of the Borrower and the continuance of any such decree or order unstayed and in
effect for a period of sixty (60) consecutive days;
(f) the commencement by the Borrower of a voluntary case or involuntary
bankruptcy under the federal bankruptcy laws, as now or hereafter constituted, or any other
applicable federal or state bankruptcy, insolvency or other similar law, or the consent by the
Borrower to the appointment of or taking possession of the Borrower by a receiver, liquidator,
assignee, trustee, custodian, sequestrator (or other similar official) or of any substantial part of the
property of the Borrower or the making by the Borrower of any assignment for the benefit of
creditors;
(g) if a notice of lien, levy, or assessment is filed of record with respect to all
or any material part of the property of Borrower that is not released within sixty (60) days;
(h) the insolvency of the Borrower or the failure of the Borrower generally to
pay its debts as such debts become due;
(i) the occurrence of an “event of default” under the Deed of Trust or any other
Borrower Document and the expiration of any applicable cure or grace period;
(j) any lien or encumbrance granted or intended to be granted to the Registered
Owner pursuant to this Agreement or the Borrower Documents ceases to be of effect or to have
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the intended priority (other than to the extent directly caused by the Registered Owner or any of
its employees or agents);
(k) a “prohibited transaction” (as defined in ERISA) occurs with respect to any
employee benefit plan sponsored by the Borrower;
(l) the Borrower suffers a Material Adverse Effect;
(m) a judgment is rendered against the Borrower in excess of $150,000 or that
could reasonably be expected to have a Material Adverse Effect unless (i) such judgment is paid,
vacated, discharged, stayed, or bonded pending appeal within 45 days from entry thereof or fully
covered by insurance as to which the relevant insurance company has been notified and has not
denied coverage; or (ii) the Borrower has set aside adequate reserves on its balance sheet to cover
such judgment as reasonably determined by the Registered Owner; and
(n) any representation or warranty made by the Borrower herein or in any other
Borrower Document executed in connection herewith was untrue in any material respect when
made or effective, and the Issuer or the Registered Owner delivers notice thereof to the Borrower.
Section 7.02 Remedies on Default. Whenever any Event of Default shall have happened
and be continuing, the Issuer, the Registered Owner and the Bond Purchaser shall have the
following rights and remedies:
(a) The Registered Owner or the Bond Purchaser may, at its option, by five (5)
Business Days’ written notice to the Borrower and the Issuer, declare an amount equal to the
aggregate principal amount of the Bonds then unpaid, together with an amount equal to the interest
accrued thereon, to be immediately due and payable and such amount shall become immediately
due and payable on the date specified; provided, however, in the case of Event of Default 7.1(f)
Bond Purchaser does not have to send the above written notice and the aggregate principal amount
of the Bonds then unpaid, together with an amount equal to the interest accrued thereon, is upon
the happening of such Event of Default immediately due and payable.
(b) The Registered Owner, the Bond Purchaser or the Issuer may enforce the
provisions of this Agreement by appropriate legal proceedings for specific performance or for the
enforcement of any other appropriate legal or equitable remedy, and/or for damages caused by any
breach by the Borrower of the provisions of this Agreement, including court costs, reasonable fees
of counsel, and other costs and expenses incurred in enforcing the obligations of the Borrower
hereunder.
(c) The Bond Purchaser or the Registered Owner, as assignee thereof, may
pursue any remedy provided in the Deed of Trust or any other Borrower Document or Security
Document.
(d) The Registered Owner may at any time and from time to time, without
notice to the Borrower, any such notice being absolutely, unconditionally, irrevocably and
expressly waived forever by the Borrower, set off and apply, directly or through any of its
affiliates, any and all deposits and other properties and assets at any time held in the possession,
custody or control of the Registered Owner or any of its affiliates (including, for so long as the
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Bond Purchaser is the Registered Owner), and any Indebtedness or other amount or obligation at
any time owing by the Registered Owner or any of its affiliates, to or for the credit, account or
benefit of the Borrower, against any and all of the payment obligations now or hereafter existing
hereunder or under any of the other Borrower Documents.
Section 7.03 Remedies Cumulative. The rights and remedies of the Registered Owner,
the Bond Purchaser and of the Issuer provided herein shall be cumulative and shall not exclude
any other available rights and remedies. No failure of the Registered Owner, the Bond Purchaser
or the Issuer to insist upon strict performance of any obligation hereunder or to exercise any
remedy for any violation thereof shall be taken as a future waiver of the right to insist upon strict
performance of the same or any other obligation or to exercise any remedy.
Section 7.04 Waiver and Cure of Default. Once occurred, an Event of Default will
continue until waived. Any Event of Default may be waived in writing at any time by all of the
Issuer, the Registered Owner and the Bond Purchaser; provided, however the Registered Owner
may waive any Event of Default caused by the Borrower’s failure to comply with any of the special
covenants or financial covenants without the consent of the Issuer (but with written notice thereof
to the Issuer). If any agreement contained in this Agreement should be breached by a party and
thereafter waived by the other parties, such waiver shall be limited to the particular breach so
waived and shall not be deemed to waive any further or other breach hereunder.
Section 7.05 Application of Moneys. Except as may otherwise be required under any
Security Document, all moneys realized through exercising the remedies provided in Section 7.02
hereof shall be paid first to the Registered Owner and used to pay the principal of, premium, if
any, and interest and other sums on the Bonds and the Notes then due and then to satisfy any other
obligations of the Borrower under this Agreement and the other Borrower Documents. If the
available moneys are insufficient to pay the principal of, premium, if any, and interest and other
sums on the Bonds and the Notes then due, they shall be applied by the Registered Owner first to
the payment of installments of interest and other sums then due on the Bonds and the Notes and
second to the unpaid principal of the Bonds and the Notes which shall then be due.
Section 7.06 Failure of the Issuer to Perform Obligations. If the Issuer shall fail to
observe or perform any covenant, condition, agreement or provision contained in this Agreement,
the Borrower, the Registered Owner or the Bond Purchaser may take whatever legal proceedings
may be required to compel full performance by the Issuer of its obligations, and, in addition, the
Registered Owner or the Bond Purchaser may, to whatever extent it deems appropriate for its
protection, perform any such obligation in the name of the Issuer and on the Issuer’s behalf. Any
judgment against the Issuer shall be enforceable only against the funds and accounts attributable
to the Bonds and this Agreement in the hands of the Borrower, the Registered Owner or the Bond
Purchaser, and there shall be no deficiency or other judgment against the general credit of the
Issuer.
Section 7.07 Agreement to Pay Attorneys’ Fees and Expenses. If the Borrower should
default under any of the provisions of this Agreement and the Issuer, the Registered Owner or the
Bond Purchaser should employ attorneys or incur other expenses for the collection of amounts
payable hereunder or the enforcement of performance or observance of any obligation or
agreement on the part of the Borrower herein contained, the Borrower agrees that it will on demand
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therefor pay to the Issuer, the Registered Owner or the Bond Purchaser, as the case may be, the
reasonable fee of such attorneys and such other reasonable expenses incurred by the Issuer, the
Registered Owner and the Bond Purchaser. The Borrower shall further pay or reimburse any and
all reasonable costs and expenses incurred by the Bond Purchaser (or any subsequent Registered
Owner, as assignee) in connection with the preparation and execution of this Agreement and the
other Borrower Documents, all waivers, releases, discharges, satisfactions, modifications and
amendments thereof, and consents with respect thereto, all periodic audits, appraisals and other
evaluations of the Property, the closing of the transactions contemplated hereby, and the
administration, maintenance, enforcement and adjudication of this Agreement. The Borrower shall
make payment of such amounts within 30 days of an invoice or billing statement therefor if no
Event of Default is then occurring and on demand if an Event of Default is then occurring. All fees
and other prepaid charges owed to the Registered Owner are earned fully as of the date of the
Notes and will not be subject to refund except as required by applicable law.
Section 7.08 Reinstatement. In the event any payment of or any application of any
amount, asset or property pursuant to this Agreement at any time is rescinded or must otherwise
be restored or returned by the Registered Owner upon the insolvency, receivership or any
bankruptcy of any Borrower, then, to the full extent permitted by applicable law, the terms and
provisions of this Agreement and the other Borrower Documents will continue to apply, or will be
reinstated if not then in effect, as the case may be, with respect to the payment obligation so
rescinded, restored or returned, all as though such payment or application had never been made.
Section 7.09 Certain Performance by the Registered Owner. The Registered Owner
may, but is not required to, make any payment or perform any obligation under this Agreement or
any other Borrower Document that the Borrower has failed to make or perform, and the Borrower
irrevocably appoints the Registered Owner as the true and lawful attorney-in-fact for the Borrower
to make any such payment and perform any such obligation. Without limiting the generality of the
foregoing, the Registered Owner may at the Borrower’s expense purchase any insurance that the
Borrower must maintain under this Agreement or any other Borrower Document, or pay any
premium due thereunder, but the Borrower fails to maintain or pay.
ARTICLE VIII
MISCELLANEOUS
Section 8.01 Term of This Agreement. This Agreement shall remain in full force and
effect until the Bonds and the Notes have been paid in full and all the other rights and obligations
of the parties hereunder have been satisfied. All representations, covenants and certifications by
the Borrower as to all matters affecting the tax-exempt status of the Bonds or the payment of
additional amounts resulting from a Determination of Taxability shall survive the termination of
this Agreement until all statutes of limitation as to any tax liability that may be incurred shall have
expired.
Section 8.02 Notices. All notices, certificates, requests or other communications
hereunder shall be sufficiently given when delivered by electronic means followed by a hard copy,
mailed by overnight, registered or certified mail return receipt requested or hand-delivered and
receipt thereof acknowledged as follows:
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to the Issuer: City of Fort Collins, Colorado
300 LaPorte Avenue
Fort Collins, CO 80521
Attention: City Attorney
Telephone: (970) ______________
to the Bond Purchaser: First American State Bank
8390 East Crescent Parkway, Suite 100
Greenwood Village, CO 80111
Attn: Dave Korn, Chief Lending Officer
Telephone: (303) 694-6464
to Borrower: THE RESIDENCE @ OAKRIDGE, LLC
999 Ponce de Leon Blvd., Suite 950
Coral Gables, Florida 33134
Telephone: (305-444-5007)
A duplicate copy of each notice, certificate, request or other communication given
hereunder to the Issuer, the Borrower or the Bond Purchaser shall also be given to the others and,
if the Bond Purchaser is not the Registered Owner, to the then current Registered Owner at the
address therefor in the registration books maintained by the Registrar. The Issuer, the Borrower,
the Bond Purchaser and any other Registered Owner (as the case may be), by written notice given
hereunder, may designate any further or different addresses to which subsequent notices,
certificates, requests or other communications shall be sent. Notices are deemed given on the date
of delivery, if delivered by hand, one (1) Business Day after being sent by overnight or courier and
five (5) Business Days after deposit in the mail, if sent by registered or certified mail.
Notwithstanding the foregoing, invoices, periodic statements and reports, compliance certificates,
and informal correspondence may be forwarded by electronic mail and other means as the Issuer,
the Bond Purchaser (if it is the Registered Owner or the Registrar) or, if applicable the Registered
Owner (if other than the Bond Purchaser) may permit from time to time.
Section 8.03 Binding Effect. This Agreement shall inure to the benefit of and shall be
binding upon the Issuer, the Borrower, the Bond Purchaser, any other Registered Owner and their
respective successors and assigns.
Section 8.04 Third-Party Beneficiaries. Each Registered Owner, if not a party hereto
or an assignee of the rights of the Bond Purchaser or another Registered Owner, as the case may
be, shall be a third-party beneficiary of this Agreement.
Section 8.05 Severability. If any section or provision of this Agreement, or any
covenant, stipulation, obligation, agreement, act or action, or part thereof made, assumed, entered
into or taken thereunder or any application thereof, is for any reason held to be illegal or invalid,
such illegality or invalidity shall not affect the remainder thereof or any other section or provision
thereof or any other covenant, stipulation, obligation, agreement, act or action or part thereof,
made, assumed, entered into or taken thereunder, which shall be construed and enforced as if such
35
illegal or invalid portion were not contained therein, nor shall such illegality or invalidity of any
application thereof affect any legal and valid application thereof, and each such section, provision,
covenant, stipulation, obligation, agreement, act or action, or part thereof shall be deemed to be
effective, operative, made, entered into or taken in the manner and to the full extent permitted by
law.
Section 8.06 Amendments, Changes and Modifications. The Issuer, the Bond
Purchaser and the Borrower may amend, change or modify this Agreement pursuant to a written
amendment executed by all parties. Notwithstanding anything herein to the contrary, the Borrower
and the Bond Purchaser may amend this Agreement without the Issuer’s consent (but with written
notice by the Borrower to the Issuer of such amendment) so long as such amendments are limited
to financial reporting or financial covenants relating to the Borrower and so long as such
amendments do not adversely affect the Issuer or its interest (including, without limitation, the
validity of the Bonds, payment of its fees and expenses and its rights to indemnification) or
obligations hereunder. The Borrower shall also obtain an opinion of Bond Counsel, addressed to
the Issuer that such amendments do not result in interest payable on the Bonds becoming
includable in the gross income of the Registered Owner.
Section 8.07 Transfers. The Bond Purchaser, at its sole discretion, may upon written
notice to the Issuer transfer this Agreement to any affiliated entities, without obtaining any consent
or approval by the Issuer or the Borrower; provided, however, that, if reasonably possible prior to
any such transfer, the Bond Purchaser shall notify the Borrower and the Issuer of such proposed
transfer; otherwise the Bond Purchaser shall notify the Borrower and the Issuer of such transfer
promptly following such transfer.
Section 8.08 Execution in Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original but all of which shall constitute but one and the
same agreement.
Section 8.09 Governing Law. This Agreement shall be governed by the laws of the State
of Colorado.
Section 8.10 Captions. The captions or headings in this Agreement are for convenience
only and no way define, limit or describe the scope or intent of any provisions or sections of this
Agreement.
Section 8.11 Limitation on Liability of Issuer. The Issuer shall not be obligated to pay
the principal of, premium, if any, or interest on the Bonds, except from Revenues. The Bond
Purchaser hereby acknowledges that the Issuer’s sole source of moneys to pay principal of,
premium, if any, or interest on the Bonds will be provided by such Revenues.
THE BONDS SHALL BE A SPECIAL, LIMITED OBLIGATION OF THE ISSUER
PAYABLE SOLELY FROM REVENUES. THE BONDS SHALL CONSTITUTE A VALID
CLAIM OF THE REGISTERED OWNER THEREOF AGAINST THE REVENUES, WHICH
ARE PLEDGED TO SECURE THE PAYMENT OF THE PRINCIPAL OF, PREMIUM, IF ANY,
AND INTEREST ON THE BONDS, AND WHICH SHALL BE USED FOR NO OTHER
PURPOSE EXCEPT AS EXPRESSLY AUTHORIZED IN THIS AGREEMENT. THE BONDS
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SHALL NOT BE A DEBT OR INDEBTEDNESS OF THE ISSUER, THE STATE OR ANY
POLITICAL SUBDIVISION OF EITHER THE ISSUER OR THE STATE, AND NEITHER THE
ISSUER, THE STATE NOR ANY POLITICAL SUBDIVISION THEREOF SHALL BE
LIABLE FOR PAYMENT OF THE BONDS OR FOR THE PERFORMANCE OF ANY
PLEDGE, OBLIGATION OR AGREEMENT OF ANY KIND WHATSOEVER WITH
RESPECT THERETO EXCEPT AS SET FORTH HEREIN, NOR IN ANY EVENT SHALL
PRINCIPAL OF, PREMIUM, IF ANY, AND INTEREST ON THE BONDS BE PAYABLE OUT
OF ANY FUNDS OR ASSETS OTHER THAN THOSE PLEDGED TO THAT PURPOSE BY
THE ISSUER HEREIN, NOR IN ANY EVENT SHALL THE BONDS BE PAYABLE OUT OF
ANY FUNDS, ASSETS OR FACILITIES OTHER THAN THOSE OF THE ISSUER PLEDGED
UNDER THIS AGREEMENT. THE BONDS SHALL NOT CONSTITUTE AN
INDEBTEDNESS OR A MULTIPLE FISCAL-YEAR FINANCIAL OBLIGATION WITHIN
THE MEANING OF ANY CONSTITUTIONAL OR STATUTORY DEBT LIMITATION OR
RESTRICTION. THE BONDS DO NOT CONSTITUTE A DEBT, LOAN, CREDIT OR
PLEDGE OF THE FAITH AND CREDIT OR TAXING POWER OF THE ISSUER, THE STATE
OR ANY POLITICAL SUBDIVISION THEREOF.
Section 8.12 No Personal Liability of Officials of the Issuer. NONE OF THE
COVENANTS, STIPULATIONS, PROMISES, AGREEMENTS AND OBLIGATIONS OF THE
ISSUER CONTAINED HEREIN SHALL BE DEEMED TO BE COVENANTS,
STIPULATIONS, PROMISES, AGREEMENTS OR OBLIGATIONS OF ANY PAST,
PRESENT OR FUTURE MEMBER OF THE ISSUER’S CITY COUNCIL, OR THE OFFICERS,
COUNSEL, FINANCIAL ADVISORS, EMPLOYEES OR AGENTS OF THE ISSUER, OR OF
ANY SUCCESSOR THERETO, AND NO RECOURSE SHALL BE HAD FOR THE PAYMENT
OF THE PRINCIPAL OF OR INTEREST ON THE BONDS AGAINST ANY PAST, PRESENT
OR FUTURE MEMBER OF THE ISSUER’S CITY COUNCIL, OR THE OFFICERS,
COUNSEL, FINANCIAL ADVISORS, EMPLOYEES OR AGENTS OF THE ISSUER, OR OF
ANY SUCCESSOR THERETO, UNDER ANY RULE OF LAW OR EQUITY, STATUTE OR
CONSTITUTION, AND ALL SUCH LIABILITY IS HEREBY EXPRESSLY WAIVED AND
RELEASED AS A CONDITION OF, AND CONSIDERATION FOR, THE EXECUTION AND
ISSUANCE OF THE BONDS.
Section 8.13 Payments Due on Holidays. If the date for making any payment or the last
date for performance of any act or the exercising of any right, as provided in this Agreement, shall
be a legal holiday or a day on which state or national banking institutions in the state in which the
principal office of the Bond Purchaser is located are authorized by law to remain closed, such
payment may be made or act performed or right exercised on the next succeeding day not a legal
holiday or a day on which such banking institutions are not authorized by law to remain closed,
and interest will continue to accrue to such date.
