Loading...
HomeMy WebLinkAboutordinance.council.015-93 . '~,:'-" I.. :1 ". .. !J;! \"'.. 1)\ " \.~;ooti ~f..'-"t"'.~ ..~.f) ~.TI~r' ORDINANCE NO. E (Series of 1993) AN ORDINANCE AUTIIORIZING THE ISSUANCE BY THE CITY OF ASPEN, COLORADO, OF ITS GENERAL OBUGATION HOUSING REFUNDING BONDS, SERIES 1993A, IN THE AGGREGATE PRINCIPAL AMOUNT OF $4,160,000 FOR THE PURPOSE OF PROVIDING FUNDS TO REFUND THE CITY'S OUTSTANDING GENERAL OBUGATION HOUSING BONDS, SERIES 1989A AND TO PAY ALL NECESSARY INCIDENTAL AND APPURTENANT COSTS AND EXPENSES IN CONNECTION THEREWITH; PRESCRIBING THE FORM OF SAID BONDS; PROVIDING FOR THE SALE OF SAID BONDS AND APPROVING A BOND PURCHASE AGREEMENT, A REGISTRATION AND PAYING AGENCY AGREEMENT AND AN ESCROW AGREEMENT; PROVIDING A PLEDGE OF THE FULL FAITH AND CREDIT OF THE CITY AS SECURITY FOR SAID BONDS; PROVIDING OTHER DETAILS IN CONNECTION WITH SAID BONDS; AND APPROVING THE FORM OF THE OFFICIAL STATEMENT. WHEREAS, the City of Aspen, in the County of Pitkin and State of Colorado (the "City"), is a municipal corporation duly organized and existing as a home rule city pursuant to Article XX, Section 6 of the Constitution of the State of Colorado and the home rule charter of the City (the "Charter"); and WHEREAS, a portion of Section 10.3 of the Charter provides in part as follows: No bonds or other evidence of indebtedness payable in whole or in part from the proceeds of general property taxes or to which the full faith and credit of the City are pledged, shall be issued, except in pursuance of an ordinance, nor until the question of their issuance shall, at a special or general election, be submitted to a vote of the electors and approved by a majority of those voting on the question; qualified electors of the City shall mean those duly qualified to vote at a general or special election in the City of Aspen . . . ; and 02/4253.2 '.' ',: '\1, ~'" i~" A. ~\." \i" WHEREAS, Section 10.4 of the Charter provides in relevant part as follows: , The City shall not become indebted for any purpose or in any manner in an amount which, including existing indebtedness, shall exceed twenty (20) percent of the assessed valuation of the taxable property within the City, as shown by the last preceding assessment for City purposes; provided, however, that in determining the limitation of the City's power to incur indebtedness there shall not be included bonds issued for the acquisition or extension of a water system or public utilities; or bonds or other obligations issued for the acquisition or extension of enterprises, works or ways from which the City will derive a revenue in accordance with Section 10.5 of this article. ; and WHEREAS, Section 10.6 of the Charter provides as follows: The council may authorize, by ordinance, without an election, issuance of refunding bonds or other like securities for the purpose of refunding and providing for the payment of the outstanding bonds or other like securities of the City of the same nature, or in advance of maturity by means of an escrow or otherwise. ; and WHEREAS, in accordance with Sections 10.3 of the Charter, the question of issuing not to exceed $4,600,000 of general obligation bonds for the renovation and expansion of that property formerly known as the "Red Roof Inn" located at 22475 State Highway 82 in the City of Aspen, such facility to be leased to the Aspen/Pitkin Housing Authority, and for the reimbursement of capital expenditures previously incurred by the City with respect thereto was approved by the electors of the City at the City's general election on May 2, 1989; and WHEREAS, pursuant to such authorization, the City has previously issued its General Obligation Housing Bonds, Series 1989A in the aggregate principal amount of $4,600,000 (the "Refunded Bonds"), of which $4,215,000 remains outstanding; and 02f4253.2 2 I. \~ .' I.ie' w \~ ,eN ><I", ..- -. WHEREAS, in accordance with the authority above granted, the City Council hereby determines to issue its General Obligation Housing Refunding Bonds, Series 1993A (the "Bonds"), in the principal amount of $4,160,000 pursuant to the Charter, for the purpose of providing funds to refund the Refunded Bonds and to pay all necessary incidental and appurtenant costs and expenses in connection therewith; and WHEREAS, the Bonds shall constitute general obligation bonds and shall be secured by a pledge of the full faith and credit of the City; and WHEREAS, the City Council determines to issue the Bonds pursuant to the Charter; and WHEREAS, it is now necessary by ordinance to authorize the issuance, sale and delivery of the Bonds, and to provide details of and the security for the Bonds. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO THAT: Section 1. Definitions. In addition to terms otherwise defmed herein, the following terms shall have the following meanings, as used herein: (a) "Bond Fund" shall mean the fund by that name created pursuant to Section 15 hereof. (b) "Bond Purchase A.greement" shall mean the Bond Purchase Agreement, dated April 12, 1993 between the City and the Underwriter. (c) "Escrow A.gent" shall mean Colorado National Bank, acting as escrow agent pursuant to the Escrow Agreement. (d) "Escrow Agreement" shall mean the Escrow Agreement, dated as of April 15, 1993, between the City and the Escrow Agent as amended. 