Section 8.14 Conditions to Closing. The purchase of the Bonds by the Bond Purchaser
is subject to the fulfillment of each of the following conditions and receipt by the Bond Purchaser
of the following items, in form and substance satisfactory to the Bond Purchaser in its sole
discretion:
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(a) Appraisal. Borrower has previously provided to Bond Purchaser an
independent appraisal dated September 4, 2020 which is reasonably acceptable to the Bond
Purchaser.
(b) Environmental Assessment. The “Phase I” environmental assessment of
the Property from Corn & Associates ordered by Borrower at Borrower’s expense from an
environmental engineering company acceptable to the Bond Purchaser, assessing the
environmental condition of the Property.
(c) Title Insurance. A title commitment issued by the Title Company
reasonably acceptable to the Bond Purchaser, together with copies of all documents identified
therein, and pursuant to which the Title Company agrees to issue to the Bond Purchaser an ALTA
form of loan policy acceptable to the Bond Purchaser insuring the Deed of Trust on the Property
as a valid first lien and in total for the full amount of the Bonds, free and clear of all liens (including
mechanic’s liens) and encumbrances, and subject only to the Permitted Exceptions and such
exclusions from coverage and such exceptions to title as may be approved by the Bond Purchaser,
and containing such endorsements as the Bond Purchaser may require. The title commitment shall
name the Bond Purchaser, its successors and/or assigns, as the insured under the loan policy. Title
to the Property shall be good and marketable.
(d) Survey. Borrower has provided Bond Purchaser with an as-built ALTA
boundary and location survey of the Property dated September 13, 2002 prepared by Sear Brown
(the “Survey”), which Bond Purchaser has determined is acceptable to Bond Purchaser. If
requested, Borrower will execute an Affidavit that there have been no changes to the Property
since completion of the Survey.
(e) Flood Zone Certification. If the Property is in a flood plain, evidence of
flood insurance.
(f) Organizational Documents. Copies of the organizational documents of
Borrower, including, without limitation, the articles of incorporation, bylaws, and good standing
certificates, all of which shall be reasonably satisfactory to the Bond Purchaser.
(g) Governmental Permits. Evidence in the form of the current License issued
by the Colorado Department of Public Health and Environment effective January 4, 2021,
indicating that the Property is currently licensed to engage in the business of an Assisted Living
Residence/Alternative Care Facility in the State of Colorado. All approvals and permits required
for the operation of the Property must be legally valid and remain in full force and effect
throughout the term of the Bonds. In the event that any of such approvals or permits is invalidated,
rescinded or suspended, the Bond Purchaser will not be obligated to close on the Bonds during the
period that any invalidation, rescission or suspension continues.
(h) Utility Services. Evidence that adequate utility services are available at the
Property, including water, sewer, electric, gas and telephone, and the Borrower may tap into such
services.
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(i) Other Documents. Such other documents, instruments, pledges, and
certificates including, without limitation, proofs, opinions and other assurances, as the Bond
Purchaser or its counsel may reasonably require.
(j) Fees. All fees, costs, and expenses in connection with the issuance of the
Bonds shall have been paid (or will be authorized for payment out of the proceeds of the Bonds),
including, without limitation, title insurance premiums and related fees and costs, legal fees,
recording fees, amounts due to consultants and advisors, and the fee of .50% of the principal
amount of the Bonds due to the Bond Purchaser.
(k) Borrower Documents and the Security Documents. The Borrower
Documents and the Security Documents shall be in form and content acceptable to the Bond
Purchaser and the Issuer and their respective counsel, shall have been duly executed and delivered
by each of the respective parties thereto, shall not have been modified, amended or rescinded, and
shall be in full force and effect as of the date of issuance of the Bonds.
(l) Opinion of Bond Counsel. The Bond Purchaser and the Issuer shall have
received opinions of Butler Snow LLP, as Bond Counsel, dated the date of issuance of the Bonds
and addressed to the Bond Purchaser and the Issuer, including opinions as to the valid authorization
and issuance of the Bonds, the due adoption of the Issuer Ordinance, to the effect that the Bonds
are a valid and binding limited revenue obligation of the Issuer, and addressing the tax treatment
of interest on the Bonds under federal and State law, and otherwise in form and substance
satisfactory to the Bond Purchaser and its counsel and the Issuer and its counsel.
(m) Opinion of Counsel to the Borrower. The Bond Purchaser and the Issuer
shall have received an opinion of counsel to the Borrower dated the date of issuance of the Bonds
and addressed to the Bond Purchaser and the Issuer, with respect to such matters as the Bond
Purchaser or the Issuer may require, including opinions as to the due organization and authority of
the Borrower, the absence of litigation, the receipt of all necessary governmental and other
approvals, and opinions to the effect that this Agreement and the other Borrower Documents and
Security Documents to which the Borrower is a party have been duly authorized, executed and
delivered by Borrower, and when executed and delivered shall constitute legal, valid and binding
obligations of the Borrower, enforceable against the Borrower in accordance with their respective
terms, and otherwise in form and substance satisfactory to the Bond Purchaser, the Issuer and their
counsel, and that the Security Documents constitute a valid perfected security interest in the non-
real property portion of the Collateral.
(n) No Material Adverse Effect. No event or condition shall have occurred
which has a Material Adverse Effect on the assets, operations or condition (financial or otherwise)
or prospects of the Borrower, or in the facts and information regarding the Borrower upon which
the Bond Purchaser approved its creditworthiness, except as disclosed in writing to the Bond
Purchaser and approved by the Bond Purchaser.
(o) Lien and Judgement Searches. The Bond Purchaser shall have received
lien and judgement searches for the Borrower.
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(p) Tax Certificates. Bond Purchaser shall have received a tax certificate issued
by the Treasurer for the County of Larimer certifying that all taxes and assessments for the current
tax year, if any, and prior years have been paid in full and are current or evidence that the Borrower
is exempt from the payment of real property taxes and assessments;
(q) Satisfaction. The Bond Purchaser shall be satisfied that on the date of
issuance of the Bonds each representation and warranty on the part of the Borrower contained in
this Agreement and in each other Borrower Document to which the Borrower is a party are true
and correct in all material respects and no information has come to the attention of the Bond
Purchaser that was not previously disclosed to Bond Purchaser and which, in the judgment of the
Bond Purchaser, is inconsistent in a material and adverse manner with information disclosed to
Bond Purchaser prior thereto.
Section 8.15 Waiver of Jury Trial. THE BOND PURCHASER, THE REGISTERED
OWNER (IF NOT THE BOND PURCHASER) AND THE BORROWER HEREBY WAIVE
THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS AGREEMENT,
ANY OF THE BORROWER DOCUMENTS, ANY DEALINGS AMONG THE BOND
PURCHASER, THE REGISTERED OWNER (IF NOT THE BOND PURCHASER) OR THE
BORROWER RELATING TO THE SUBJECT MATTER OF THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT, THE BORROWER DOCUMENTS OR ANY
RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING
ESTABLISHED AMONG THE BOND PURCHASER, THE REGISTERED OWNER (IF NOT
THE BOND PURCHASER) AND THE BORROWER. THE SCOPE OF THIS WAIVER IS
INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE
FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS,
TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND
STATUTORY CLAIMS). THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY
NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT, ANY BORROWER DOCUMENTS, OR TO ANY
OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT OR ANY RELATED TRANSACTIONS. IN THE
EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT
TO A TRIAL BY THE COURT.
Section 8.16 No Fiduciary Relationship, Etc. The Borrower acknowledges and agrees
that its sole relationship with the Bond Purchaser and any other Registered Owner is that of debtor
and creditor, respectively, and that no term or provision of this Agreement or any other Borrower
Document is intended to create, nor will any such term or provision be deemed or construed to
have created, any joint venture, partnership, trust, agency, or other fiduciary relationship among
the Bond Purchaser, or any other Registered Owner, as the case may be, or the Borrower, or, with
respect to such parties, any of its affiliates. The Borrower has independently reviewed and
evaluated this Agreement and the other Borrower Documents, the transactions contemplated
hereunder and thereunder, and the potential effects of such transactions on the assets and properties
(including the Collateral), business, operations, and conditions (financial or otherwise) of the
Borrower and its affiliates.
40
Section 8.17 Relationship to Other Borrower Documents. The representations,
warranties, and covenants of the Borrower as set forth in this Agreement are not intended, nor will
they be deemed, to limit any representation, warranty, or covenant of the Borrower set forth in any
other Borrower Document. The Borrower will be bound by, and otherwise comply with, each of
its representations, warranties, and covenants set forth in the other Borrower Documents, on the
terms, provisions, and conditions set forth therein, even if a representation, warranty, or covenant
addressing the same matter or substance is also set forth in this Agreement.
Section 8.18 Records of the Registered Owner. During such time as it is the registered
owner of the Bonds, the Registered Owner’s calculation and recording of the interest rate on the
Bonds, the amounts of principal and interest due and payable under the Bonds and the Loan, and
the receipt and allocation of payments thereon will be conclusive absent manifest error.
Section 8.19 Relationship Between Bond Purchaser and Registered Owner. At any
time that there is not an identity between the Bond Purchaser and the Registered Owner, the
Registered Owner shall be the party charged with giving consents, waivers, etc. To the extent that
the Bond Purchaser owns an interest in the Bonds at the same time as one or more Registered
Owners, a majority in outstanding principal amount of the Bonds shall have the power to provide
consents, waivers, etc.
Section 8.20 Uniform Electronics Transactions Act. Borrower hereby represents that
the person signing this Agreement on behalf of Borrower is hereby authorized to act as Borrower’s
authorized representative. Without notice to or consent of Borrower, Bond Purchaser may create
electronic images of this Agreement and the other Borrower Documents and destroy paper
originals of any such imaged documents. Provided that such images are maintained by or on behalf
of Bond Purchaser as part of Bond Purchaser’s normal business processes, Borrower agrees that
such images have the same legal force and effect as the paper originals and are enforceable against
Borrower. Furthermore, Borrower agrees that Bond Purchaser may convert this Agreement and
any other Loan Documents into a “transferrable record” as such term is defined under, and to the
extent permitted by, the Uniform Electronic Transactions Act (the “UETA”), as adopted in the
State of Colorado, with the image of such instrument in Lender’s possession constituting an
“authoritative copy” under the UETA.
Section 8.21 Waiver of Special Damages. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, BORROWER SHALL NOT ASSERT, AND HEREBY WAIVES, ANY
CLAIM AGAINST BOND PURCHASER OR ISSUER, ON ANY THEORY OF LIABILITY,
FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (AS OPPOSED
TO DIRECT OR ACTUAL DAMAGES) ARISING OUT OF, IN CONNECTION WITH, OR AS
A RESULT OF, THIS AGREEMENT OR ANY OTHER BORROWER DOCUMENT, THE
TRANSACTIONS CONTEMPLATED THEREBY, THE BONDS, NOTES, OR THE USE OF
THE PROCEEDS THEREOF.
Section 8.22 Jurisdiction and Venue. Borrower hereby consents and submits to the
exclusive jurisdiction and venue of any state court in the County of Larimer, Colorado, and the
federal court sitting in the City and County of Denver or the County of Larimer, Colorado with
respect to any legal action or proceeding arising with respect to the Loan Documents and waives
all objections which it may have to such jurisdiction and venue. Nothing herein shall, however,
41
preclude or prevent Bond Purchaser from bringing actions against Borrower in any other
jurisdiction as may be necessary to enforce or realize upon the security for the Bonds provided in
any of the Borrower Documents.
[Remainder of Page Intentionally Left Blank; Signatures Follow]
S-1
IN WITNESS WHEREOF, the Issuer, the Borrower, and the Bond Purchaser have caused
this Agreement to be executed in their respective corporate names by their duly authorized officers,
as of the date first written above.
CITY OF FORT COLLINS, COLORADO
By:
Mayor
[SEAL]
Attest:
By:
City Clerk
THE RESIDENCE @ OAKRIDGE, LLC, a Florida
limited liability company
By: NHA @ Fort Collins, LLC, its Managing
Member:
By NHA Fort Collins, Inc.,
Its Managing Member
By:________________________________
Patricia Greenberg, Its President
FIRST AMERICAN STATE BANK
By
____________, Vice President
S-2
[Signature Page to Financing Agreement]
N-1
STATE OF COLORADO )
) ss.
LARIMER COUNTY )
The foregoing instrument was acknowledged before me this ______ day of
_______________, 2021 by ______________________, as Mayor and __________________, as
City Clerk of the City of Fort Collins, Colorado, a municipal corporation and a home rule city of
the State of Colorado.
Witness my hand and official seal.
Notary Public
[SEAL]
STATE OF _________ )
) ss.
________ COUNTY )
The foregoing instrument was acknowledged before me this _____ day of ___________,
2021, by Patricia Greenberg, as President of NHA Fort Collins, Inc., as Managing Member of
NHA @ Fort Collins, LLC, as Managing Member of THE RESIDENCE @ OAKRIDGE, LLC,
a Florida limited liability company. Witness my hand and official seal.
Notary Public
[SEAL]
My commission expires: ___________
[Notary Page to Financing Agreement]
N-2
STATE OF COLORADO )
) ss.
COUNTY )
The foregoing instrument was acknowledged before me this _____ day of ___________,
2021, by _____________________ as Vice President and authorized signatory of First American
State Bank.
Witness my hand and official seal.
Notary Public
[SEAL]
[Notary Page to Financing Agreement]
A-1
EXHIBIT A
LEGAL DESCRIPTION
B-1
EXHIBIT B
INVESTOR LETTER
[closing date], 2021
City of Fort Collins, Colorado
300 LaPorte Avenue
Fort Collins, CO 80521
Butler Snow LLP Suite 5100
1801 California Street
Denver, CO 80202
Re: City of Fort Collins, Colorado, Tax-Exempt Economic Development Revenue
Bond (The Residence at Oakridge Project), Series 2021A and Taxable Economic
Development Revenue Bond (The Residence at Oakridge Project), Series 2021B
Ladies and Gentlemen:
First American State Bank, a Colorado state banking corporation (the “Purchaser”) hereby
acknowledges receipt of (a) the City of Fort Collins, Colorado Tax-Exempt Economic
Development Revenue Bond (The Residence at Oakridge Project), Series 2021A (“2021A Bond”)
in the principal amount of [Series A Par] in fully registered form and (b) the City of Fort Collins,
Colorado Taxable Economic Development Revenue Bond (The Residence at Oakridge Project),
Series 2021B (“2021B Bond” and together with the Series 2021A Bond, the “Bonds”) in the
principal amount of [Series B Par] in fully registered form. The Bonds has been checked, inspected
and approved by the Purchaser.
The undersigned acknowledges that the Bonds were issued for the purpose of making a
loan to THE RESIDENCE @ OAKRIDGE, LLC (the “Borrower”) to finance the costs of the
Refunding Project as described in that certain Financing Agreement dated [closing date], 2021, as
the same may be amended and supplemented (the “Financing Agreement”), by and among the City
of Fort Collins, Colorado (the “Issuer”), the Borrower and the Purchaser. All capitalized terms
used herein have the same meaning as defined in the Financing Agreement unless otherwise
defined herein.
The undersigned further acknowledges that the Bonds are secured by the Financing
Agreement and the Security Documents (as defined in the Financing Agreement), which create
security interests and other liens in the Property as provided therein.
In connection with the purchase of the Bonds from the Issuer, the Purchaser hereby makes
the following representations upon which you may rely:
1. The Purchaser hereby certifies that it is either (a) a bank as defined in
Section 3(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”) (b) an
institutional “accredited investor” as that term is defined in Rule 501 of Regulation D under
B-2
the Securities Act; or (b) a “qualified institutional buyer” as that term is defined in Rule
144A under the Securities Act.
2. The Purchaser may, on or about the date of issuance of the Bonds, sell and
transfer 100% of the Bonds to a wholly owned subsidiary of the Purchaser or any other
entity whatsoever, so long as any such entity shall execute an investment letter in the form
of this letter and shall be a qualified Purchaser as described in paragraph 1 hereof.
3. The Purchaser acknowledges that it has such knowledge and experience in
business matters that it is fully capable of evaluating the merits and risks represented by a
purchase of the Bonds and it is able to bear the economic risk of the purchase and
ownership of the Bonds.
4. The Purchaser has received from the Issuer no formal or informal offering
or disclosure document relating to the Bonds and has concluded that the receipt of one prior
to the purchase of the Bonds is not required. It is acknowledged that no information has
been provided by the Issuer, its officials, employees, agents or its counsel, and that any
information furnished by any other party to the transaction does not purport to fully
disclose all information pertinent to the Bonds.
5. Except as disclosed to the Issuer in writing, the Purchaser is not now and
has never been controlled by, or under common control with, the Borrower. Except as
disclosed to the Issuer in writing, the Borrower has never been and is not now controlled
by the Purchaser. The Purchaser hereby agrees to deliver to the Issuer a copy of any
agreement between the Purchaser and the Borrower or any affiliate of the Borrower relating
to the Bonds.
6. The Purchaser has authority to purchase the Bonds and to execute this letter
and any other instruments and documents required to be executed by the Purchaser in
connection with the purchase of the Bonds, including the Financing Agreement. Assuming
due authorization, execution and delivery by the Issuer and the Borrower, the Financing
Agreement constitutes a valid and binding obligation of the Purchaser, enforceable against
the Purchaser in accordance with its terms.
7. In entering into this transaction the Purchaser has not relied upon any
representations or opinions made by the Issuer or its counsel relating to the legal or
financial consequences or other aspects of the transactions, nor has it looked to, nor
expected, the Issuer to undertake or require any credit investigation or due diligence
reviews relating to the Borrower, its financial condition or business operations, the Project
Facilities (including the financing, refinancing, operation or management thereof), or any
other matter pertaining to the merits or risks of the transaction, or the adequacy of any
collateral pledged to secure repayment of the Bonds.
8. The Purchaser understands that the Bonds are not secured by any pledge of
any moneys received or to be received from taxation by the State of Colorado or any
political subdivision or taxing district thereof, including, without limitation, the Issuer; that
the Bonds will never constitute the debt or indebtedness of the Issuer within the meaning
B-3
of the Constitution or statutes of the State, and shall never constitute a pecuniary liability
of the Issuer or a charge against its general credit or taxing powers; and that the liability of
the Issuer with respect to the Bonds is subject to further limitations as set forth in the Bonds
and the Financing Agreement.
9. The Purchaser has been informed that the Bonds (i) have not been and will
not be registered or otherwise qualified for sale under the “Blue Sky” laws and regulations
of any jurisdiction; (ii) will not be listed on any stock or other securities exchange; and (iii)
will carry no rating from any rating service.
10. The Purchaser has obtained from a representative of the Borrower and
others, all information regarding the Bonds which it has deemed relevant. The Purchaser
has asked of the Borrower and all other relevant parties all the questions to which the
Purchaser desired answers and has had those questions satisfactorily answered. None of
the Borrower, the Issuer, nor any other relevant party has affirmatively refused to disclose
any information that Purchaser deems necessary or appropriate to its decision to purchase
the Bonds. The Purchaser has based its decision to invest in the Bonds solely on its own
investment decisions.
11. Although the Purchaser does not intend at this time to dispose of the Bonds
and has not offered to sell, solicited offers to buy, or agreed to transfer the Bonds or any
part thereof, the Purchaser acknowledges that it has the right to sell and transfer the Bonds,
subject to the following requirements:
(a) the Purchaser may not dispose of the Bonds to a person or
entity other than as described in Section 1;
(b) the Purchaser will not sell or otherwise transfer the Bonds
unless such transfer will not result in the transferee owning less than the all the
Bonds, except with the prior written approval of the Issuer;
(c) prior to any transfer of the Bonds, the Purchaser shall deliver
to the Issuer a certificate identifying any and all documents that have been executed
by the Purchaser and the Borrower or any affiliate of the Borrower with respect to
the Bonds; and
(d) the Purchaser will not sell or otherwise transfer the Bonds
without requiring the transferee to deliver to the Issuer and to the Borrower an
investor’ s letter to the same effect as this Investor Letter, including this Section,
with no revisions except as may be approved in writing by the Issuer.
12. The Purchaser acknowledges that the issuance of the Bonds to the Purchaser
is made in reliance upon the certifications, representations, and warranties herein by the
addressees hereto. The Purchaser acknowledges that the Issuer and others will rely upon
the truth and accuracy of the foregoing acknowledgments, representations, and agreements.
B-4
Dated as of the date first written above.
First American State Bank,
a Colorado state banking corporation
By ____________________________________
David Korn, Senior Vice President
[Signature Page to Investor Letter]
C-1
EXHIBIT C
FORM OF BONDS
[FORM OF 2021A BOND]
THIS 2021A BOND MAY ONLY BE TRANSFERRED BY THE REGISTERED
OWNER HEREOF ONLY UPON THE EXECUTION AND DELIVERY BY THE
TRANSFEREE OF AN INVESTOR LETTER IN THE FORM ATTACHED TO
THE HEREIN DESCRIBED AGREEMENT.
CITY OF FORT COLLINS, COLORADO
TAX-EXEMPT ECONOMIC DEVELOPMENT REVENUE BOND
(THE RESIDENCE AT OAKRIDGE PROJECT)
SERIES 2021A
No. RA-1 [Series A Par]
Interest Rate Maturity Date Original Issue Date CUSIP
__________% May 1, 2034 [closing date], 2021 ________
REGISTERED OWNER/BOND PURCHASER: First American State Bank, a Colorado state
banking corporation
ADDRESS: 8390 East Crescent Parkway, Suite 100, Greenwood Village, CO 80111
PRINCIPAL AMOUNT: ___________ MILLION ________ HUNDRED THOUSAND
_______ DOLLARS
All capitalized terms not otherwise defined herein shall have the meanings ascribed thereto
in the Financing Agreement (the “Agreement”) dated [closing date], 2021, by and among the City
of Fort Collins, Colorado (the “Issuer”), a municipal corporation and a home rule city duly
organized and existing under the laws of the State of Colorado and in particular under the
provisions of Article XX of the Constitution of the State of Colorado and the Charter of the City,
THE RESIDENCE @ OAKRIDGE, LLC, a Florida limited liability company (together with its
successors and assigns permitted under the Agreement, the “Borrower”), and First American State
Bank, a Colorado state banking corporation (the “Registered Owner” and “Bond Purchaser”).
This Series 2021A Bond of the Issuer is captioned as the City of Fort Collins, Colorado
Tax-Exempt Economic Development Revenue Bond (The Residence at Oakridge Project), Series
2021A (the “2021A Bond”) in the principal amount of [Series A Par].
The Issuer, for value received, hereby promises to pay (solely from the sources described
herein) to the Registered Owner specified above, or registered assigns, the principal of and interest
accruing on this 2021A Bond as follows:
C-2
(i) Monthly payments of accrued and unpaid interest on this 2021A
Bond shall be due on each Payment Date (as set forth on Schedule I attached hereto) without
demand.
(ii) Monthly payments of principal on this 2021A Bond shall be due and
payable without demand on the dates and in the respective amounts set forth on Schedule I attached
hereto.
The 2021A Bond shall be dated the Original Issue Date set forth above and shall mature
on the Maturity Date.
So long as no Event of Default has occurred and is continuing, this 2021A Bond shall bear
interest at the Tax-Exempt Rate as set forth in the Agreement. Notwithstanding any other provision
of the Agreement to the contrary, upon and during the continuance of an Event of Default, this
2021A Bond will bear interest at the Default Rate; provided, however, if the Event of Default is
the result of a failure in the payment of the principal or interest on the Notes, the applicable default
rate will only apply if such failure continues for ten (10) days after the date on which such payment
was due and payable. Any interest due and payable at the Default Rate shall be payable on demand
and if any payment of principal and interest is not received by the Bond Purchaser within ten (10)
days after it is due, a late charge of 5% of such overdue amount will, at the Bond Purchaser’s
option, be payable.
So long as no Determination of Taxability has occurred, and no Event of Default has
occurred and is continuing, this Bonds shall bear interest at the Tax-Exempt Rate as set forth in
the Agreement. Notwithstanding any other provision of the Agreement to the contrary from the
date on which Registered Owner delivers to the Issuer and the Borrower a notice of a
Determination of Taxability (“Notice of Taxability”) the outstanding principal amount of the
2021A Bond will bear interest at the Taxable Rate.
In addition, upon such Determination of Taxability, the following shall be due under the
2021A Bond: (i) within 30 days following delivery of the Notice of Taxability, the Taxable Make-
Whole Amount; and (ii) within 30 days following delivery of any demand by a Registered Owner
(such demand(s) may be made with the Notice of Taxability and by separate notice(s)) to the Issuer
and the Borrower, any and all penalties and other amounts imposed upon such Registered Owner
by the Internal Revenue Service or other governmental authority resulting from or caused by the
Determination of Taxability. “Taxable Make-Whole Amount” means the difference equal to
(1) the sum of those interest payments, or portion thereof, paid on the 2021A Bond prior to delivery
of the Notice of Taxability and deemed taxable pursuant to the Determination of Taxability at the
Taxable Rate, minus (2) the sum of such interest payments, or portion thereof, actually paid on
such 2021A Bond.
Notwithstanding anything herein to the contrary, the obligation of the Issuer hereunder
shall be subject to the limitation that payments of interest, including, without limitation, penalty
interest, to the Registered Owner of this 2021A Bond shall not exceed the Maximum Rate.
The 2021A Bond has been issued in the principal amount of [Series A Par] under the
County and Municipality Development Revenue Bond Act, constituting Article 3, Title 29,
C-3
Colorado Revised Statutes, as amended (the “Act”), the Colorado Supplemental Public Securities
Act, constituting Part 2, Article 57, Title 11, Colorado Revised Statutes, as amended (the
“Supplemental Act”) and an ordinance duly adopted by the City Council of the Issuer on April 20,
2021 for the purpose of financing thea portion of the costs of the Refunding Project as described
in the Financing Agreement. The proceeds of the Bonds will be loaned (the “Loan”) by the Issuer
to the Borrower pursuant to the Agreement to pay a portion of the costs of the Refunding Project.
The Loan is evidenced by the Notes from the Borrower payable to the order of the Issuer and
assigned to the Bond Purchaser as the initial Registered Owner. The Loan is secured by the
Security Documents and as otherwise provided in the Agreement.
Payment of the principal of, premium, if any, and interest on the 2021A Bond shall be
made to the Registered Owner by check or draft (subject to collection) delivered or mailed to the
Registered Owner at the addresses set forth in the registration record maintained by the Bond
Purchaser as registrar or by such electronic means (e.g., auto-debit or ACH payment) as the
Registered Owner may permit or require. All payments of principal of, premium, if any, and
interest on the 2021A Bond shall be made in lawful money of the United States of America in
immediately available funds.
Optional Prepayment of the Bond. The unpaid principal of the Series 2021A Bond may
be prepaid in whole or in part by the Issuer (solely from loan payments of the Borrower pursuant
to the Note) at the direction of the Borrower on any date on 30 days’ prior written notice, unless
such notice is waived by the Registered Owner. The Series 2021A Bond may be prepaid at a
prepayment price equal to the sum of the following: (i) 100% of the principal amount being
prepaid, (ii) accrued interest on such principal to the prepayment date, (iii) fees and costs of the
Registered Owner, (iv) any default interest and late charges, and (v) a prepayment penalty equal
to the percentage of the principal amount of the Series 2021A Bond prepaid (the “Prepayment
Fee”) as follows:
Closing Date Prepayment
Anniversary Fee
<1 Year 5%
>Year 1 < Year 2 4%
>Year 2 < Year 3 3%
>Year 3 < Year 4 2%
>Year 4 < Year 5 1%
>Year 5 0%
No Prepayment Fee shall be due on or after the fifth anniversary of the Closing Date. Prepayment
will not result in re-amortization of the principal amount of the Series 2021A Bond, but will be
applied first to any principal, interest due owing and accrued, then to costs, expenses or fees due
owing or accrued, then to principal installment payments in reverse order of maturity.
The Borrower, on behalf of the Issuer, shall give the Registered Owner of the 2021A Bond
at least 30 days’ prior written notice, unless such notice is waived by the Registered Owner, of its
intention to cause the Issuer to prepay the Series 2021A Bond pursuant to this paragraph, which
notice shall specify the date of prepayment, the prepayment price, and include a statement to the
effect that all Administration Fees and Expenses due on the date of such notice have been paid and
C-4
all other obligations of the Borrower to the Issuer or the Registered Owner under this Agreement
and each of the other Borrower Documents on such date have been fulfilled. The Borrower shall
have the right to revoke such notice of prepayment at any time prior to the actual prepayment.
The Registered Owner shall note all prepayments of principal on the 2021A Bond prior to
the final payment in accordance with its electronic record-keeping procedures, provided that such
records must be capable of being produced in writing at the request of the Issuer or the Borrower.
THIS SERIES 2021A BOND SHALL BE A SPECIAL, LIMITED OBLIGATION OF
THE ISSUER PAYABLE SOLELY FROM REVENUES. THE SERIES 2021A BOND SHALL
CONSTITUTE A VALID CLAIM OF THE REGISTERED OWNER THEREOF AGAINST THE
REVENUES, WHICH ARE PLEDGED TO SECURE THE PAYMENT OF THE PRINCIPAL
OF, PREMIUM, IF ANY, AND INTEREST ON THE SERIES 2021A BOND, AND WHICH
SHALL BE USED FOR NO OTHER PURPOSE EXCEPT AS EXPRESSLY AUTHORIZED IN
THE AGREEMENT. THE SERIES 2021A BOND SHALL NOT BE A DEBT OR
INDEBTEDNESS OF THE ISSUER, THE STATE OR ANY POLITICAL SUBDIVISION OF
EITHER THE ISSUER OR THE STATE, AND NEITHER THE ISSUER, THE STATE NOR
ANY POLITICAL SUBDIVISION THEREOF SHALL BE LIABLE FOR PAYMENT OF THE
SERIES 2021A BOND OR FOR THE PERFORMANCE OF ANY PLEDGE, OBLIGATION OR
AGREEMENT OF ANY KIND WHATSOEVER WITH RESPECT THERETO EXCEPT AS
SET FORTH IN THE AGREEMENT, NOR IN ANY EVENT SHALL PRINCIPAL OF,
PREMIUM, IF ANY, AND INTEREST ON THE SERIES 2021A BOND BE PAYABLE OUT
OF ANY FUNDS OR ASSETS OTHER THAN THOSE PLEDGED TO THAT PURPOSE BY
THE ISSUER IN THE AGREEMENT, NOR IN ANY EVENT SHALL THE SERIES 2021A
BOND BE PAYABLE OUT OF ANY FUNDS, ASSETS OR FACILITIES OTHER THAN
THOSE OF THE ISSUER PLEDGED UNDER THE AGREEMENT. THE SERIES 2021A
BOND SHALL NOT CONSTITUTE AN INDEBTEDNESS OR A MULTIPLE FISCAL-YEAR
FINANCIAL OBLIGATION WITHIN THE MEANING OF ANY CONSTITUTIONAL OR
STATUTORY DEBT LIMITATION OR RESTRICTION. THE SERIES 2021A BOND DOES
NOT CONSTITUTE A DEBT, LOAN, CREDIT OR PLEDGE OF THE FAITH AND CREDIT
OR TAXING POWER OF THE ISSUER, THE STATE OR ANY POLITICAL SUBDIVISION
THEREOF.
NONE OF THE COVENANTS, STIPULATIONS, PROMISES, AGREEMENTS AND
OBLIGATIONS OF THE ISSUER CONTAINED IN THE AGREEMENT SHALL BE DEEMED
TO BE COVENANTS, STIPULATIONS, PROMISES, AGREEMENTS OR OBLIGATIONS OF
ANY PAST, PRESENT OR FUTURE MEMBER OF THE ISSUER’S CITY COUNCIL, OR THE
OFFICERS, COUNSEL, FINANCIAL ADVISORS, EMPLOYEES OR AGENTS OF THE
ISSUER, OR OF ANY SUCCESSOR THERETO, AND NO RECOURSE SHALL BE HAD FOR
THE PAYMENT OF THE PRINCIPAL OF OR INTEREST ON THE SERIES 2021A BOND
AGAINST ANY PAST, PRESENT OR FUTURE MEMBER OF THE ISSUER’S CITY
COUNCIL, OR THE OFFICERS, COUNSEL, FINANCIAL ADVISORS, EMPLOYEES OR
AGENTS OF THE ISSUER, OR OF ANY SUCCESSOR THERETO, UNDER ANY RULE OF
LAW OR EQUITY, STATUTE OR CONSTITUTION, AND ALL SUCH LIABILITY IS
EXPRESSLY WAIVED AND RELEASED AS A CONDITION OF, AND CONSIDERATION
FOR, THE EXECUTION AND ISSUANCE OF THIS SERIES 2021A BOND.
C-5
Under the Agreement, the Borrower is obligated to pay, or cause to be paid, to the
Registered Owner, as assignee of the Issuer and for the account of the Issuer as repayment of the
Loan evidenced by the Note, moneys which will be sufficient to pay the principal of and interest
on this Bonds (the “Loan Payments”). The Borrower’s obligations under the Notes and the
Agreement are secured by the Security Documents defined in the Agreement, and the Issuer has
assigned its right, title and interest in and to the Notes to the Registered Owner to secure payment
of the Bonds.
If an Event of Default (as defined in the Agreement) shall occur, the unpaid principal
hereof, together with accrued interest hereon, may be declared then due and payable as provided
in the Agreement.
It is also certified, recited and warranted that this 2021A Bond is issued under the authority
of the Supplemental Act and this recital shall be conclusive evidence of the validity and the
regularity of the issuance of this 2021A Bond after its delivery for value and that this 2021A Bond
is incontestable for any cause whatsoever after its delivery for value.
It is hereby certified, recited and declared that all acts, conditions and things required to
exist, happen and be performed precedent to and during the execution and delivery of the
Agreement and the issuance of this 2021A Bond exist, have happened, and have been performed
in the time, form and manner as required by law.
IN WITNESS WHEREOF, the City of Fort Collins, Colorado has caused this 2021A Bond
to be executed by the manual signature of its Mayor and its seal to be affixed hereto and to be
manually signed and attested by its City Clerk, all as of the date set forth above.
CITY OF FORT COLLINS, COLORADO
By
Mayor
[SEAL]
Attest:
By
City Clerk
C-6
SCHEDULE I
PAYMENT SCHEDULE
C-7
[FORM OF ASSIGNMENT]
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
______________________________________________________________________________
the within Bonds and all rights thereunder, and hereby irrevocably constitutes and appoints
attorney to transfer the within Bonds on the books kept for registration thereof with full power of
substitution in the premises.
Dated:
NOTICE: The signature to this assignment must
correspond with the name as it appears on the
face of the within Bonds in every particular,
without alteration or enlargement or any change
whatever.
Signature Guaranteed:
Signature(s) must be guaranteed by a national
bank or trust company or by a brokerage firm
having a membership in one of the major
stock exchanges and who is a member of a
Medallion Signature Program.
[END OF FORM OF ASSIGNMENT]
[END OF FORM OF 2021A BOND]
C-8
[FORM OF 2021B Bond]
THIS 2021B Bond MAY ONLY BE TRANSFERRED BY THE REGISTERED
OWNER HEREOF ONLY UPON THE EXECUTION AND DELIVERY BY THE
TRANSFEREE OF AN INVESTOR LETTER IN THE FORM ATTACHED TO
THE HEREIN DESCRIBED AGREEMENT.
CITY OF FORT COLLINS, COLORADO
TAXABLE ECONOMIC DEVELOPMENT REVENUE BOND
(THE RESIDENCE AT OAKRIDGE PROJECT)
SERIES 2021B
No. RB-1 [Series B Par]
Interest Rate Maturity Date Original Issue Date CUSIP
__________% February 1, 2023 [closing date], 2021 ________
REGISTERED OWNER/BOND PURCHASER: First American State Bank, a Colorado state
banking corporation
ADDRESS: 8390 East Crescent Parkway, Suite 100, Greenwood Village, CO 80111
PRINCIPAL AMOUNT: ___________ MILLION ________ HUNDRED THOUSAND
_______ DOLLARS
All capitalized terms not otherwise defined herein shall have the meanings ascribed thereto
in the Financing Agreement (the “Agreement”) dated [closing date], 2021, by and among the City
of Fort Collins, Colorado (the “Issuer”), a municipal corporation and a home rule city duly
organized and existing under the laws of the State of Colorado and in particular under the
provisions of Article XX of the Constitution of the State of Colorado and the Charter of the City,
THE RESIDENCE @ OAKRIDGE, LLC, a Florida limited liability company (together with its
successors and assigns permitted under the Agreement, the “Borrower”), and First American State
Bank, a Colorado state banking corporation (the “Registered Owner” and “Bond Purchaser”).