0214253.2 3 '.\.. . ~.. (\e. ~ ~\ '(;'- . (e) "Paying Agency AgreemenJ" shall mean the Registration and Paying Agency Agreement, dated as of April 15, 1993, between the City and the Paying Agent as amended. (f) "Paying AgenJ" shall mean Colorado National Bank, or any successor paying agent appointed by the City, acting as, among other things, paying agent, registrar and authenticating agent under this Ordinance. (g) "Record Date" shall mean the May 15 or November 15 (whether or not a business day) prior to each interest payment date with respect to the Bonds. (h) "Registered Owner" shall mean any person or persons in whose name or names a Bond shall be registered on the registration books of the City maintained by the Paying Agent. (i) "Tax Code" shall mean the Internal Revenue Code of 1986, as amended and any Income Tax Regulations promulgated thereunder. G) "Tax Letter of Instructions" shall mean the Tax Letter of Instructions, dated the date of delivery of the Bonds, delivered by Kutak Rock to the City, as the same may be superseded or amended. (k) "Underwriter" shall mean George K. Baum & Company. Section 2. AuJhorizPJion of Bonds. For the purpose of providing funds for the refunding of the Refunded Bonds and paying all necessary incidental and appurtenant costs and expenses in connection therewith, the City shall issue its "General Obligation Housing Refunding Bonds, Series 1993A," in the aggregate principal amount of $4,160,000. The Bonds shall be general obligation bonds of the City, and the principal of and interest on the Bonds shall be 02/4253.2 4 . payable from and be secured by a pledge of the full faith and credit of the City, as more particularly hereinafter set forth. Section 3. Bond Details. (a) The Bonds shall be issued as fully registered bonds without coupons in the denominations of $5,000 and any integral multiple thereof. (b) The Bonds shall be dated April 15, 1993, and shall bear interest from their date; provided that ifinterest on the Bonds shall be in default, Bonds issued in exchange for Bonds surrendered for transfer or exchange shall bear interest from the date to which interest has been paid in full on the Bonds surrendered or if no interest has been paid thereon, then from April 15, 1993. Interest on the Bonds shall be payable on June 1 and December 1 of each year, commencing December 1, 1993. *e. (" " '" (c) The Bonds shall be consecutively numbered, shall mature on the 1st day of each December in the principal amounts and years, and shall bear interest at the rates per annum, as shown in the following schedule: Maturity (December 1) Principal Amount Interest Ra!I< &.' ~, im _" '.-\~ 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 200S $ 200,000 205,000 215,000 225,000 235,000 245,000 255,000 270,000 280,000 295,000 310,000 330,000 1,095,000 2.900 3.650 4.000 4.300 4.500 4.750 4.900 5.000 5.150 5.250 5.350 5.450 5.500 02/4253.2 5 tit'. y ~\ e"'.". ", ~" I.' I,~ ," ~ (d) If upon presentation of a Bond to the Paying Agent at maturity, payment of any Bond is not made as herein provided, interest shall continue to accrue thereon at the interest rate designated in the Bond until the principal thereof is paid in full. (e) Principal of the Bonds shall be payable in lawful money of the United States of America at the principal corporate trust office of the Paying Agent. Interest on the Bonds shall be payable by check or draft of the Paying Agent mailed on the interest payment date to the Registered Owners thereof as of the Record Date. Section 4. Paying Agent; Transfer and Exchange. The Paying Agent shall act as paying agent, bond registrar and authenticating agent hereunder for purposes of the Bonds unless the City shall designate and appoint a successor Paying Agent. The Paying Agent shall maintain on behalf of the City books for the purpose of registration and transfer of the Bonds, and such books shall specify the person entitled to the Bonds and the rights evidenced thereby, and all transfers of Bonds and the rights evidenced thereby. Bonds may be transferred or exchanged upon payment of a transfer fee, any tax or governmental charge required to be paid with respect to such transfer or exchange and any cost of typing or printing bonds in connection therewith, at the principal office of the Paying Agent. Bonds may be exchanged for a like aggregate principal amount of Bonds of other authorized denominations of the same maturity and interest rate. Upon surrender for transfer of any Bond, duly endorsed for transfer or accompanied by an assignment duly executed by the Registered Owner or his or her attorneys duly authorized in writing, the City shall execute and the Paying Agent shall authenticate and deliver in the name of the transferee or transferees a new Bond or Bonds of the same maturity and interest rate for a like aggregate principal amount. The person in whose name any Bond 02/4253.2 6 we.. \, \ <" @e' \;.... '"," W.'