This Series 2021B Bond of the Issuer is captioned as the City of Fort Collins, Colorado
Taxable Economic Development Revenue Bond (The Residence at Oakridge Project), Series
2021A (the “2021B Bond”) in the principal amount of [Series B Par].
The Issuer, for value received, hereby promises to pay (solely from the sources described
herein) to the Registered Owner specified above, or registered assigns, the principal of and interest
accruing on this 2021B Bond as follows:
(i) Monthly payments of accrued and unpaid interest on this 2021B
Bond shall be due on each Payment Date (as set forth on Schedule I attached hereto) without
demand.
C-9
(ii) Monthly payments of principal on this 2021B Bond shall be due and
payable without demand on the dates and in the respective amounts set forth on Schedule I attached
hereto.
The 2021B Bond shall be dated the Original Issue Date set forth above and shall mature
on the Maturity Date.
So long as no Event of Default has occurred and is continuing, this 2021B Bond shall bear
interest at the Taxable Rate as set forth in the Agreement. Notwithstanding any other provision of
the Agreement to the contrary, upon and during the continuance of an Event of Default, this 2021B
Bond will bear interest at the Default Rate; provided, however, if the Event of Default is the result
of a failure in the payment of the principal or interest on the Note, the applicable default rate will
only apply if such failure continues for ten (10) days after the date on which such payment was
due and payable. Any interest due and payable at the Default Rate shall be payable on demand and
if any payment of principal and interest is not received by the Bond Purchaser within ten (10) days
after it is due, a late charge of 5% of such overdue amount will, at the Bond Purchaser’s option,
be payable.
Notwithstanding anything herein to the contrary, the obligation of the Issuer hereunder
shall be subject to the limitation that payments of interest, including, without limitation, penalty
interest, to the Registered Owner of this 2021B Bond shall not exceed the Maximum Rate.
The 2021B Bond has been issued in the principal amount of [Series B Par] under the
County and Municipality Development Revenue Bond Act, constituting Article 3, Title 29,
Colorado Revised Statutes, as amended (the “Act”), the Colorado Supplemental Public Securities
Act, constituting Part 2, Article 57, Title 11, Colorado Revised Statutes, as amended (the
“Supplemental Act”) and an ordinance duly adopted by the City Council of the Issuer on April 20,
2021 for the purpose of financing a portion of the costs of the Refunding Project as described in
the Financing Agreement. The proceeds of the Bonds will be loaned (the “Loan”) by the Issuer to
the Borrower pursuant to the Agreement to pay a portion of the costs of the Refunding Project.
The Loan is evidenced by the Notes from the Borrower payable to the order of the Issuer and
assigned to the Bond Purchaser as the initial Registered Owner. The Loan is secured by the
Security Documents and as otherwise provided in the Agreement.
Payment of the principal of, premium, if any, and interest on the 2021B Bond shall be made
to the Registered Owner by check or draft (subject to collection) delivered or mailed to the
Registered Owner at the addresses set forth in the registration record maintained by the Bond
Purchaser as registrar or by such electronic means (e.g., auto-debit or ACH payment) as the
Registered Owner may permit or require. All payments of principal of, premium, if any, and
interest on the 2021B Bond shall be made in lawful money of the United States of America in
immediately available funds.
The unpaid principal of the Series 2021B Bond may not be prepaid
THIS SERIES 2021B BOND SHALL BE A SPECIAL, LIMITED OBLIGATION OF
THE ISSUER PAYABLE SOLELY FROM REVENUES. THE SERIES 2021B BOND SHALL
CONSTITUTE A VALID CLAIM OF THE REGISTERED OWNER THEREOF AGAINST THE
C-10
REVENUES, WHICH ARE PLEDGED TO SECURE THE PAYMENT OF THE PRINCIPAL
OF, PREMIUM, IF ANY, AND INTEREST ON THE SERIES 2021B BOND, AND WHICH
SHALL BE USED FOR NO OTHER PURPOSE EXCEPT AS EXPRESSLY AUTHORIZED IN
THE AGREEMENT. THE SERIES 2021B BOND SHALL NOT BE A DEBT OR
INDEBTEDNESS OF THE ISSUER, THE STATE OR ANY POLITICAL SUBDIVISION OF
EITHER THE ISSUER OR THE STATE, AND NEITHER THE ISSUER, THE STATE NOR
ANY POLITICAL SUBDIVISION THEREOF SHALL BE LIABLE FOR PAYMENT OF THE
SERIES 2021B BOND OR FOR THE PERFORMANCE OF ANY PLEDGE, OBLIGATION OR
AGREEMENT OF ANY KIND WHATSOEVER WITH RESPECT THERETO EXCEPT AS
SET FORTH IN THE AGREEMENT, NOR IN ANY EVENT SHALL PRINCIPAL OF,
PREMIUM, IF ANY, AND INTEREST ON THE SERIES 2021B BOND BE PAYABLE OUT
OF ANY FUNDS OR ASSETS OTHER THAN THOSE PLEDGED TO THAT PURPOSE BY
THE ISSUER IN THE AGREEMENT, NOR IN ANY EVENT SHALL THE SERIES 2021B
BOND BE PAYABLE OUT OF ANY FUNDS, ASSETS OR FACILITIES OTHER THAN
THOSE OF THE ISSUER PLEDGED UNDER THE AGREEMENT. THE SERIES 2021B
BOND SHALL NOT CONSTITUTE AN INDEBTEDNESS OR A MULTIPLE FISCAL-YEAR
FINANCIAL OBLIGATION WITHIN THE MEANING OF ANY CONSTITUTIONAL OR
STATUTORY DEBT LIMITATION OR RESTRICTION. THE SERIES 2021B BOND DOES
NOT CONSTITUTE A DEBT, LOAN, CREDIT OR PLEDGE OF THE FAITH AND CREDIT
OR TAXING POWER OF THE ISSUER, THE STATE OR ANY POLITICAL SUBDIVISION
THEREOF.
NONE OF THE COVENANTS, STIPULATIONS, PROMISES, AGREEMENTS AND
OBLIGATIONS OF THE ISSUER CONTAINED IN THE AGREEMENT SHALL BE DEEMED
TO BE COVENANTS, STIPULATIONS, PROMISES, AGREEMENTS OR OBLIGATIONS OF
ANY PAST, PRESENT OR FUTURE MEMBER OF THE ISSUER’S CITY COUNCIL, OR THE
OFFICERS, COUNSEL, FINANCIAL ADVISORS, EMPLOYEES OR AGENTS OF THE
ISSUER, OR OF ANY SUCCESSOR THERETO, AND NO RECOURSE SHALL BE HAD FOR
THE PAYMENT OF THE PRINCIPAL OF OR INTEREST ON THE SERIES 2021B BOND
AGAINST ANY PAST, PRESENT OR FUTURE MEMBER OF THE ISSUER’S CITY
COUNCIL, OR THE OFFICERS, COUNSEL, FINANCIAL ADVISORS, EMPLOYEES OR
AGENTS OF THE ISSUER, OR OF ANY SUCCESSOR THERETO, UNDER ANY RULE OF
LAW OR EQUITY, STATUTE OR CONSTITUTION, AND ALL SUCH LIABILITY IS
EXPRESSLY WAIVED AND RELEASED AS A CONDITION OF, AND CONSIDERATION
FOR, THE EXECUTION AND ISSUANCE OF THIS SERIES 2021B BOND.
Under the Agreement, the Borrower is obligated to pay, or cause to be paid, to the
Registered Owner, as assignee of the Issuer and for the account of the Issuer as repayment of the
Loan evidenced by the Notes, moneys which will be sufficient to pay the principal of and interest
on this Bonds (the “Loan Payments”). The Borrower’s obligations under the Notes and the
Agreement are secured by the Security Documents defined in the Agreement, and the Issuer has
assigned its right, title and interest in and to the Notes to the Registered Owner to secure payment
of the Bonds.
If an Event of Default (as defined in the Agreement) shall occur, the unpaid principal
hereof, together with accrued interest hereon, may be declared then due and payable as provided
in the Agreement.
C-11
It is also certified, recited and warranted that this 2021B Bond is issued under the authority
of the Supplemental Act and this recital shall be conclusive evidence of the validity and the
regularity of the issuance of this 2021B Bond after its delivery for value and that this 2021B Bond
is incontestable for any cause whatsoever after its delivery for value.
It is hereby certified, recited and declared that all acts, conditions and things required to
exist, happen and be performed precedent to and during the execution and deli very of the
Agreement and the issuance of this 2021B Bond exist, have happened, and have been performed
in the time, form and manner as required by law.
IN WITNESS WHEREOF, the City of Fort Collins, Colorado has caused this 2021B Bond
to be executed by the manual signature of its Mayor and its seal to be affixed hereto and to be
manually signed and attested by its City Clerk, all as of the date set forth above.
CITY OF FORT COLLINS, COLORADO
By
Mayor
[SEAL]
Attest:
By
City Clerk
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SCHEDULE I
PAYMENT SCHEDULE
C-13
[FORM OF ASSIGNMENT]
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
______________________________________________________________________________
the within Bonds and all rights thereunder, and hereby irrevocably constitutes and appoints
attorney to transfer the within Bonds on the books kept for registration thereof with full power of
substitution in the premises.
Dated:
NOTICE: The signature to this assignment must
correspond with the name as it appears on the
face of the within Bonds in every particular,
without alteration or enlargement or any change
whatever.
Signature Guaranteed:
Signature(s) must be guaranteed by a national
bank or trust company or by a brokerage firm
having a membership in one of the major
stock exchanges and who is a member of a
Medallion Signature Program.
[END OF FORM OF ASSIGNMENT]
[END OF FORM OF 2021B Bond]
[END OF FORMS OF BONDS]
D-1
EXHIBIT D
[FORM OF NOTES]
SERIES 2021A PROMISSORY NOTE
$____________________ [closing date], 2021
FOR VALUE RECEIVED, THE RESIDENCE @ OAKRIDGE, LLC, a Florida limited
liability company (“Maker”), promises to pay to the order of CITY OF FORT COLLINS,
COLORADO, a body corporate and politic (its successors and assigns, the “Payee”),
______Million __________ Hundred Thousand ________ and No/100 Dollars $_________) (the
“Loan”) pursuant to the Financing Agreement (the “Financing Agreement”) by and among Maker,
Payee and First American State Bank, a Colorado state banking corporation (“Assignee”), in
lawful money of the United States of America, with interest thereon from the date of this 2021A
Promissory Note (this “2021A Note”) to and including the date this 2021A Note is paid in full, at
the interest rate equal to three and three quarters percent (3.75%) per annum (“Interest Rate”).
Interest shall be collected based upon a 360-day year multiplied by the actual number of days for
which interest has accrued.
All capitalized terms used and not otherwise defined herein shall have the same meanings
ascribed to such terms in the Financing Agreement. All of the terms, conditions, agreements,
covenants and obligations of the Borrower Documents are expressly incorporated herein by this
reference.
Monthly payments of accrued and unpaid interest on this 2021A Note shall be due on each
Payment Date (as set forth on Schedule I attached hereto) without demand. Monthly payments of
principal on this 2021A Note shall be due and payable without demand on the dates and in the
respective amounts set forth on Schedule I attached hereto.
The Maker further agrees to pay on demand any expenditures made by the Payee in
accordance with the Deed of Trust, of even date herewith, for the payment of taxes, special
assessments, insurance premiums, cost of maintenance and preservation of any improvements,
reasonable attorneys’ fees incurred in connection with any matter pertaining hereto and/or th e
security pledged for this indebtedness. At the option of Payee, all such expenditures which are not
paid by the Maker as and when due, may be paid by the Payee and may be added to the unpaid
balance of this 2021A Note and become a part of and on a parity with the principal indebtedness
secured by the Deed of Trust and other instruments executed in connection herewith and shall
accrue interest at the Default Rate.
If Payee refers this 2021A Note to an attorney for collection or seeks legal advice following
a default, or the Payee is the prevailing party in any action instituted on this 2021A Note, or if any
other judicial or nonjudicial action, suit or proceeding is instituted by Payee or any future holder
of this 2021A Note, and an attorney is employed by Payee to appear in any such action or
proceeding, or to reclaim, seek relief from a judicial or statutory stay, sequester, protect, preserve
or enforce Payee’s interest in this 2021A Note, the Deed of Trust, the Borrower Documents, or
any other security for this 2021A Note (including, but not limited to, proceedings under federal
bankruptcy law, in eminent domain, under probate proceedings or in connection with any state or
D-2
federal tax lien), then Maker promises to pay reasonable, out-of-pocket attorneys’ fees and
reasonable costs and expenses incurred by Payee and/or its attorney in connection with the above-
mentioned events. If not paid within ten (10) days after such fees become due and written demand
for payment, such amount may be added to the then outstanding principal due under the Loan.
Should any payment or installment hereunder be not paid when the same becomes due and
payable, Maker recognizes that the Payee will incur extra expenses for both the administrative cost
of handling delinquent payments and the cost of funds incurred by Payee after such due date as a
result of not having received such payment when due. Therefore, Maker shall, in such event,
without further notice, and without prejudice to the right of Payee to collect any other amounts
provided to be paid herein, including default interest or to declare a default hereunder, pay to Payee
to cover such expenses incurred as a result of any installment payment due being not received
within ten (10) days of its due date, a “late charge” of the lesser of $100 or five (5%) percent of
the amount of such delinquent payment. The foregoing “late charge” shall not be payable upon the
payment due on the Maturity Date.
Prior to the Maturity Date, this 2021A Note may be prepaid in whole or in part at any time
in accordance with the Financing Agreement. All payments or prepayments under this 2021A Note
shall be applied first to the repayment of sums, if any, advanced by the Payee of this 2021A Note
under the provisions of the Borrower Documents to protect and preserve the security, including
sums advanced for the payment of taxes, assessments, insurance premiums or maintenance with
respect to any of the Property encumbered to secure this 2021A Note, together with interest on the
sums so advanced at the Default Rate; second to the payment of accrued and unpaid interest on
the principal indebtedness evidenced by this 2021A Note; and last to the reduction of the principal
indebtedness evidenced by this 2021A Note.
Upon Maker’s failure to make payments as required hereunder or upon the happening of
any Event of Default, all amounts then unpaid under this 2021A Note, including interest, shall bear
interest for the period beginning with the date of the happening of such event at the Default Rate,
and in addition the Payee may, at its option, without prior notice and demand, except as otherwise
provided herein, declare immediately due and payable the entire unpaid principal sum hereunder,
together with all interest thereon, plus any other sums payable at the time of such declaration
pursuant to this 2021A Note, the Deed of Trust, the Borrower Documents and any other instrument
securing this 2021A Note.
Upon the occurrence of any Event of Default, the holder of this 2021A Note shall have the
right to foreclose any security interests securing the payment hereof. Failure to exercise any right
granted herein upon any Event of Default shall not constitute a waiver of the right to exercise such
right in the event of any subsequent or other default. If this 2021A Note is placed in the hands of
an attorney for collection or if collected through court or by any other legal or judicial proceedings,
Maker agrees and shall be obligated to pay, in addition to the sums referred to above, all reasonable
sums for collection costs and attorneys’ fees. If an Event of Default occurs, Maker hereby: (i)
agrees to offsets of any sums or property owed to it by the Payee hereof at any time; (ii) waives
all offsets and all applicable exemption, valuation and appraisal rights; and (iii) expressly agrees
that the acceptance by the Payee of this 2021A Note of any performance which does not strictly
comply with the terms of this 2021A Note or of other Borrower Documents shall not be deemed
to be a waiver of any rights of the Payee.
D-3
Notwithstanding any other provision of the Financing Agreement to the contrary from the
date on which Registered Owner delivers to the Payee and the Maker a notice of a Determination
of Taxability (“Notice of Taxability”) the outstanding principal amount of this 2021A Note will
bear interest at the Taxable Rate.
In addition, upon such Determination of Taxability, the following shall be due under this
2021A Note: (i) within 30 days following delivery of the Notice of Taxability, the Taxable Make-
Whole Amount; and (ii) within 30 days following delivery of any demand by a Registered Owner
(such demand(s) may be made with the Notice of Taxability and by separate notice(s)) to the Payee
and the Maker, any and all penalties and other amounts imposed upon such Registered Owner by
the Internal Revenue Service or other governmental authority resulting from or caused by the
Determination of Taxability. “Taxable Make-Whole Amount” means the difference equal to (1)
the sum of those interest payments, or portion thereof, paid on this 2021A Note prior to delivery
of the Notice of Taxability and deemed taxable pursuant to the Determination of Taxability at the
Taxable Rate, minus (2) the sum of such interest payments, or portion thereof, actually paid on
this 2021A Note.
Except as otherwise provided herein, the Maker waives presentment and demand for
payment, notice of acceleration or of maturity, protest and notice of protest and nonpayment,
bringing of suit and diligence in taking any action to collect sums owing hereunder and agrees that
its liability on this 2021A Note shall not be affected by any release or change in any security for
the payment of this 2021A Note or release of anyone liable hereunder. No extension of time for
the payment of this 2021A Note, or any installment hereof or other modification of the terms hereof
made by the Payee with any person now or hereafter liable for the payment of this 2021A Note,
shall affect the original liability under this 2021A Note of the Maker, unless the Maker is a party
to such agreement.
In no event whatsoever shall the amount paid, or agreed to be paid, to the holder of this
2021A Note for the use, forbearance or retention of the money to be loaned hereunder (“Interest”)
exceed the maximum amount permissible under applicable law. If the performance or fulfillment
of any provision hereof or of any of the Borrower Documents or any agreement between Maker
and the Payee of this 2021A Note shall result in Interest exceeding the limit for interest prescribed
by law, then the amount of such Interest shall be reduced to such limit. If, from any circumstance
whatsoever, the Payee of this 2021A Note should receive as Interest, an amount which would
exceed the highest lawful rate, the amount which would be excessive Interest shall be applied to
the reduction of the principal balance owing hereunder (or, at the option of the Payee, be paid over
to Maker) and not to the payment of Interest.
If any provision hereof or any of the Borrower Documents shall, for any reason and to any
extent, be invalid or unenforceable, then the remainder of the document or instrument in which
such provision is contained and any of the other Borrower Documents shall not be affected thereby
but instead shall be enforceable to the maximum extent permitted by law.