. ~' \\~,~ shall be registered shall be deemed and regarded as the absolute owner thereof for all purposes, whether or not payment on any Bond shall be overdue, and neither the City nor any Paying Agent shall be affected by any notice to the contrary. Section 5. Redemption. The Bonds maturing on and after December 1, 2004 shall be callable for redemption at the option of the City, in whole or in part, and if in part in such order of maturities as the City shall determine and by lot within a maturity in such manner as the Paying Agent may determine (giving proportionate weight to Bonds in denominations larger than $5,000) on December 1, 2003, and on any date thereafter, at redemption prices (expressed as a percentage of principal amount) plus accrued interest to the redemption date as follows: Redemption Date Redemption Price December 1, 2003 through November 30, 2004 December 1, 2004 through November 30,2005 December 1, 2005 and thereafter 101 % 100'/2 100 The Bonds maturing on December 1, 2008 shall be subject to mandatory sinking fund redemption, prior to maturity, in part, by lot in such manner as the Paying Agent shall determine, at a price equal to the par amount of the Bonds to be redeemed plus accrued interest to the date of redemption, on the following dates and in the following amounts: Sinking Fund Redemption Date (December 1) Princioal Amount 2006 2007 2008* $345,000 365,000 385,000 *Final maturity 02/42.53.2 7 '.i. % <::. ~ .. ~_.. , ~, On or before the 30th day prior to each sinking fund redemption date, the Paying Agent shall proceed to select the Bonds for redemption on the next December 1, and give notice of such call. At its option, to be exercised on or before the 60th day next preceding any such sinking fund redemption date, the City may (a) deliver to the Paying Agent for cancellation, Bonds in any aggregate principal amount desired, and (b) receive a credit in respect of its sinking fund redemption obligation for any such Bonds which prior to said date have been redeemed (otherwise than through the operation of the sinking fund) and cancelled by the Paying Agent and not theretofore applied as a credit against any sinking fund redemption obligation. Each Bond so delivered or previously redeemed shall be credited by the Paying Agent at the principal amount thereof on the obligation of the City on such sinking fund redemption date and the principal amount of Bonds to be redeemed by operation of such sinking fund on such date shall be ac<;ordingly reduced. Notice of any redemption of Bonds shall be given by the Paying Agent in the name of the City by sending a copy of such notice by certified or registered fIrst-class, postage prepaid mail, at least thirty (30) days prior to the redemption date, to the Registered Owner of each of the Bonds being redeemed. Such notice shall specify the number or numbers of the Bonds so to be redeemed (if redemption shall be in part) and the redemption date. If any of the Bonds shall have been duly called for redemption and if, on or before the redemption date, there shall have been deposited with the Paying Agent in accordance with this Ordinance funds sufficient to pay the redemption price of such Bonds at the redemption date, then said Bonds shall become due and payable at such redemption date, and from and after such date interest will cease to 02/4253.2 8 . ~~e..' , Cc .'.... x \ " accrue thereon. Any Bond redeemed prior to its maturity by call for prior redemption or otherwise shall not be reissued and shall be cancelled. Section 6. Execution of Bonds. The Bonds shall be executed in the name and on behalf of the City with the manual or facsimile signature of the Mayor or Mayor Pro-Tern, shall bear a manual or facsimile of the seal of the City and shall be attested by the manual or facsimile signature of the City Clerk or Deputy or Assistant City Clerk. Should any officer w hose manual or facsimile signature appears on the Bonds cease to be such officer before delivery of any Bond, such manual or facsimile signature shall nevertheless be valid and sufficient for all purposes. The Mayor or Mayor Pro-Tem and the City Clerk or Deputy or Assistant City Clerk are hereby authorized and directed to prepare and to execute the Bonds in accordance with the requirements of this Ordinance. When the Bonds have been duly executed, the Paying Agent is authorized to, and shall, authenticate the Bonds as Paying Agent. No Bond shall be secured by this Ordinance or entitled to the benefit hereof, or shall be valid or obligatory for any purpose, unless the certificate of authentication of the Paying Agent, in substantially the form set forth in this Ordinance, has been duly executed by the Paying Agent. Such certificate of the Paying Agent upon any Bond shall be conclusive evidence and the only competent evidence that such Bond has been authenticated and delivered hereunder. The Paying Agent's certificate of authentication shall be deemed to have been duly executed by it if manually signed by an authorized representative of the Paying Agent, but it shall not be necessary that the same representative sign the certificate of authentication on all of the Bonds issued hereunder. 