The term “Maker” as used herein shall include the original Maker of this 2021A Note and
any party who may subsequently become liable for the payment hereof, as an assumer with the
consent of the Payee, provided that the holder of this 2021A Note may, at its option, consider the
original Maker of this 2021A Note alone as Maker unless Payee has consented in writing to the
D-4
substitution of another party as maker. The term “Payee” as used herein shall mean the Payee or,
if this 2021A Note is transferred, the then holder of this 2021A Note.
All notices or other written communications hereunder shall be delivered in accordance
with the terms of the Financing Agreement.
This 2021A Note and the Borrower Documents shall be construed and enforced in
accordance with the laws of the State of Colorado.
MAKER AND PAYEE EACH WAIVE ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER IN CONTRACT, TORT, OR
OTHERWISE, BETWEEN MAKER AND PAYEE ARISING OUT OF, CONNECTED WITH,
RELATED TO OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN
THEM IN CONNECTION WITH THIS 2021A NOTE, ANY OTHER LOAN DOCUMENT OR
ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION WITH ANY LOAN DOCUMENT OR THE
TRANSACTIONS RELATED TO ANY LOAN DOCUMENT. MAKER AND PAYEE EACH
HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND
THAT ANY PARTY MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
MAKER AND PAYEE AGREE THAT ALL DISPUTES BETWEEN THEM ARISING
OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS 2021A NOTE OR ANY
OTHER LOAN DOCUMENT, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY
OR OTHERWISE, SHALL BE RESOLVED ONLY BY STATE OR FEDERAL COURTS
LOCATED IN THE CITY AND COUNTY OF DENVER, COLORADO, AND EACH OF
MAKER AND PAYEE WAIVE ANY OBJECTION BASED ON VENUE OR FORUM NON
CONVENIENS WITH RESPECT TO ANY ACTION INSTITUTED THEREIN, BUT MAKER
AND PAYEE ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY
HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE CITY AND COUNTY
OF DENVER, COLORADO. MAKER AND PAYEE EACH WAIVE IN ALL DISPUTES ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING
THE DISPUTE.
MAKER AGREES THAT PAYEE SHALL HAVE THE RIGHT TO PROCEED
AGAINST MAKER OR ITS PROPERTY IN A COURT IN ANY LOCATION TO ENABLE
PAYEE TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE
OBLIGATIONS OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED
IN FAVOR OF PAYEE. MAKER WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE
LOCATION OF THE COURT IN WHICH PAYEE HAS COMMENCED A PROCEEDING
DESCRIBED IN THIS PARAGRAPH.
[Remainder of page intentionally left blank]
D-5
IN WITNESS WHEREOF, the undersigned has caused this Promissory Note to be
executed as of the date and year above first written.
MAKER:
THE RESIDENCE @ OAKRIDGE, LLC, a Florida
limited liability company
By: NHA @ Fort Collins, LLC, its Managing
Member:
By NHA Fort Collins, Inc.,
Its Managing Member
By:________________________________
Patricia Greenberg, Its President
STATE OF _________ )
) ss.
________ COUNTY )
The foregoing instrument was acknowledged before me this _____ day of ___________,
2021, by Patricia Greenberg, as President of NHA Fort Collins, Inc., as Managing Member of
NHA @ Fort Collins, LLC, as Managing Member of THE RESIDENCE @ OAKRIDGE, LLC,
a Florida limited liability company.
Witness my hand and official seal.
Notary Public
[SEAL]
My commission expires: ________________
D-6
SCHEDULE I
PAYMENT SCHEDULE
D-7
ALLONGE
FOR VALUE RECEIVED, City of Fort Collins, Colorado (the “Issuer”) as of the
date hereof, hereby endorses, assigns, conveys and transfers unto FIRST AMERICAN STATE
BANK, a Colorado state banking corporation, as Bond Purchaser as defined under the Financing
Agreement, the within 2021A Note and any and all of the Issuer’s right, title and interest in and to
the 2021A Note and the right to collect all sums due thereunder. All terms used and not defined in
this Allonge shall have the meaning given to them in the 2021A Note.
IN WITNESS WHEREOF, the undersigned and delivered this Allonge as of the date first
set forth in the 2021A Note.
CITY OF FORT COLLINS, COLORADO
By
Mayor
[SEAL]
Attest:
By
City Clerk
STATE OF COLORADO )
) ss.
LARIMER COUNTY )
The foregoing instrument was acknowledged before me this ___ day of ______, 2021, by
____________ as Mayor of the City of Fort Collins, Colorado.
WITNESS my hand and official seal.
Notary Public
[SEAL]
D-8
SERIES 2021B PROMISSORY NOTE
$____________________ [closing date], 2021
FOR VALUE RECEIVED, THE RESIDENCE @ OAKRIDGE, LLC, a Florida limited
liability company (“Maker”), promises to pay to the order of CITY OF FORT COLLINS,
COLORADO, a body corporate and politic (its successors and assigns, the “Payee”),
______Million __________ Hundred Thousand ________ and No/100 Dollars $_________) (the
“Loan”) pursuant to the Financing Agreement (the “Financing Agreement”) by and among Maker,
Payee and First American State Bank, a Colorado state banking corporation (“Assignee”), in
lawful money of the United States of America, with interest thereon from the date of this 2021B
Promissory Note (this “2021B Note”) to and including the date this 2021B Note is paid in full, at
the interest rate equal four and one-half percent (4.5%) per annum (“Interest Rate”). Interest shall
be collected based upon a 360-day year multiplied by the actual number of days for which interest
has accrued.
All capitalized terms used and not otherwise defined herein shall have the same meanings
ascribed to such terms in the Financing Agreement. All of the terms, conditions, agreements,
covenants and obligations of the Borrower Documents are expressly incorporated herein by this
reference.
Monthly payments of accrued and unpaid interest on this 2021B Note shall be due on each
Payment Date (as set forth on Schedule I attached hereto) without demand. Monthly payments of
principal on this 2021B Note shall be due and payable without demand on the dates and in the
respective amounts set forth on Schedule I attached hereto.
The Maker further agrees to pay on demand any expenditures made by the Payee in
accordance with the Deed of Trust, of even date herewith, for the payment of taxes, special
assessments, insurance premiums, cost of maintenance and preservation of any improvements,
reasonable attorneys’ fees incurred in connection with any matter pertaining hereto and/or the
security pledged for this indebtedness. At the option of Payee, all such expenditures which are not
paid by the Maker as and when due, may be paid by the Payee and may be added to the unpaid
balance of this 2021B Note and become a part of and on a parity with the principal indebtedness
secured by the Deed of Trust and other instruments executed in connection herewith and shall
accrue interest at the Default Rate.
If Payee refers this 2021B Note to an attorney for collection or seeks legal advice following
a default, or the Payee is the prevailing party in any action instituted on this 2021B Note, or if any
other judicial or nonjudicial action, suit or proceeding is instituted by Payee or any future holder
of this 2021B Note, and an attorney is employed by Payee to appear in any such action or
proceeding, or to reclaim, seek relief from a judicial or statutory stay, sequester, protect, preserve
or enforce Payee’s interest in this 2021B Note, the Deed of Trust, the Borrower Documents, or
any other security for this 2021B Note (including, but not limited to, proceedings under federal
bankruptcy law, in eminent domain, under probate proceedings or in connection with any state or
federal tax lien), then Maker promises to pay reasonable, out-of-pocket attorneys’ fees and
reasonable costs and expenses incurred by Payee and/or its attorney in connection with the above-
D-9
mentioned events. If not paid within ten (10) days after such fees become due and written demand
for payment, such amount may be added to the then outstanding principal due under the Loan.
Should any payment or installment hereunder be not paid when the same becomes due and
payable, Maker recognizes that the Payee will incur extra expenses for both the administrative cost
of handling delinquent payments and the cost of funds incurred by Payee after such due date as a
result of not having received such payment when due. Therefore, Maker shall, in such event,
without further notice, and without prejudice to the right of Payee to collect any other amounts
provided to be paid herein, including default interest or to declare a default hereunder, pay to Payee
to cover such expenses incurred as a result of any installment payment due being not received
within ten (10) days of its due date, a “late charge” of the lesser five (5%) percent of the amount
of such delinquent payment. The foregoing “late charge” shall not be payable upon the payment
due on the Maturity Date.
Prior to the Maturity Date, this 2021B Note may be not be prepaid.
Upon Maker’s failure to make payments as required hereunder or upon the happening of
any Event of Default, all amounts then unpaid under this 2021B Note, including interest, shall bear
interest for the period beginning with the date of the happening of such event at the Default Rate,
and in addition the Payee may, at its option, without prior notice and demand, except as otherwise
provided herein, declare immediately due and payable the entire unpaid principal sum hereunder,
together with all interest thereon, plus any other sums payable at the time of such declaration
pursuant to this 2021B Note, the Deed of Trust, the Borrower Documents and any other instrument
securing this 2021B Note.
Upon the occurrence of any Event of Default, the holder of this 2021B Note shall have the
right to foreclose any security interests securing the payment hereof. Failure to exercise any right
granted herein upon any Event of Default shall not constitute a waiver of the right to exercise such
right in the event of any subsequent or other default. If this 2021B Note is placed in the hands of
an attorney for collection or if collected through court or by any other legal or judicial proceedings,
Maker agrees and shall be obligated to pay, in addition to the sums referred to above, all reasonable
sums for collection costs and attorneys’ fees. If an Event of Default occurs, Maker hereby: (i)
agrees to offsets of any sums or property owed to it by the Payee hereof at any time; (ii) waives
all offsets and all applicable exemption, valuation and appraisal rights; and (iii) expressly agrees
that the acceptance by the Payee of this 2021B Note of any performance which does not strictly
comply with the terms of this 2021B Note or of other Borrower Documents shall not be deemed
to be a waiver of any rights of the Payee.
Except as otherwise provided herein, the Maker waives presentment and demand for
payment, notice of acceleration or of maturity, protest and notice of protest and nonpayment,
bringing of suit and diligence in taking any action to collect sums owing hereunder and agrees that
its liability on this 2021B Note shall not be affected by any release or change in any security for
the payment of this 2021B Note or release of anyone liable hereunder. No extension of time for
the payment of this 2021B Note, or any installment hereof or other modification of the terms hereof
made by the Payee with any person now or hereafter liable for the payment of this 2021B Note,
shall affect the original liability under this 2021B Note of the Maker, unless the Maker is a party
to such agreement.
D-10
In no event whatsoever shall the amount paid, or agreed to be paid, to the holder of this
2021B Note for the use, forbearance or retention of the money to be loaned hereunder (“Interest”)
exceed the maximum amount permissible under applicable law. If the performance or fulfillment
of any provision hereof or of any of the Borrower Documents or any agreement between Maker
and the Payee of this 2021B Note shall result in Interest exceeding the limit for interest prescribed
by law, then the amount of such Interest shall be reduced to such limit. If, from any circumstance
whatsoever, the Payee of this 2021B Note should receive as Interest, an amount which would
exceed the highest lawful rate, the amount which would be excessive Interest shall be applied to
the reduction of the principal balance owing hereunder (or, at the option of the Payee, be paid over
to Maker) and not to the payment of Interest.
If any provision hereof or any of the Borrower Documents shall, for any reason and to any
extent, be invalid or unenforceable, then the remainder of the document or instrument in which
such provision is contained and any of the other Borrower Documents shall not be affected thereby
but instead shall be enforceable to the maximum extent permitted by law.
The term “Maker” as used herein shall include the original Maker of this 2021B Note and
any party who may subsequently become liable for the payment hereof, as an assumer with the
consent of the Payee, provided that the holder of this 2021B Note may, at its option, consider the
original Maker of this 2021B Note alone as Maker unless Payee has consented in writing to the
substitution of another party as maker. The term “Payee” as used herein shall mean the Payee or,
if this 2021B Note is transferred, the then holder of this 2021B Note.
All notices or other written communications hereunder shall be delivered in accordance
with the terms of the Financing Agreement.
This 2021B Note and the Borrower Documents shall be construed and enforced in
accordance with the laws of the State of Colorado.
MAKER AND PAYEE EACH WAIVE ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER IN CONTRACT, TORT, OR
OTHERWISE, BETWEEN MAKER AND PAYEE ARISING OUT OF, CONNECTED WITH,
RELATED TO OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN
THEM IN CONNECTION WITH THIS 2021B NOTE, ANY OTHER LOAN DOCUMENT OR
ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION WITH ANY LOAN DOCUMENT OR THE
TRANSACTIONS RELATED TO ANY LOAN DOCUMENT. MAKER AND PAYEE EACH
HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND
THAT ANY PARTY MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
MAKER AND PAYEE AGREE THAT ALL DISPUTES BETWEEN THEM ARISING
OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS 2021B NOTE OR ANY
OTHER LOAN DOCUMENT, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY
D-11
OR OTHERWISE, SHALL BE RESOLVED ONLY BY STATE OR FEDERAL COURTS
LOCATED IN THE CITY AND COUNTY OF DENVER, COLORADO, AND EACH OF
MAKER AND PAYEE WAIVE ANY OBJECTION BASED ON VENUE OR FORUM NON
CONVENIENS WITH RESPECT TO ANY ACTION INSTITUTED THEREIN, BUT MAKER
AND PAYEE ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY
HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE CITY AND COUNTY
OF DENVER, COLORADO. MAKER AND PAYEE EACH WAIVE IN ALL DISPUTES ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING
THE DISPUTE.
MAKER AGREES THAT PAYEE SHALL HAVE THE RIGHT TO PROCEED
AGAINST MAKER OR ITS PROPERTY IN A COURT IN ANY LOCATION TO ENABLE
PAYEE TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE
OBLIGATIONS OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED
IN FAVOR OF PAYEE. MAKER WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE
LOCATION OF THE COURT IN WHICH PAYEE HAS COMMENCED A PROCEEDING
DESCRIBED IN THIS PARAGRAPH.
[Remainder of page intentionally left blank]
D-12
IN WITNESS WHEREOF, the undersigned has caused this Promissory Note to be
executed as of the date and year above first written.
MAKER:
By: NHA @ Fort Collins, LLC, its Managing
Member:
By NHA Fort Collins, Inc.,
Its Managing Member
By:________________________________
Patricia Greenberg, Its President
STATE OF _________ )
) ss.
________ COUNTY )
The foregoing instrument was acknowledged before me this _____ day of ___________,
2021, by Patricia Greenberg, as President of NHA Fort Collins, Inc., as Managing Member of
NHA @ Fort Collins, LLC, as Managing Member of THE RESIDENCE @ OAKRIDGE, LLC,
a Florida limited liability company.
Witness my hand and official seal.
Notary Public
[SEAL]
My commission expires: _________________
D-13
SCHEDULE I
PAYMENT SCHEDULE
D-14
ALLONGE
FOR VALUE RECEIVED, City of Fort Collins, Colorado (the “Issuer”) as of the
date hereof, hereby endorses, assigns, conveys and transfers unto FIRST AMERICAN STATE
BANK, a Colorado state banking corporation, as Bond Purchaser as defined under the Financing
Agreement, the within 2021B Note and any and all of the Issuer’s right, title and interest in and to
the 2021B Note and the right to collect all sums due thereunder. All terms used and not defined in
this Allonge shall have the meaning given to them in the 2021B Note.
IN WITNESS WHEREOF, the undersigned and delivered this Allonge as of the date first
set forth in the 2021B Note.
CITY OF FORT COLLINS, COLORADO
By
Mayor
[SEAL]
Attest:
By
City Clerk
STATE OF COLORADO )
) ss.
LARIMER COUNTY )
The foregoing instrument was acknowledged before me this ___ day of ______, 2021, by
____________ as Mayor of the City of Fort Collins, Colorado.
WITNESS my hand and official seal.
Notary Public
[SEAL]
[END FORM OF NOTES]
E-1
EXHIBIT E
COSTS OF ISSUANCE
F-1
EXHIBIT F
AMORTIZATION SCHEDULE
TO BE RECORDED AND UPON RECORDATION RETURN TO:
Dee P. Wisor, Esq.
BUTLER SNOW LLP
1801 California Street, Suite 5100
Denver, Colorado 80202
AMENDED AND RESTATED REGULATORY AGREEMENT
AND DECLARATION OF RESTRICTIVE COVENANTS
By and Among
CITY OF FORT COLLINS, COLORADO
And
FIRST AMERICAN STATE BANK
And
THE RESIDENCE @ OAKRIDGE, LLC
Dated as of [closing date], 2021
Relating to:
City of Fort Collins, Colorado
Tax-Exempt Economic Development Revenue Bond
(The Residence at Oakridge Project)
Series 2021A
in the Principal Amount of
[Series A Par]
and
City of Fort Collins, Colorado
Taxable Economic Development Revenue Bond
(The Residence at Oakridge Project)
Series 2021B
in the Principal Amount of
[Series B Par]
EXHIBIT B
i
TABLE OF CONTENTS
Page
Section 1. Definitions and Interpretation ..................................................................................... 2
Section 2. The Project. ................................................................................................................. 5
Section 3. Residential Rental Property. ....................................................................................... 5
Section 4. Lower-Income Tenants. .............................................................................................. 6
Section 5. Agreement to Record. ................................................................................................. 7
Section 6. Non-Recourse Provisions............................................................................................ 8
Section 7. Consideration. ............................................................................................................. 8
Section 8. Reliance....................................................................................................................... 8
Section 9. Project Within the Boundaries of the City. ................................................................. 9
Section 10. Sale or Transfer of the Project. ............................................................................... 9
Section 11. Term. ....................................................................................................................... 9
Section 12. Burden and Benefit. .............................................................................................. 10
Section 13. Uniformity; Common Plan. .................................................................................. 10
Section 14. Enforcement. ......................................................................................................... 10
Section 15. Estoppel Certificate. .............................................................................................. 11
Section 16. Governing Law. .................................................................................................... 11
Section 17. Amendments. ........................................................................................................ 12
Section 18. Notice. ................................................................................................................... 12
Section 19. Severability. .......................................................................................................... 12
Section 20. Multiple Counterparts. .......................................................................................... 13
Section 21. Limited Liability. .................................................................................................. 13
Section 22. Indemnification. .................................................................................................... 13
Section 23. Attorney's Fees. ..................................................................................................... 13
EXHIBIT A – LEGAL DESCRIPTION OF PROJECT SITE .................................................. A-1
EXHIBIT B – CERTIFICATION OF TENANT ELIGIBILITY ...............................................B-1
EXHIBIT C – CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE ....................C-1
1
AMENDED AND RESTATED REGULATORY AGREEMENT AND DECLARATION
OF
RESTRICTIVE COVENANTS
THIS AMENDED AND RESTATED REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS (the “Regulatory Agreement”) is made and
entered into as of [closing date], 2021, by and among the City of Fort Collins, Colorado, a home
rule municipality duly organized and operating under Article XX of the Constitution of the State
of Colorado and the City's duly adopted home rule charter (the “City”), FIRST AMERICAN
STATE BANK a Colorado state banking corporation (the “Bank”), and The Residence @
Oakridge LLC, a Florida limited liability company, organized and existing under the laws of the
State of Florida and registered to do business in Colorado (the “Owner”), and amends and restates
and replaces in its entirety the Regulatory Agreement and Declaration of Restrictive Covenants
(the “Original Regulatory Agreement”) made and entered into as of May 1, 2001 by and among
the City, U.S. Bank National Association, a national banking association duly organized and
existing under the laws of United States, and the Owner.
WITNESSETH
WHEREAS, the City is authorized by the City Charter, the County and Municipality
Development Revenue Bond Act, constituting Article 3, Title 29, Colorado Revised Statutes, as
amended (the “Act”) and the Colorado Supplemental Public Securities Act, constituting Part 2,
Article 57, Title 11, Colorado Revised Statutes, as amended (the “Supplemental Act”) to issue
revenue bonds to finance one or more projects, which includes any land, building or other
improvement and all real or personal properties suitable or used for or in connection with hospital,
health-care or nursing-home facilities; and
WHEREAS, the Act permits counties and municipalities to finance such projects which
are located within the corporate limits of the county or municipality; and
WHEREAS, the Act further authorizes counties and municipalities to issue revenue bonds
for the purposes described above, including all incidental expenses incurred in issuing such bonds,
to secure the payment of such bonds as provided in the Act, and to enter into financing agreements
with others for the purpose of providing revenue to pay such bonds upon such terms and conditions
as the counties and municipalities may deem advisable; and
WHEREAS, the City has previously issued its City of Fort Collins, Colorado Variable Rate
Economic Development Revenue Bonds, Series 2001A (The Residence at Oakridge Project), in
the original aggregate principal amount of $3,555,000 (the “2001A Bonds”) the proceeds of which
were used to provide a portion of the financing for the acquisition, construction and installation of
a health care facility located within the City that qualified under Section 142(d) of the Internal
Revenue Code, as amended (the “Code”) as a multifamily rental housing project (the “Project”);
and
WHEREAS, the Code and the regulations and rulings promulgated with respect thereto
prescribe that the financing, use and operation of the Project be restricted in certain respects and
in order to ensure that the Project will be financed, used and operated in accordance with the Code,
2
regulations and rulings, the City, the Bank and the Owner entered into the Original Regulatory
Agreement; and
WHEREAS, pursuant to and in accordance with the Act, the City, by ordinance adopted
by the City Council of the City and in furtherance of the purposes of the Act, and pursuant to a
Financing Agreement dated as of [closing date]. 2021 (the “Financing Agreement”) by and among
the City, the Owner, and the Bank, is issuing its City of Fort Collins, Colorado Tax-Exempt
Economic Development Revenue Bond (The Residence at Oakridge Project), Series 2021A in the
principal amount of [Series A Par] (the “2021A Bond”) and its City of Fort Collins, Colorado
Taxable Economic Development Revenue Bond (The Residence at Oakridge Project), Series
2021B in the principal amount of [Series B Par] (the “2021B Bond”, and together with the 2021A
Bond, the “Bonds”), and lending the proceeds of the Bonds to the Owner; and
WHEREAS. the Owner is borrowing the proceeds of the Bonds upon the terms and
conditions set forth in the Financing Agreement to pay in full the 2001A Bonds; and
WHEREAS, the Bank is purchasing the Bonds from the City; and
WHEREAS, the City, the Bank, and the Owner are entering into this Regulatory
Agreement to provide that the Owner will rent or lease or will hold available for rent or occupancy
at least 40% of the completed dwelling units in the Project to Lower Income Tenants, as defined
herein, for the public purpose of assisting such individuals and families to afford the costs of
decent, safe and sanitary housing for the period specified herein; and
NOW, THEREFORE, in consideration of the mutual covenants and undertakings set forth
herein, and other good and valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the City, the Bank and the Owner hereby agree as follows:
Section 1. Definitions and Interpretation
Capitalized terms used herein and in the Exhibits hereto attached shall have the following
meanings unless the context in which they are used clearly requires otherwise. Capitalized terms
used herein and not defined herein shall have the meaning set forth in the Financing Agreement
and the Financing Agreement described below.
“Act” means the County and Municipality Development Revenue Bond Act, constituting
Article 3, Title 29, Colorado Revised Statutes, as amended.
“Bank” means First American State Bank, a Colorado state banking corporation, and its
successors and assigns.
“Bond Counsel” means any attorney at law or firm of attorneys, of nationally recognized
standing in matters pertaining to the federal tax exemption of interest on the bonds issued by states
and political subdivisions.
“Bonds” means the City of Fort Collins, Colorado Tax-Exempt Economic Development
Revenue Bond (The Residence at Oakridge Project), Series 2021A in the principal amount of
3
[Series A Par] and the City of Fort Collins, Colorado Taxable Economic Development Revenue
Bond (The Residence at Oakridge Project), Series 2021B in the principal amount of [Series B Par].
“Certificate of Continuing Program Compliance” means the certificate in the form attached
hereto as Exhibit C certifying as to the compliance by the Project with the provisions of this
Regulatory Agreement.
“Certification of Tenant Eligibility” means a certificate in the form of Exhibit “B” attached
hereto or in such other form as is approved in writing by the City.
“City” means the City of Fort Collins, Colorado and its successors and assigns.
“City Representative” means any person (who may be an employee of the City) designated
from time to time to act hereunder on behalf of the City.
“Code” means the Internal Revenue Code of 1986, as amended, and with respect to a
specific section •thereof such reference shall be deemed to include the regulations and rulings
promulgated under such section, all as in effect on the date hereof.
“Determination Date” means each anniversary date of the tenant lease of each Lower
Income Tenant.
“Event of Default” means a default in the performance or observance of any covenant,
agreement or obligation of the Owner set forth in this Regulatory Agreement.
“Financing Agreement” means the Financing Agreement dated as of [closing date], 2021,
by and among the City, the Owner, and the Bank, pursuant to which the Bonds have been issued,
as it may be amended, modified, supplemented or restated from time to time.
“Issue Date” means the date on which the Bonds are issued.
“Lower Income Tenants” means individuals or families, determined on the basis of the
“Certification of Tenant Eligibility” attached hereto as Exhibit “B” and incorporated by reference
herein as certified by such individual or family, who have an adjusted gross income (anticipated
total annual income) which does not exceed 60 percent (60%) of the median gross income for the
Fort Collins-Loveland Statistical Area. However, if all the occupants of a Lower Income Unit are
Students, such individuals may not be treated as Lower Income Tenants. Subject to the preceding
two sentences, “Lower Income Tenant” may include any individual who is (i) a Student and
receiving assistance under Title IV of the Social Security Act, (ii) a Student who was previously
under the care and placement responsibility of the Colorado agency responsible for administering
a plan under part B or part E of Title IV of the Social Security Act or (iii) enrolled in a job training
program receiving assistance under the Job Training Partnership Act or under other similar
Federal, state or local laws.
“Lower-Income Units” means the dwelling units in the Project designated for occupancy
by Lower-Income Tenants pursuant to Section 4 hereof.
4
“Original Regulatory Agreement” means the Regulatory Agreement and Declaration of
Restrictive Covenants made and entered into as of May 1, 2001 by and among the City, the Owner,
and U.S. Bank National Association, a national banking association duly organized and existing
under the laws of United States.
“Owner” means The Residence at Oakridge LLC, a Florida limited liability company, and
its successors and assigns, and any surviving, resulting or transferee entity.
“Owner Representative” means the person or persons (who may be employees of the
Owner) designated from time to time to act hereunder on behalf of the Owner in a written
certificate furnished to the City and Bank containing a specimen signature of such person or
persons and signed on behalf of the Owner by a duly authorized representative of the Owner.
“Project” means that portion of the Project Facilities and the Project Site which are deemed
to be financed with the proceeds of the Bonds pursuant to an allocation approved by bond counsel
on the date of issuance of the Bonds.
“Project Facilities” means, with respect to the Project, the buildings, structures and other
improvements constructed on the Project Site, and all equipment, fixtures and other property
owned by the Owner and located on the Project Site, or used in connection with, such buildings,
structures and other improvements and all functionally related and subordinate facilities.
“Project Loan” means the loan made pursuant to the Financing Agreement.
“Project Loan Documents” means, collectively, this Regulatory Agreement and the
Financing Agreement, and all other documents related to the Project Loan executed by the Owner.
“Project Mortgage” means the Deed of Trust made in favor of the Bank by the Owner.
“Project Site” means the parcel of real property described in Exhibit “A” hereto which is
attached hereto, and incorporated by reference herein, and all rights and appurtenances thereunto
appertaining.
“Qualified Project Period” means the period beginning on the first day on which ten percent
of the dwelling units in the Project are first occupied and ending on the later of (i) the date which
is fifteen years after the date on which 50% of the dwelling units in the Project were first occupied;
or (ii) the first day on which no tax-exempt private activity bond issued with respect to the Project
is outstanding; or (iii) the date on which any assistance provided with respect to the Project under
Section 8 of the United States Housing Act of 1937 terminates.
“Regulatory Agreement” means this Amended and Restated Regulatory Agreement and
Declaration of Restrictive Covenants dated as of [closing date], 2021, among the City, the Bank
and the Owner.
“State” means the State of Colorado.
“Student” means any full-time Student (within the meaning of Section 42(i)(3)(D) of the Code)
unless he or she is described in Section 42(i)(3)(D)(ii) of the Code.
5
“2001A Bonds” means the City of Fort Collins, Colorado Variable Rate Economic
Development Revenue Bonds, Series 2001A (The Residence at Oakridge Project), in the original
aggregate principal amount of $3,555,000.
“2021A Bond” means the City of Fort Collins, Colorado Tax-Exempt Economic
Development Revenue Bond (The Residence at Oakridge Project), Series 2021A in the principal
amount of [Series A Par]
Unless the context clearly requires otherwise, words of the masculine, feminine or neuter
gender shall be construed to include each other gender when appropriate and words of the singular
number shall be construed to include the plural number and vice versa, when appropriate. All the
terms and provisions hereof shall be construed to effectuate the purposes set forth in this
Regulatory Agreement and to sustain the validity hereof.
The titles and headings of the sections of this Regulatory Agreement have been inserted
for convenience of reference only, are not to be considered a part hereof and shall not in any way
modify or restrict any of the terms or provisions hereof or be considered or given any effect in
construing this document or any provision hereof or in ascertaining intent, if any question of intent
shall arise.
The Original Regulatory Agreement is superseded and replaced in its entirety by this
Agreement.
Section 2. The Project.
The Owner hereby represents, warrants and covenants as follows:
A. The Project will be operated in accordance with the Project description contained
in the Financing Agreement.
B. The Owner will not knowingly and voluntarily take or omit to take, as is applicable,
any action if such action or omission would in any way cause the proceeds from the sale of the
Bonds to be applied in a manner contrary to the requirements of this Regulatory Agreement.
Section 3. Residential Rental Property.
The Owner hereby represents, warrants and covenants as follows:
A. The Project will be operated for the purpose of providing multifamily rental
housing within the meaning of Section 142(d) of the Code and the Owner shall own, manage and
operate (or cause the management and operation of) the Project as a project providing multifamily
rental housing comprised of a building or structure or several interrelated buildings or structures,
each consisting of more than one dwelling unit and facilities functionally related and subordinate
thereto, and no other facilities. As used herein facilities functionally related and subordinate to the
Project shall include facilities for use by the tenants, including, for example, swimming pools,
other recreational facilities, parking areas, and other facilities which are reasonably required for
6
the Project, for example, heating and cooling equipment, trash disposal equipment or units for
resident managers or maintenance personnel.
B. All of the dwelling units in the Project will be similarly constructed, and each
dwelling unit in the Project will contain facilities for living, sleeping, eating, cooking and
sanitation for a single person or a family which are complete, separate and distinct from other
dwelling units in the Project and each dwelling unit will include a sleeping area, bathing and
sanitation facilities and cooking facilities equipped with a cooking range/microwave, refrigerator
and sink.
C. The Owner will not knowingly permit any of the dwelling units in the Project to be
used on a transient basis and will not rent any of the units for a period of less than thirty (3 0)
consecutive days and none of the dwelling units in the Project will at any time be leased or rented
for use as a hotel, motel, dormitory, fraternity house, sorority house, rooming house, hospital,
nursing home, sanitarium, rest home or trailer court or park or place of business.
D. No part of the Project will at any time be owned or used by a cooperative housing
corporation, except a cooperative housing corporation which is eligible for tax exempt multifamily
residential rental housing bond financing under the Code.
E. The Project Site consists of a parcel or parcels that are contiguous (parcels are
contiguous if their boundaries meet at one or more points) except for the interposition of a road,
street or stream, and all of the Project will comprise a single geographically and functionally
integrated project for multifamily rental housing, as evidenced by the common ownership,
management, accounting and operation of the Project.
F. The Owner will not sell individual dwelling units within the Project.
G. The requirements of this Section shall apply for a term equal to the Qualified
Project Period except as otherwise provided in Sections 11 hereof.
Section 4. Lower-Income Tenants.
The Owner hereby represents, warrants and covenants as follows:
A. Each dwelling unit in the Project (other than any units approved by the City for
occupancy by a resident manager or other necessary employee) will be rented or held available for
rental, on a first-come, first-served basis, to the general public on a continuous, non-transient basis
at all times during the Qualified Project Period, and may not during such period be converted to
condominium, owner-occupied or other non-rental use.
B. At least forty percent (40%) of the completed dwelling units in the Project (other
than any units approved by the City for occupancy by a resident manager or other necessary
employee), will be occupied (or held vacant and available for immediate occupancy) at all times
during the Qualified Project Period by Lower Income Tenants. For purposes of this subsection (B),
a vacant unit which was most recently occupied by a Lower Income Tenant is treated, except as
provided in subsection (C) of this Section, as occupied by a Lower-Income Tenant until
7
reoccupied, other than for a temporary period of not more than thirty-one (31) days, at which time
the character of such unit shall be redetermined.
C. The completed units that constitute Lower Income Units will be determined at the
time of initial occupancy by each prospective tenant. If a tenant qualifies as a Lower Income
Tenant upon commencement of such tenant's occupancy of a unit, such tenant shall be treated as
a Lower Income Tenant during their tenancy. The preceding sentence shall cease to apply to any
tenant whose income as of the most recent Determination Date exceeds one hundred forty percent
(140%) of sixty percent (60%) of median income, determined in accordance with the Code, if after
such Determination Date, but before the next Determination Date, any residential unit of
comparable or smaller size in the Project is occupied by a new resident whose income exceeds
sixty percent (60%) of median income, determined in accordance with the Code.
D. If all dwelling units in the Project are not completed simultaneously, the Lower
Income Units must constitute the required percentage (40.0%) of the completed residential units.
E. The Owner will obtain and maintain on file Certifications of Tenant Eligibility from
each Lower Income Tenant annually substantially in the form attached hereto as Exhibit “B.” The
Owner shall certify its receipt of such certificates to the Bank and the City. The Owner shall make
a good faith effort to verify that the income provided by an applicant in an income certification is
accurate by taking any of the following steps as a part of the verification process: (1) obtain a pay
stub for the most recent pay period, (2) obtain an income tax return for the most recent tax year,
(3) obtain an income verification form from the applicant's current employer (a copy or facsimile
of which is acceptable), (4) obtain an income verification form from the Social Security
Administration and/or the Colorado Department of Social Services if the applicant receives
assistance from either of such agencies, or (5) if the applicant is unemployed and has no such tax
return, obtain another form of independent verification.
F. The Owner will maintain complete and accurate records pertaining to the Lower
Income Units, and will, during normal business hours and upon reasonable notice, permit any duly
authorized representative of the City or the Bank to inspect the books and records of the Owner
pertaining to the incomes of and rents charged to Lower-Income Tenants residing in the Project.
G. The Owner will prepare and submit to the City and the Bank on the first day of each
calendar quarter beginning with the first calendar quarter after the execution of this Regulatory
Agreement a “Certificate of Continuing Program Compliance” substantially in the form attached
hereto as Exhibit “C” executed by the Owner stating (i) the percentage of the dwelling units in the
Project which were occupied by Lower Income Tenants (or held vacant and available for
occupancy by Lower Income Tenants as provided in Section 4A above) during such period, (ii)
that to the knowledge of the Owner, no default has occurred under this Regulatory Agreement, and
(iii) that all fees and expenses due to the City and the Bank under this Regulatory Agreement have
been paid.
H. The Owner will accept as tenants, on the same basis as all other prospective tenants,
Lower Income Tenants who are recipients of federal certificates and/or vouchers for rent subsidies
pursuant to the existing program under Section 8 of the United States Housing Act of 1937 or its
8
successor, and shall not apply selection criteria to Section 8 certificate owners that are more
burdensome than the criteria applied to all other prospective tenants.
I. The requirements of this Section shall apply for the Qualified Project Period, except
as otherwise provided in Section 12 hereof.
Upon timely receipt of documents to be provided under this Section, the City or the Bank
shall be entitled, without further review, to assume compliance by the Owner with this Section,
unless otherwise specifically notified in writing of non-compliance.
Section 5. Agreement to Record.
The Owner hereby represents, warrants and covenants that it will cause this Regulatory
Agreement to be recorded in the real property records of the County Clerk and Recorder of Larimer
County, Colorado and in such other places as the Bank or the City may reasonably request. The
Owner shall pay all fees and charges incurred in connection with any such recording.
Section 6. Non-Recourse Provisions.
In any action commenced to enforce the obligations of the Owner created or arising
hereunder, the judgment shall not be enforceable personally against any member, officer or
director of the Owner or their respective successors, assigns, heirs or personal representatives,
except for moneys paid or disbursed in violation of the provisions of the Project Loan Documents
and their interest in the properties and/or liens conveyed in or encumbered in and by the Project
Loan Documents, and any such judgment shall not be subject to execution on nor be a lien on any
other assets of any member, officer or director of the Owner, or their respective successors, assigns,
heirs or personal representatives. The foregoing provisions shall not limit or otherwise affect in
any way any separate written indemnity agreement executed and delivered by any person in
connection with the transactions contemplated by the Project Loan Documents. Nothing in this
Section shall preclude the City or the Bank from proceeding directly against the Owner in
connection with the obligation of the Owner for payment of fees, reimbursement of expenses or to
indemnify the City or the Bank under this Regulatory Agreement or the Financing Agreement.