02/4253.2 9 ~.. 'q,~ '~I) l{i 'f "1. 1.1t... \*1 \;, Section 7. Delivery of the Bonds. Upon the original issuance, execution and authentication of the Bonds, the Paying Agent shall deliver the Bonds to the Underwriter upon receipt of the purchase price therefor. Section 8. Replacement of Bonds. If any outstanding Bond shall become lost, apparently destroyed or wrongfully taken, it may be reissued in the form and tenor of the lost, destroyed or taken bond upon the Registered Owner furnishing, to the satisfaction of the Paying Agent: (i) proof of ownership (which shall be shown by the registration books of the Paying Agent), (ll) proof of loss, destruction or theft, (ill) an indemnity to the City and the Paying Agent with respect to the Bond lost, destroyed or taken, and (iv) payment of the cost of preparing and issuing the new security, in which case the Paying Agent shall then .authenticate the Bonds required for reissuance. Section 9. Form of Bonds. The Bonds shall be in substantially the following form with such omissions, insertions, endorsements and variations as may be required by the circumstances: 02/4253.2 10 i-.... '\., ~-'. A '" '. ~., y '< (Form of Bond) [Front of Bond] UNITED STATES OF AMERICA CITY OF ASPEN, COLORADO GENERAL OBUGATION HOUSING REFUNDING BOND SERIES 1993A INTEREST RATE: ORIGINAL ISSUE DATE: CUSIP: April 15, 1993 MATURITY DATE: December 1, _ REGISTERED OWNER: PRINCIPAL SUM: DOLLARS The CITY OF ASPEN, in the County of Pitkin and State of Colorado (the "City"), for value received, hereby promises to pay to the order of the registered owner named above or registered assigns, on the maturity date stated above, the principal sum stated above, with interest thereon from the original issue date stated above, at the interest rate per annum stated above, payable on December 1, 1993, and semiannually thereafter on the 1st day of June and the 1st day of December of each year, the principal of this bond being payable upon the surrender of this bond to COLORADO NATIONAL BANK (together with its successors as such, the "Paying Agent") at the principal corporate trust offices of the Paying Agent in Denver, Colorado, and the interest hereon to be paid to such person as is the registered owner hereof as of the close of business at the office of the Paying Agent on the Record Date by check or draft of the Paying Agent mailed on the interest payment date to said registered owner. The Record Date is the May 15 or November 15 (whether or not a business day) preceding any 02/4253.2 11 \It e if.. \\",. interest payment date. All payments of principal and interest shall be made in lawful money of the United States of America. REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS BOND SET FORTH ON THE REVERSE HEREOF WHICH SHALL FOR ALL PURPOSES HA VETHE SAME EFFECT AS THOUGH FULLY SET FORTH HEREIN. This bond constitutes a general obligation of the City, and the principal of and interest on the Bonds, including this bond, are secured by and payable from the City's pledge of its full faith and credit as set forth in the Ordinance. It is hereby certified that all conditions, acts and things required by the constitution and laws of the State of Colorado, and the Charter and ordinances of the City, to exist, to happen and to be performed, precedent to and in the issuance of this bond, exist, have happened and have been performed, and that the Bonds do not exceed any limitations prescribed by said constitution or laws of the State of Colorado, the Charter or ordinances of the City. This bond shall not be entitled to any benefit under the Ordinance, or become valid or obligatory for any purpose, until the Paying Agent shall have signed the certificate of authentication hereon. 02/4253.2 12 lA. I' If It %, """" eli.'. \\ \~."\, IN WITNESS WHEREOF, the City of Aspen, Colorado, has caused this bond to be signed with the manual or facsimile signature of its Mayor, sealed with a manual or facsimile of the impression of its seal, and attested with the manual or facsimile signature of its City Clerk. [MANUAL OR FACSIMILE SEAL] CITY OF ASPEN, COLORADO ATTEST: By (Manual or Facsimile Signature) Mayor By (Manual or Facsimile Signature) City Clerk [End of Front of Bond] 02/4253.2 13 e e,; "(( ,~- 'It &~" \~ .." [Back of Bond] This bond is one of an issue of bonds of the City designated General Obligation Housing Refunding Bonds, Series 1993A, issued in the principal amount of $4,160,000 (the "Bonds"). The Bonds are being issued by the City for the purpose of providing funds for the refunding of the City's General Obligation Housing Bonds, Series 1989A, and to pay all necessary, incidental and appurtenant costs in connection therewith, pursuant to and in full conformity with the constitution and laws of the State of Colorado, the Charter of the City of Aspen, Colorado (the "Charter"), and an ordinance duly passed and adopted by the City prior to the issuance hereof (the "Ordinance"). The Bonds maturing on and after December 1, 2004 are callable for redemption at the option of the City, in whole or in part in such order of maturities as the City shall determine and by lot within a maturity, on December 1, 2003, and on any date thereafter, at the redemption prices (expressed as a percentage of principal amount) plus accrued interest to the redemption date as follows: Redemption Date Redemption Price December 1, 2005 through November 30, 2004 December 1, 2004 through November 30, 2005 December 1, 2005 and thereafter 101 % 1001/2 100 The Bonds maturing on December, 2008 are subject to mandatory sinking fund redemptions, prior to maturity, in part, by lot in such manner as the Paying Agent shall determine, at a price equal to the par amount of the Bonds to be redeemed plus accrued interest to the date of redemption at the times and in the amounts provided in the Ordinance. 02/4253.2 14 .. I. tit .' S \'\ . \< On or before the 30th day prior to each sinking fund redemption date, the Paying Agent shall proceed to select the Bonds for redemption from such sinking fund maturing on the next December 1, and give notice of such call. At its option, to be exercised on or before the 60th day next preceding any such sinking fund redemption date, the City may (a) deliver to the Paying Agent for cancellation, Bonds in any aggregate principal amount desired, and (b) receive a credit in respect of its sinking fund redemption obligation for any Bonds which prior to said date have been redeemed (otherwise than through the operation of the sinking fund) and cancelled by the Paying Agent and not theretofore applied as a credit against any sinking fund redemption obligation. Each Bond so delivered or previously redeemed shall be credited by the Paying Agent at the principal amount thereof on the obligation of the City on such sinking fund redemption date, and the principal amount of Bonds to be redeemed by operation of such sinking fund on such date shall be accordingly reduced. Notice of any redemption will be given by the Paying Agent in the name. of the City by sending a copy of such notice by certified or registered frrst-class, postage prepaid mail, at least thirty (30) days prior to the redemption date specified in such notice, to the registered owners of each of the Bonds being redeemed. Such notice will specify the number or numbers of the Bonds so to be redeemed and the redemption date. If this bond shall have been duly called for redemption and if on or before the redemption date there shall have been deposited with the Paying Agent, in accordance with the Ordinance, funds sufficient to pay the redemption price of this bond at the redemption date, then this bond shall become due and payable at such redemption date, and interest hereon shall cease to accrue after the redemption date. 02/4253.2 15 -.' ~. 'e. ~ '\::". e' , ~" This bond may be transferred or exchanged at the principal corporate trust office of the Paying Agent in Denver, Colorado, but only in the manner, subject to the limitations and upon payment of the charges provided in the Ordinance (including any tax. or governmental charge required to be paid with respect thereto and any cost of printing bonds in connection therewith), and upon surrender and cancellation of this bond. Upon surrender for any transfer, duly endorsed for transfer or accompanied by an assignment duly executed by the registered owner hereof or his or her attorneys duly authorized in writing, a new registered Bond or Bonds of the same maturity and interest rate and of authorized denomination or denominations ($5,000 and integral multiples thereof) for the same aggregate principal amount will be issued to the transferee in exchange therefor, subject to the provisions of the Ordinance. In addition, subject to the provisions of the Ordinance, this bond may be exchanged for a like aggregate principal amount of Bonds of other authorized denominations of the same maturity and interest rate. Any Bond issued upon transfer or exchange shall bear interest from the date as described on the face of this bond, unless interest thereon shall be in default, in which case interest shall accrue from the last interest payment date to which interest has been paid, or if no interest has been paid, from the original issue date. The City and any Paying Agent may deem and treat the registered owner hereof as the absolute owner hereof (whether or not payment on this bond shall be overdue) for the purpose of receiving payment of or on account of principal hereof and interest due hereon and for all other purposes, and neither the City nor any Paying Agent shall be affected by any notice to the contrary. 