Section 7. Consideration.
The City has issued the Bonds to obtain moneys to provide for a portion of the costs of the
refunding of the 2001A Bonds as described in the preambles hereto. In consideration of the
issuance of the Bonds by the City, the Owner has entered into this Regulatory Agreement and has
agreed to restrict the uses to which this Project can be put for the term hereof.
Section 8. Reliance.
The City, the Bank and the Owner hereby recognize and agree that the representations and
covenants set forth herein may be relied upon by the Bank, the City, the Owner and the owners of
the Bonds. In performing their duties and obligations hereunder, the City and the Bank may rely
upon statements and certificates of the Owner, Lower Income Tenants, and upon audits of the
books and records of the Owner pertaining to occupancy and rental of the Project. In performing
its duties hereunder, the Owner may rely on the Certificates of Tenant Eligibility and any
9
verifications in support thereof, including certifications as required under Section 8 of the United
Stated Housing Act of 1937, or any successor program, unless the Owner has actual knowledge
that such Certificates or verifications are inaccurate. In addition, the City, the Bank and the Owner
may consult with Bond Counsel, and the opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken or suffered by the City, the Bank or the
Owner hereunder in good faith and in conformity with such opinion. In determining whether any
default or lack of compliance by the Owner exists under this Regulatory Agreement, neither the
Bank nor the City shall be required to conduct any investigation into or review of the operations
or records of the Owner and may rely solely on any notice or certificate delivered to the Bank or
the City by the Owner or to the Bank and the Owner by the City with respect to the occurrence or
absence of a default.
Section 9. Project Within the Boundaries of the City.
The Owner hereby represents and warrants that the Project is located entirely within the
city limits of the City.
Section 10. Sale or Transfer of the Project.
Except for transfers specifically permitted under the Project Loan Documents, the Owner
hereby covenants and agrees not to sell, transfer or otherwise dispose of the Project or any portion
thereof (other than for individual tenant use as contemplated hereunder), without obtaining the
prior written consent of the City, upon (i) receipt by the City and the Bank of an opinion of counsel
to the transferee that the transferee has duly assumed the obligations of the Owner under this
Regulatory Agreement and that such obligations and this Regulatory Agreement are legal, valid
and binding obligations of the transferee, (ii) receipt by the City and the Bank of a certificate of an
Owner Representative to the effect that no default has occurred and is continuing under this
Regulatory Agreement or the Project Loan Documents, (iii) evidence that all fees and expenses
due the City and the Bank under this Regulatory Agreement and the Financing Agreement are
current, and (iv) receipt by the City and the Bank of an opinion of Bond Counsel that such purchase
or transfer will not cause interest on the 2021A Bond to become includable in gross income for
federal income tax purposes. It is hereby expressly stipulated and agreed that any sale, transfer or
other disposition of the Project in violation of this section shall be null, void and without effect,
shall cause a reversion of title to the Owner, and shall be ineffective to relieve the Owner of its
obligations under this Regulatory Agreement. Nothing contained in this section shall affect any
provision of any other document or instrument between the Owner and the City or the Bank which
requires the Owner to obtain the consent of the City or the Bank as a precondition to sale, transfer
or other disposition of the Project or which gives the Bank the right to accelerate the maturity of
the Project Loan, or to take some other similar action with respect to the Project Loan upon the
sale, transfer or other disposition of the Project.
Section 11. Term.
This Regulatory Agreement shall become effective upon its execution and delivery. This
Regulatory Agreement shall remain in full force and effect for a term and period equal to the
Qualified Project Period, it being expressly agreed and understood that the provisions hereof are
intended to survive the retirement of the Bonds and the Project Loan. The terms of this Regulatory
10
Agreement to the contrary notwithstanding, this Regulatory Agreement, and all and several of the
terms hereof, shall terminate and be of no further force and effect in the event of (i)(a) a foreclosure
of the lien of the Project Mortgage, or delivery of a deed in lieu of foreclosure, pursuant to which
a purchaser or transferee pursuant to such foreclosure, shall take possession of the Project or (i)(b)
involuntary noncompliance with the provisions of this Regulatory Agreement caused by fire,
seizure, or requisition, or change in a Federal law or an action of a Federal agency after the date
hereof which prevents the enforcement of the provisions hereof, or condemnation or similar event
and (ii) the payment in full and retirement of the Bonds within a reasonable period thereafter;
provided, however, that the preceding provisions of this sentence shall cease to apply and the
restrictions contained herein shall be reinstated if, at any time subsequent to the termination of
such provisions as the result of the foreclosure of the lien of the Project Mortgage or the delivery
of a deed in lieu of foreclosure or a similar event, the Owner or any “related person” (within the
meaning of Section 103(b) of the 1954 Code) obtains an ownership interest in the Project for
Federal income tax purposes. Upon the termination of all and several of the terms of this
Regulatory Agreement, the parties hereto agree at the Owner's request and expense, to execute and
deliver appropriate instruments of release and discharge of the terms hereof and to permit the
recording thereof; provided, however, that the execution and delivery of such instruments shall not
be necessary or a prerequisite to the termination of this Regulatory Agreement in accordance with
its terms.
Section 12. Burden and Benefit.
The City and the Owner hereby declare their understanding and intent that the burden of
the covenants set forth herein touch and concern the Project Site in that the Owner's legal interest
in the Project is rendered less valuable thereby.
The City and the Owner hereby declare their understanding and intent that the covenants,
reservations and restrictions set forth herein directly benefit the Project Site (i) by enhancing and
increasing the enjoyment and use of the Project by certain Lower Income Tenants, and (ii) by
making possible the obtaining of advantageous financing for the Project.
Section 13. Uniformity; Common Plan.
The covenants, reservations and restrictions hereof shall apply uniformly to the entire
Project in order to establish and carry out a common plan for the use, development and
improvement of the Project Site.
Section 14. Enforcement.
A. The Owner, upon reasonable prior notice, shall permit any duly authorized
representative of the City or the Bank, to inspect any books and records of the Owner regarding
the Project and with respect to the incomes of Lower Income Tenants which pertain to compliance
with the provisions of this Regulatory Agreement and of the Code; provided, however, the City or
the Bank shall have no affirmative duty to inspect such records.
B. In addition to the information provided for elsewhere herein, the Owner shall
submit any other information, documents or certifications requested by the City or the Bank which
either of them deem reasonably necessary to substantiate the Owner's continuing compliance with
11
the provisions of this Regulatory Agreement and the Code; provided, however, the City or the
Bank shall have no affirmative duty to request or inspect such information.
C. The City and the Owner each covenants that it will not knowingly take or permit
any action that would adversely affect the exemption from federal income taxation of interest on
the 2021A Bond. Moreover, each covenants to take, subject to receipt of indemnification
satisfactory to the City from the Owner, any lawful action (including amendment of this
Regulatory Agreement as may be necessary, in the opinion of Bond Counsel) to comply fully with
all applicable rules, rulings, policies, procedures, regulations or other official statements
promulgated or proposed by the Department of the Treasury or the Internal Revenue Service from
time to time pertaining to obligations the interest on which is excluded from gross income under
the Code and affecting the Project.
D. The Owner covenants and agrees to inform the City and the Bank by written notice
of any violation of the Owner's obligations hereunder within thirty (30) days of first discovering
any such violation, and the Bank covenants and agrees to inform the Owner by written notice of
any violation of the Owner's obligations hereunder within thirty (30) days of first discovering such
violation and to provide the Owner a period of time in which to correct such violation. If any such
violation is not corrected to the satisfaction of the City and the Bank within the period of time
specified by the Bank, which shall be at least thirty (30) days after the date any notice to the Owner
is mailed, or within such further time as the City and the Bank determine is necessary to correct
the violation without loss of the exclusion from gross income of interest on the 2021A Bond, but
not to exceed any limitations set by applicable regulations, without further notice the City shall
declare a default under this Regulatory Agreement effective on the date of such declaration of
default, and upon such default the Owner hereby agrees to pay the City any rents or other amounts
received by the Owner for any units in the Project which were in violation of this Regulatory
Agreement during the period such violation continued, and the City may, at the Owner's expense,
apply to any court, state or federal, for specific performance of this Regulatory Agreement or an
injunction against any violation of this Regulatory Agreement, or any other remedies at law or in
equity or any such other actions as shall be necessary or desirable so as to correct non-compliance
with this Regulatory Agreement.
E. The Owner and the City each acknowledges that the primary purpose for requiring
compliance by the Owner with the restrictions provided in this Regulatory Agreement is to comply
with the requirements of the Code and to preserve the federal income tax exemption of interest on
the 2021A Bond.
No breach of this Regulatory Agreement will defeat, render invalid or impair the lien of
the Project Mortgage.
Section 15. Estoppel Certificate.
The City and the Bank agree, upon the request and at the expense of the Owner or its
successor in interest, to promptly execute and deliver to the Owner or its successor in interest or
to any potential or actual purchaser, mortgagor or encumbrancer of the Project, a written certificate
stating, if the same be true, that the City and the Bank have no actual knowledge of any violation
12
or default of the Owner of any of its covenants hereunder, or if there are such violations or defaults,
the nature of the same.
Section 16. Governing Law.
This Regulatory Agreement shall be governed by the laws of the State of Colorado, except
to the extent such laws conflict with the laws of the United States.
Section 17. Amendments.
This Regulatory Agreement shall be amended only by a written instrument executed by the
parties hereto or their successors in title, and duly recorded in the real property records of Larimer
County, Colorado. The parties hereto agree that, no amendment may occur without the prior
written consent of each party hereto.
Section 18. Notice.
Any notice required to be given hereunder shall be given by personal delivery, overnight
delivery, certified or registered mail, postage prepaid, return receipt requested, first-class mail,
postage prepaid or facsimile at the addresses specified below, or at such other addresses as may be
specified in writing by the parties hereto:
If to the City: City of Fort Collins, Colorado
300 West La Porte Avenue
Fort Collins, Colorado 80521
Attn: City Attorney
Telephone: _______
Fax: ______
If to the Bank: First American State Bank
____________________
_______, Colorado _____
Telephone:
Facsimile:
If to the Owner: The Residence at Oakridge LLC
c/o National Healthcare Associates
999 Ponce De Leon Boulevard, Suite 950
Coral Gables, Florida 33134
Attention: Managing Member
Telephone: (305) 444-5007
Facsimile: (305) 444-5598
A duplicate copy of each notice, certificate or other communication given hereunder by the
City or the Owner shall also be given to the Bank. The City, the Owner and the Bank may, by
notice given hereunder, designate any further or different addresses to which subsequent notices,
certificates or other communications shall be sent.
13
Section 19. Severability.
If any provision of this Regulatory Agreement shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining portions hereof shall not in any way be
affected or impaired thereby.
Section 20. Multiple Counterparts.
This Regulatory Agreement may be simultaneously executed in multiple counterparts, all
of which shall constitute one and the same instrument, and each of which shall be deemed to be an
original.
Section 21. Limited Liability.
All obligations of the City incurred hereunder shall be special, limited obligations, payable
solely and only from Bond proceeds, revenues and other amounts derived by the City or the Bank
from the assets pledged under the Financing Agreement.
Section 22. Indemnification.
The Owner hereby indemnifies, and agrees to defend and hold harmless, the City, its
mayor, council members, officers, employees and agents from, and the Bank, its officers, directors,
employees and agents, from and against all liabilities, losses, damages, costs, expenses (including
reasonable attorney's fees and expenses), causes of action, suits, allegations, claims, demands and
judgments of any nature arising from the consequences of a legal or administrative proceeding or
action brought against any of them on account of any failure by the Owner to comply with the
terms of this Regulatory Agreement, or on account of any representation or warranty of the Owner
contained herein being untrue.
Section 23. Attorney's Fees.
In case any action at law or in equity, including an action for declaratory relief, is brought
against the Owner to enforce the provisions of this Regulatory Agreement, the Owner agrees to
pay reasonable attorney's fees and other reasonable expenses incurred by the City and/or the Bank
in connection with such action.
[Signature Page to Follow]
S-1
IN WITNESS WHEREOF, the City, the Bank and the Owner have executed this
Regulatory Agreement by duly authorized representatives, all on the date first above written.
CITY OF FORT COLLINS, COLORADO
By
Mayor
(SEAL)
Attest:
By
City Clerk
COUNTERSIGNED:
By
Financial Officer
FIRST AMERICAN STATE BANK
By
Authorized Signer
THE RESIDENCE AT OAKRIDGE LLC,
a Florida limited liability company
By: NHA @ Fort Collins, LLC, its Managing
Member:
By NHA Fort Collins, Inc.,
Its Managing Member
By:________________________________
Patricia Greenberg, Its President
S-2
U.S Bank National Association as a party to the Original Regulatory Agreement consents to this
Amended and Restated Regulatory Agreement and Declaration of Restrictive Covenants.
U.S. BANK NATIONAL ASSOCIATION
By _____________________________
Authorized Signer
[Signature page to the Amended and Restated Regulatory Agreement and Declaration of
Restrictive Covenants]
N-1
STATE OF COLORADO )
)
COUNTY OF LARIMER ) SS.
)
CITY OF FORT COLLINS )
The foregoing instrument was acknowledged before me this ___ day of May, 2021, by
_____, as Mayor of the City of Fort Collins, Colorado and by __________, as City Clerk of the
City of Fort Collins, Colorado.
WITNESS my hand and official seal.
Notary Public for the State of Colorado
(SEAL)
STATE OF COLORADO )
) SS.
COUNTY OF LARIMER )
)
CITY OF FORT COLLINS )
The foregoing instrument was acknowledged before me this ___ day of May, 2021, by
_______, as Chief Financial Officer of the City of Fort Collins, Colorado.
WITNESS my hand and official seal.
Notary Public for the State of Colorado
(SEAL)
STATE OF COLORADO )
)
COUNTY OF _______ ) SS.
)
CITY OF _______ )
The foregoing instrument was acknowledged before me this ___ day of May, 2021, by
__________ as Authorized Signer of First American State Bank.
WITNESS my hand and official seal.
N-2
Notary Public for the State of Colorado
(SEAL)
STATE OF _________ )
)
COUNTY OF ________ ) SS.
)
CITY OF ______ )
The foregoing instrument was acknowledged before me this _____ day of ___________,
2021, by Patricia Greenberg, as President of NHA Fort Collins, Inc., as Managing Member of
NHA @ Fort Collins, LLC, as Managing Member of THE RESIDENCE @ OAKRIDGE, LLC,
a Florida limited liability company.
WITNESS my hand and official seal.
Notary Public for the State of Colorado
(SEAL)
STATE OF COLORADO )
)
COUNTY OF _______ ) SS.
)
CITY OF _______ )
The foregoing instrument was acknowledged before me this ___ day of May, 2021, by
__________ as Authorized Signer of U.S Bank National Association.
WITNESS my hand and official seal.
Notary Public for the State of Colorado
(SEAL)
[Notary page to the Regulatory Agreement and Declaration of Restrictive Covenants]
A-1
EXHIBIT A
PROPERTY
Lot 1 and Tract A
Oakridge Business Park 34th Filing,
according to the Plat recorded June 12, 2001 at Reception No. 2001046177,
County of Larimer,
State of Colorado
B-1
EXHIBIT B
CERTIFICATION OF TENANT ELIGIBILITY
Part I -- General Information
1. Project Name 2. Project Information
3. No. of Total Units 4. Name of Lender
5. Owner's Name 6. Manager's Name and Telephone
Number
Part II — Unit Information
7. Apartment
Address
8. No. of
Bedrooms
9. Monthly
Rent
10. No. of
Occupants
Part III -- Affidavit of Tenant
I, _______________, and I,________________, as applicants for rental of a Lower-Income Unit
in the above-described Project, do hereby represent and warrant as follows:
A. List all the occupants of the apartment, the relationship (if any) of the various
occupants, their ages, and indicate whether they are Students (for this purpose, a Student is any
individual who has been, or will be, a full-time Student at an educational institution during five
months (whether consecutive or not) of the year in which this application is submitted, other than
a correspondence school, with regular facilities and Students).
Occupant
Relationship
Age
Student
(Yes or No)
Social Security
Number
(a)
(b)
(c)
(d)
(e)
(f)
If all of the occupants are Students, answer the following questions for each occupant:
1. Is any Student listed above married and files a joint return for federal income tax
purposes? List any such Students.
Name(s) No Not Applicable
B-2
2. Is any Student listed above (i) a single parent living with his/her children, (ii) not a
dependent of another individual and (iii) whose children are not dependents of an
individual other than their parents? List any such Students.
Yes Name(s) No Not Applicable
3. Is any Student listed above a Student receiving assistance under Title IV of the
Social Security Act (Temporary Assistance for Needy Families)? List any such
Students.
Yes Name(s) No Not Applicable
4. Is any Student listed above a Student enrolled in a job-training program receiving
assistance under the Job Training Partnership Act or under other similar Federal,
State or local laws? List any such Students.
Yes Name(s) No Not Applicable
5. Is any Student listed above a Student who was previously under the care and
placement responsibility of a foster care program (under part B or E of Title IV of
the Social Security Act)? List any such Students.
Yes Name(s) No Not Applicable
B. (M/Our) adjusted income (anticipated total annual income) does not exceed ___ percent
(__%) of the median gross income for the ____ Metropolitan Statistical Area. (I/We)
understand that the applicable median gross income is $______. The following
computation includes all income (I/We) anticipate receiving for the 12-month period
beginning on the date (I/We) execute a rental agreement for a Lower-Income Unit or the
date of which (I/We) will initially occupy such unit, whichever is earlier.
1. For the tenant and all members of the household include for the 12-month period
beginning this date anticipated income from the following sources:
(a) the full amount, before any payroll deductions, of wages, salaries, overtime
pay, commissions, fees, tips, bonuses and other compensation for personal
services, and payments in lieu of earnings, such as unemployment and
disability compensation, worker's compensation and severance pay and any
earned income tax credit to the extent it exceeds income tax liability
(b) net income from operations of a business or profession or net income of any
kind from real or personal property (for such purposes, without deducting
expenditures for business expansion or amortization of capital indebtedness
or any allowance for depreciation of capital assets)
(c) interest and dividends
B-3
(d) the full amount of periodic payments received from social security,
annuities, pensions, retirement funds, insurance policies, disability or death
benefits and other similar types of periodic receipts, alimony, child support,
and regular contributions or gifts from persons not residing in the unit
(e) the maximum amount of public assistance available
(f) regular and special pay and allowances to a member of armed forces
(whether or not living in the dwelling) who is head of the family or spouse
(g) with respect to any member of the household or any person whose income
or contributions were included in 1(d) or (f), above, set forth the amount of
savings, stocks, bonds, equity in real property, or other form of capital
investment (excluding interest in Indian trust lands) if such amounts, when
added together, exceed $5,000
(i)
(ii)
Multiply the amount
in (i), above, by
the current passbook
savings rate as
determined by HUD
If (i), above, is
greater than zero,
list the amount of
income expected to
be derived from the
assets described
above
(iii)
Line (ii) minus
Line (iii) (if
less than $0,
enter $0) (h)
Subtotal (a) through (g)
Less: portion of above items
which are income of a member
of the household who is
less than 18 years old
Total Eligible Income
B-4
Note: The following items are not considered income: casual, sporadic or irregular gifts;
amounts specifically for or in reimbursement of medical expenses; lump sum additions to family
assets, such as inheritances, insurance payments (including payments under health and accident
insurance and worker's compensation); capital gains and settlement for personal or property losses;
educational scholarships paid directly to the Student or educational institution; government
benefits to a veteran for use in meeting the costs of tuition, fees, books and equipment (but in either
case only to the extent used for such purposes); hazardous duty pay to a member of the household
in the armed forces who is away from home and exposed to hostile fire; foster child care payments;
value of coupon allotments for purpose of food under Food Stamp Act of 1977; relocation
payments under Title II of Uniform Relocation Assistance and Real Property Acquisition Policies
Act of 1970; payments to volunteers under the Domestic Volunteer Service Act of1973; payments
received under the Alaska Native Claims Settlement Act; income. derived from certain
submarginal land of the United States that is held in trust for certain Indian tribes; payments on
allowances made under the Department of Health and Human Services' Low-Income Home
Energy Assistance Program; payments received from the Job Partnership Training Act; income
derived from the disposition of funds of the Grand River Band of Ottawa Indians; the first $2000
of per capita shares received from judgment funds awarded by the Indian Claims Commission of
the Court of Claims or from funds held in trust for an Indian tribe by the Secretary of Interior.
2. As of the first day of occupancy of the unit which (I/We) propose to rent (a) either
(myself/ourselves) or at least one other occupant of the unit is not an individual
enrolled as a full-time Student during each of five (5) calendar months during the
calendar year in which occupancy of the unit begins at an educational organization
which normally maintains a regular faculty and curriculum and normally has a
regularly enrolled body of Students in attendance and is not an individual pursuing
a full-time course of institutional or farm training under the supervision of an
accredited agent of such an educational organization or of a state or political
subdivision thereof or (b) if all of the occupants of the unit will be individuals
described in (a), either (myself/ourselves) or one other occupant of the unit is a
husband and wife entitled to make a single return jointly of Federal income taxes.
3. Neither (myself/ourselves) nor any other occupant of the unit (I/We) propose to
rent is the owner or the rental housing project which includes the unit (hereinafter
the “Owner”).
4. This affidavit is made with the knowledge what it will be relied upon by the Owner
to determine maximum income for eligibility and (I/We) warrant that all
information set forth in this Part III is true, correct and complete and based upon
information (I/We) deem reliable and that the estimate contained in paragraph 1 is
reasonable and based upon such investigation as the undersigned deemed
necessary.
5. (I/We) will assist the Owner in obtaining any information or documents required to
verify the statements made in this Part III.
6. (I/We) acknowledge that (I/We) have been advised that the making of any
misrepresentation or misstatement in this affidavit will constitute a material breach
B-5
of (my/our) agreement with the Owner to lease the unit and will entitle the Owner
to prevent or terminate (my/our) occupancy of the unit by institution of an action
for ejection or other appropriate proceedings.
(I/We) do hereby swear under penalty of perjury that the foregoing statements are true and
correct.
Date Applicant
B-6
INCOME VERIFICATION
(for employed persons)
The undersigned employee has applied for a rental unit located in a project refinanced
under the City of Fort Collins, Colorado Tax-Exempt Economic Development Revenue Bond (The
Residence at Oakridge Project), Series 2021A (the “Bonds”), multifamily rental housing
development program for persons of low and moderate income. Every income statement of a
prospective tenant must be stringently verified. Please indicate below the employee's current
annual income from wages, overtime, bonuses, commissions or any other form of compensation
received on a regular basis.
Annual wages
Bonuses
Commissions
Total current income
I hereby certify that the statement above are true and complete to the best of my knowledge.
I hereby grant permission to disclose my income to the City of Fort Collins, Colorado in
order that they may determine my income eligibility for rental of an apartment located in their
project which has been financed with the Bonds.
Signature Date Title
Please send to:
B-7
INCOME VERIFICATION
(for self-employed persons)
I hereby attach copies of my individual federal and state income tax returns for the
immediately preceding calendar year for which such income tax returns could have been filed (or,
if not filed, were not required to be filed), and certify that the information shown in such income
tax returns is true and complete to the best of my knowledge and that any income tax returns not
filed were not required to be filed.
Signature Date
C-1
EXHIBIT C
CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
(To be filed prior to the 30th day after the end of each calendar quarter)
Witnesseth that on this ___ day of _______, 20__ , the undersigned, having borrowed
certain funds through the City of Fort Collins, Colorado (the “City”) for the purpose of financing
a multifamily housing project, does hereby certify that such multifamily housing pr oject is in
continuing compliance with the Amended and Restated Regulatory Agreement and Declaration of
Restrictive Covenants executed by the undersigned and recorded in the records of the County of
Larimer, Colorado and that to the knowledge of the undersigned no default exists under said
Regulatory Agreement. Specifically, it hereby is confirmed that each Lower-Income Tenant
currently residing in a unit in such housing project has completed a Certificate of Tenant Eligibility
and Income Verification in the form approved by the City and that since commencement of the
Qualified Project Period at least _% of the occupied units in the Project have been rented to (or are
vacant and last occupied by) Lower-Income Tenants, (each of the foregoing capitalized terms
having the meaning assigned in said Regulatory Agreement).
By:
Authorized Signature
Account #:fl’C-003 160
FORT•COLLINS
NOTICE IS HEREBY GIVEN that the Fort Collins City Con
STATE OF COLORADO)
55:AFFIDAVIT OF PUBLICATION
COUNTY OF LARIMER)
CITY OF FC-CLERK-LEGALS
300 LAPORTE AVE
FORT COLLINS CO 80521
I,being duly sworn,deposes and says that said is the legal clerk of the Fort Collins Coloradoan;that
the same is a daily newspaper of general circulation and printed and published in the City of Fort
Collins,in said county and state;that the notice or advertisement,of which the annexed is a true
copy,has been published in said daily newspaper and that the notice was published in the regular
and entire issue of every number of said newspaper during the period and time ofpublication of said
notice,and in the newspaper proper and not in a supplement thereof;that the publication of said
notice was contained in the issue ofsaid newspaper on
04/25/2 1
that said Fort Collins Coloradoan has been published continuously and uninterruptedly during the
period of at least six months next prior to the first publication of said notice or advertisement above
referred to;that said newspaper has been admitted to the United States mails as second-class matter
under the provisions of the Act of March 3,1879,or any amendments thereof;and that said
newspaper is a daily newspaper duly qualified for publishin egal notices and advertisements within
the meaning of the laws of the State of Colorado.
Legal Clerk
Subscribed and sworn to before me,within the County of Brown,State of Wisconsin this
25th of April 2021.
Notary Public
53iS~pi
Notary Expires
Legal No.0004701633
NANCY HEYRMAN
Ad#:0004701633 Notary Pubjjc Affidavit Prepared
P0:Ordinances -State of WiSCOnSI Sunday,ApriI25,2021 2:48am
This IS not an iflVOIC~
#of Affidavits 1
NOTICE IS.HEREBY GIVEN that theFortCollinsCityCouncil,on Tuesday,
April 20,2021,passed and adopted thefollowingordinancesonsecondreading:
ORDINANCE NO.041,2021
OF THE COUNCIL OF THE CITY OFFORTCOLLINSAPPROPRIATINGUNANTICIPATEDPHILANTHROPICREVENUERE-
CE VEDBYCITY GIVE FOR TRANSFER TO
NATURAL AREAS FOR RESTORATIONOFBOBCATRIDGE
ORDINANCE NO.042,2021OFTHECOUNCILOFTHE CITY OFFORTCOLLINSAUTHORIZINGTHEISSUANCEOF
THE CITY OF FORT COLLINS.COLORADO TAX-EXEMPT ECONOMICDEVELOPMENTREVENUEBOND(THE RESIDENCE AT OAKRIDGE
PROJECT),SERIES 2021A AND TAXABLEECONOMICDEVELOPMENTREVENUEBOND(THE RESIDENCEATOAKRIDGEPROJECT),SERIES
2021B TO REFUND THE CITY OFFORTCOLLINS.COLORADO VARIABLERATEECONOMICDEVELOP.
I
MENT REVENUE BONDS,SERIES2001A(THE RESIDENCE AT OAK-RIDGE PROJECT);AND AUTHORIZ
ING THE EXECUTION AND DELIVERYBYTHECITYOFAFINANCINGAGREEMENT,BONDS,AND OTHERUOtUME~T-5 IN CONNECTION
THEREWITH
ORDINANCE NO.043,2021
OF THE COUNCIL OF THE CITY OFFORTCOLLINSAMENDINGDIVISION3INARTICLEIIIOFCHAPTER8OFTHECODEOFTHECITYOFFORT
COLLINSCONCERNING THE CITY’S SELF-INSURANCEPROGRAMANDFUND
ORDINANCE NO.044,2021OFTHECOUNCILOFTHE CITY OFFORTCOLLINSAMENDINGDIVISION6INARTICLE
VII OF CHAPTER 20 THE CODE OFTHECITYOFFORTCOLLINSCONCERNINGTHECITY’S DEFENSEANDINDEMNITYOFITSEMPLOY
EES IN CERTAIN CIVIL,CRIMINALANDADMINISTRATIVEMATTERS
ORDINANCE NO-045,2021OFTHECOUNCILOFTHE CITY OFFORTCOLLINSAMENDINGSECTION23-354 OF THE
CODE OF THE CITY OF FORTCOLLINSREGARDIJ4GDISPOSITIONOFLANDBANK?ROPERTY
ORDINANCE NO.044,2021OFTHECOUNCILOFTHE CITY OF
FORT COLLINSMAKINGSUPPLEMENTAL APPROPRIATIONS,APPROPRIATINGPRIORYEARRESERVES,AND AUTHORI7INGTRANSFEROFEXIST
ING ARPROPRIATIONSF’)~F~OST-FIRE WATERSHED RE-I STOk’,~,”.C~TREATMENTS AND OP.I ERATIONAL COSTS ASSOCIATEDIWITHTREATINGFIRE-IMPACTEDIWATERSUPPLIESIORDINANCENO.?47’202’I OF THE COUNCIL OF THE CITY OFIFORTCOLLINSIAPPROPRIATIN’,.~lOR YEAR RE-P1 iT AND POWER
WRV~IN LIGIFUND~1 IES CUSTOM-FOR ELECTRIC UTILI1 CEERPAYMENTASSISTAF’
ORDINANCE NO.048,2021~.j~CITY OFOFTH~%COUNCIL OF T
FORT qOLLINSMAKINGVARIOUS Af~ENDMENTSTOTHEISLANDUSECITYOFFORTCOLLI?CODE
ORDINANCE NO.049,20”THE CITY OFOFTHECOUNCILOF
,F.ORT.COLLINS REENACTING~REREAL!ING~AND III OF THE~CHARTER 2,ARTICLE
1CODEIOF --OTHECIT.Y OF FORT LLINS RE-COMM ISL’ATING TO BOARDS A~S IONS
ORDINANCE NO 50,2021 ‘E CITY OF~OF THE COUNCIL OF TgFORTCOL!L’INS OF THE
AMENDING CHAPTER OF FORTCODEOFTHECITY
-COLLINS
TO ADD A NEW ARTICLE V CON-ME OFCERNINGTHEESTABLISHNTOURISMIMPROVEMCI
The full text of these ordinances Can befoundathttp://fcgov.com/publicnoticesorbycallingtheCityClerk’s Office at
(970)221-6515.0004701633Coloradoan
April 25,2021
a
Account #:fl’C-003160
FORT’COLLINSCowa~oi~
STATE OF COLORADO)
Invoice Text
NOTICE TS HEREBY GIVEN that the Fort Collins City Coun
CITY OF FC-CLERK-LEGALS
300 LAPORTE AVE
COUNTY OF LARIMER)
ss:AFFIDAVIT OF PUBLICATION
FORT COLLINS CO 80521
1,being duly sworn,deposes and says that said is the legal clerk of the Fort Collins Coloradoan;that
the same is a daily newspaper of general circulation and printed and published in the City of Fort
Collins,in said county and state;that the notice or advertisement,of which the annexed is a true
copy,has been published in said daily newspaper and that the notice was published in the regular
and entire issue of every number of said newspaper during the period and time of publication ofsaid
notice,and in the newspaper proper and not in a supplement thereof;that the publication of said
notice was contained in the issue of said newspaper on
04/25/2
that said Fort Collins Coloradoan has been published continuously and uninterruptedly during the
period of at least six months next prior to the first publication of said notice or advertisement above
referred to;that said newspaper has been admitted to the United States mails as second-class matter
under the provisions of the Act of March 3,1879,or any amendments thereof;and that said
newspaper is a daily newspaper duly qualified for publishing leg.otices and advertisements within
the meaning of the laws ofthe State of Colorado.
/
Subscribed and sworn to before me,within the County of Brown,State of Wisconsin this
25th of April 2021.
Legal Clerk
Legal No.0004705249
Ad#:0004705249
P 0 adopted ords
This is not an invoice
#of Affidavits 1
j NAF4CY HEYRMAN
I Notary Public[State of Wisconsin
Affidavit Prepared
Sunday,April 25.2021 2:48 am
Notary Public
5J53±
Notary Expires
NOTICE IS HEREBY GIVEN that theFortCollinsCityCouncil,on Tuesday.
fi 20,20Th passed and adopted theIngordinancesonsecondreodlng:
ORDINANCE NO.041,2021
OF THE COUNCIL OF THE CITY OFFORTCOLLINS
APPROPRIATING UNANTICIPATEDPHILANTHROPICREVENUERECEIVED
BY CITY GIVE FOR TRANSFER TONATURALAREASFORRESTORATIONOFBOBCATRIDGE
ORDINANCE NO.042,2021OFTHECOUNCILOFTHECITY OFFORTCOLLINS
AUTHORIZING THE ISSUANCE OFTHECITYOFFORTCOLLINS,COLORADO TAX.E~(EMPT ECONOM
IC DEVELOPMEI%LT REVENUE BOND(THE RESIDENCE AT OAKRIDGEPROJECT),SERIES 2021A AND TAXABLEECONOMICDEVELOPMENT
REVENUE BOND (THE RESIDENCEATOAKRIDGEPROJECT),SERIES2021BTOREFUNDTHECITYOF
FORT COLLINS,COLORADO VARIABLERATEECONOMICDEVELOPMENTREVENUEBONDS,SERIES2001A(THE RESIDENCE AT OAK-
RIDGE PROJECT);AND AUTHORIZINGTHEEXECUTIONANDDELIVERYBYTHECITYOFAFINANCINGAGREEMENT,BONDS,AND OTHERDOCUMENTSINCONNECTIONTHEREWITH
ORDINANCE NO.043,2021
OF THE COUNCIL OF THE CITY OFFORTCOLLINS
AMENDING DIVISION 3 IN ARTICLEIIIOFCHAPTERBOFTHECODEOFTHECITYOF
FORT COLLINSCONCERNINGTHECITY’S SELF-INSURANCEPROGRAMANDFUND
ORDINANCE NO.044,2021OFTHECOUNCILOFTHECITYOFFORTCOLLINS
AMENDING DIVISION 6 IN ARTICLEVIIOFCHAPTER2OFTHECODEOF
THE CITY OF FORT COLLINS CONCERNINGTHECITY’S DEFENSEANDINDEMNITYOFITSEMPLOYEESINCERTAINCIVILCRIMINAL
AND ADMINISTRATIVE MATTERS
ORDINANCE NO.045,2021OFTHECOUNCILOFTHECITYOFFORTCOLLINS
AMENDING SECTION 23-354 OF THECODEOFTHECITYOFFORT
COLLINS REGARDING DISPOSITIONOFLANDBANKPROPERTY
ORDINANCE NO.046,2021
OF THE COUNCIL OF THECITYOFPORTCOLLINSMAKING~UPPLEMENTAL APPROPRIATIONS,APPROPRIATING
PRIOR YEAR RESERVES,AND AUTHORIZINGTRANSFEROFEXISTINGAPPROPRIATIONS
FOR POST-FIRE WATERSHED RESTORATIONTREATMENTSANDOPERATIONALCOSTSASSOCIATED
WITH TREATING FIRE-IMPACTEDWATERSUPPLIES
ORDINANCE NO.047,2021
OF THE COUNCIL OF THECITYOFFORTCOLLINS
APPROPRIATING PRIOR YEAR RESERVESINTHELIGHTANDPOWERFUND
FOR ELECTRIC UTILITIES CUSTOMERPAYMENTASSISTANCE
ORDINANCE NO-048,2021
OF THE COUNCIL OF THECITYOFPORTCOLLINS
MAKING VARIOUS AMENDMENTSTOTHECITYOFFORTCOLLINSLANDUSECODE
ORDINANCE NO.049,2021OFTHECOUNCILOFTH.ECITYOFFORTCOLLINS
REPEALING AND REENACTINGCHAPTER2,ARTICLE III OF THECODEOFTHECITYOFFORTCOLLINSRELATINGTOBOARDSANDCOMMISSIONS
ORDINANCE NO-50.2021
OF THE COUNCIL OF THECITYOFFORTCOLLINSAMENDINGCHAPTER22OFTHECODEOFTHECITYOFFORT
COLLINS TO ADD A NEW ARTICLE VCONCERNINGTHEESTABLISHMENTOFTOURISMIMPROVEMENTDISTRICTS
The full text of these ordinances con befoundathffp://fcgav.com/publlcnotlcesorbycallingtheCityClerk’s OffIce at
(970)221-6515.0004705249