02/4253.2 16 ~-" . ~e\ Ii, ''"< e" ~, ~.~ (Form of Paying Agent's Certificate of Authentication) Date of Authentication: This bond is one of the Bonds described in the within mentioned Ordinance. COLORADO NATIONAL BANK By Authorized Representative (End of Form of Paying Agent's Certificate of Authentication) (Form of Assignment) FOR VALUE RECEIVED, , the undersigned, hereby sells, assigns and transfers unto (Tax Identification or Social Security No. ) the within bond and all rights thereunder, and hereby irrevocably constitutes and appoints attorney to transfer the within bond 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 upon the face of the within bond in every particular, without alteration or enlargement or any change whatever. (End of Form of Bond) [Form of Approving Opinion of Kutak Rock, Bond Counsel, may be printed' on the Bonds, including a certification by the City Clerk.] 02f4253.2 17 4_. y" "z", eJ._ %\ ';\;c, leI ~ ~, Section 10. Sale; otfidi;d StoJement. The Bonds, when executed as provided by law, shall be delivered to the Underwriter. The Bonds shall be sold to the Underwriter at a price of $4,073,070.65 (representing the par amount of the Bonds, less an original issue discount of $41,169.35 and less an underwriting discount of $45,760.(0), plus accrued interest, ifany, from April 15, 1993 to the date of delivery thereof. Such Sale of the Bonds is hereby found to be to the best advantage of the City and is hereby approved, subject to the Bond Purchase Agreement; The proceeds of the Bonds shall be used exclusively for payment of the cost of refunding the Refunded Bonds and to pay all necessary incidental and appurtenant costs and expenses incurred in connection therewith. Neither the Underwriter nor the subsequent Registered Owner or Registered Owners of any of the Bonds shall be responsible for the application or dispoSal of the funds derived from the Sale thereof by the City or any of its officers. The issuance of the Bonds by the City shall constitute a warranty by and on behalf of the City, for the benefit of each and every Registered Owner of the Bonds, that the Bonds have been issued for a valuable consideration in full conformity with law. The Preliminary Official Statement relating to the Bonds is hereby approved and the use thereof by the Underwriter is hereby approved. The Mayor and Mayor Pro-Tem are authorized and directed to execute and deliver a final Official Statement in substantially the form of the Preliminary Official Statement, but with such changes therein as shall be deemed necessary, within seven business days from the date of execution and delivery of the Bond Purchase Agreement. 02/4253.2 18 'f_.. ~ ,\ 'Z. I_I.e. \\ ''''" -. ~. .- Section 11. Security for the Bonds. The Bonds constitute general obligations of the City. The full faith and credit of the City are hereby pledged as security for the payment of the principal of, premium, if any, and interest on the Bonds. It shall be the duty of the Council, annually, at the time and in the manner provided by law for levying other City taxes, if such action shall be necessary to effectuate the provisions of this Ordinance, to ratify and carry out the provisions hereof with reference to the levying and collection of taxes; and the Council shall require the proper officers of and for the City to levy, extend and collect such taxes in the manner provided by law for the purpose of depositing moneys into the Bond Fund for the payment of the principal of the Bonds and interest thereon, and any prior redemption premiums due in connection therewith, and such taxes, when collected, shall be kept for and applied! only to the payment of the interest and principal of, and any prior redemption premiums due in connection with the Bonds as hereinbefore specified; provided, however, that nothing in this Ordinance shall be so construed as to prevent the City from applying any other funds legally available to the payment of said interest and/or principal as the same, respectively, become due, and upon such payments the levies herein provided may thereupon to that extent be diminished. No statutory or constitutional provisions enacted after the issuance of the Bonds shall in any manner be construed as limiting or impairing the obligation of the City to levy such annual ad valorem taxes without limitation of rate or amount for the payment of the principal of and interest on the Bonds. Section 12. Disposition of the Bond Proceeds. The Bond proceeds shall be paid as follows: (a) Accrued interest shall be credited to the Bond Fund; 02/4253.2 19 ~"." g ~\~. e\.....~ k '\~ lit \{ '-\s;,,, (b) An amount equal to $4,047,104.82 shall be deposited into the Escrow Fund established pursuant to the Escrow Agreement; and (c) An amount equal to $25,965.83 shall be used to pay the costs of issuing the Bonds. Section 13. Investments. The proceeds of the Bonds shall be used exclusively for the purposes recited herein and in the Bonds; provided, however, thatall, or any proper portion of, the proceeds of the Bonds in the Bond Fund and other moneys therein may be invested in securities or obligations which are lawful investments for such fund of the City. All earnings, income, profits and losses with respect to each fund shall be retained in the Bond Fund. Section 14. CovenanJ Upon Deficiency in Bond Fund. In furtherance of said pledge of the full faith and credit of the City, it is hereby irrevocably covenanted and agreed that in the event that at any time while any of the Bonds remain outstanding the payments required to be made from the Bond Fund are not made in strict accordance with the terms thereof (unless other moneys sufficient to pay the principal of and interest on the Bonds when due shall be on deposit in the Bond Fund), the Council shall promptly transfer from the general funds of the City to the Bond Fund from moneys previously appropriated, and shall promptly pass and adopt supplemental or emergency appropriation ordinances or resolutions and make such allocations and deposits of moneys from general funds of the City to the Bond Fund. Thereafter said appropriations, allocations and deposits shall continue to be made in such amounts and with sufficient frequency to assure that the sums of money required to be deposited in the Bond Fund, together with other moneys on deposit in the Bond Fund, shall be sufficient to pay the principal of and interest on the Bonds when due. 0214253.2 20 . (. ~.'-'. 't: \1", Section 15. Bond Fund. There is hereby created and established by the City a separate special fund to be designated the "General Obligation Housing Refunding Bonds, Series 1993A Bond Fund." The City shall credit to the Bond Fund at least three business days prior to each interest payment date an amount equal to the principal of and interest on the Bonds coming due on such date. Moneys credited to the Bond Fund shall be used solely for such purposes. Section 16. Additional Tax Covenants. (a) The City covenants that it shall not use or permit the use of any proceeds of the Bonds or any other funds of the City from whatever source derived, directly or indirectly, to acquire any securities or obligations and shall not take or permit to be taken any other action or actions, which would cause any of the Bonds to be an "arbitrage bond" within the meaning of Section 148 of the Tax Code, or would otherwise cause the interest on the Bonds to be includible in gross income for federal income tax purposes. The City covenants that it shall at all times do and perform all acts and things permitted by law and which are necessary in order to assure that interest paid by the City on the Bonds shall, for purposes of federal income taxation, not be includible in gross income under the Tax Code or any other valid provision of law. (b) In particular, but without limitation, the City further represents, warrants and covenants to comply with the following restrictions of the Tax Code, unless it receives an opinion of nationally recognized bond counsel stating that such compliance is not necessary: 02/4253.2 21 t.... ~... '< lil._'.' it \~ '\,~ - fit. " -c. (i) Gross proceeds of the Bonds shall not be used in a manner which will cause the Bonds to be considered "private activity bonds" other than "qualified 501 (c)(3) bonds" within the meaning of the Tax Code. (ii) The Bonds are not and shall not become directly or indirectly "federally guaranteed." (iii) The City shall timely file Internal Revenue Form 8038-G which shall contain the information required to be filed pursuant to subsection 149( e) of the Tax Code. (iv) The City shall comply with the Tax Letter of Instructions delivered to it on the date of issue of the Bonds with respect to the application and investment of Bond proceeds. Section 17. Defeasance. The Bonds may be refunded at the discretion and by action of the Council, subject to provisions concerning their payment and any other contractual limitations contained in this Ordinance, as authorized and permitted by law. A Bond shall not be deemed to be outstanding hereunder if it shall have been paid and cancelled or if cash funds or direct general obligations of, or obligations the payment of the principal of and interest on which are unconditionally guaranteed by, the United States of America, or evidences of interest in any such obligations ("Governmental Obligations"), shall have been deposited in trust for the payment thereof. In computing the amount of the deposit described above, the City may include interest to be earned on the Governmental Obligations. Section 18. Approval of Bond Purchase Agreement. The Bond Purchase Agreement, in substantially the form presented to the Council, is hereby authorized and approved, and the 02/4253.2 22 I." '(!;, \.\" ~.l_' ~t t< ~.:..e ,v.. ,!-, .,- Mayor or Mayor Pro-Tem and the City Clerk or any Deputy or Assistant City Clerk are hereby directed to execute and deliver the Bond Purchase Agreement in substantially the form approved, but with such changes therein as shall be deemed necessary or desirable by the officers executing the same, their execution to be conclusive evidence of the City's approval of any changes from the form hereby approved. Section 19. Approval of Paying Agency Agreement. The Paying Agency Agreement, in substantially the form presented to the Council, is hereby authorized and approved, and the Mayor or Mayor Pro- Tem and the City Clerk or any Deputy or Assistant City Clerk are hereby directed to execute and deliver the Paying Agency Agreement in substantially the form approved, but with such changes therein as shall be deemed necessary or desirable by the officers executing the same, their execution to be conclusive evidence of the City's approval of any changes from the form hereby approved. Section 20. Approval of Escrow Agreement. The Escrow Agreement, in substantially the form presented to the Council, is hereby authorized and approved, and the Mayor or Mayor Pro- Tem and the City Clerk or any Deputy or Assistant City Clerk are hereby directed to execute and deliver the Escrow Agreement in substantially the form approved, but with. such changes therein as shall be deemed necessary or desirable by the officers executing the same, their execution to be conclusive evidence of the City's approval of any changes from the form hereby approved. Section 21. Miscelhmeous Documents. The Mayor or the Mayor Pro-Tem and the City Clerk or Deputy or Assistant City Clerk, are hereby authorized and directed to execute and 02/4253.2 23 .,i..... \" . ~.. ~., tSIl. \. deliver any and all closing documents necessary or desirable in connection with the issuance of the Bonds and the refunding of the Refunded Bonds. Section 22. Notice of Call and Redemption. Colorado National Bank, as paying agent for the Refunded Bonds, shall give notice of refunding, call and redemption of the Refunded Bonds in accordance with the Escrow Agreement and the provisions for notice of prior redemption contained in the ordinance authorizing the issuance of the Refunded Bonds. Section 23. Severability. If any provision of this Ordinance shall be held or deemed to be or shall, in fact, be illegal, inoperative or unenforceable, the same shall not affect any other provision or provisions hereof or render the same invalid, inoperative or unenforceable to any extent whatever. Section 24. Governing Law. This Ordinance will be governed by and construed in accordance with the laws of the State of Colorado. Section 25. Repeals. All ordinances, or parts thereof, in conflict with this Ordinance, are hereby repealed. After the Bonds have been issued, this Ordinance shall be and remain irrepealable until the Bonds and the interest thereon shall be fully paid, satisfied and discharged in the manner herein provided, or sufficient provision shall have been made for such payment, satisfaction and discharge. After any of the Bonds are issued, this Ordinance shall be and remain irrepealable until the Bonds and interest thereon shall be fully paid or provided for. Section 26. Records. A true copy of this Ordinance, as adopted by the Council of the City, shall be numbered and recorded, and its adoption and publication shall be authenticated by the signatures of the Mayor and City Clerk. 02/4253,2 24 '.'ii.' 'Y! itA '. '..It. " " INTRODUCED AND READ as provided by law by the City Council of the City of Aspen on the 22nd day of March 1993. [SEAL] Attest: By ~ vf~ By ~/~~ Mayor FINALLY adopted, passed and approved and ordered published as provided by law this 12th day of April 1993. [SEAL] Attest: By ~,~~ 02/4253.2 By rr- 13~- Mayor 25 a ". ~.: .\".. ,.< ~-i " i II J~\ - $4,160,000 City of Aspen, Colorado General Obligation Housing Refunding Bonds Series 1993A BOND PURCHASE AGREEMENT April 12, 1993 City of Aspen, Colorado Aspen City Hall 130 South Galena Street Aspen, CO 81611 Ladies and Gentlemen: On the basis of the representations, warranties and covenants contained in this Bond Purchase Agreement and upon the terms and conditions contained herein, the undersigned, George K. Baum & Company (the "Underwriter"), hereby offers to purchase $4,160,000 aggregate principal amount of General Obligation Housing Refunding Bonds, Series 1993A (the "Bonds") to be issued by the City of Aspen, Colorado (the "City"), a political subdivision of the State of Colorado duly organized and existing as a home rule city under the laws of the State of Colorado and the home rule charter (the "Charter") of the City. The Bonds are to be issued under and pursuant to and in accordance with provisions of the Charter, the constitution and laws of the State of Colorado, and an ordinance (the "Ordinance") fmally adopted by the City Council of the City on this date. The proceeds from the sale of the Bonds will be used for the purposes set forth in the Ordinance authorizing the issuance of the Bonds to refund the City's previously issued General Obligation Housing Bonds, Series 1989A, and to pay the costs of issuing the Bonds. The Bonds will constitute general obligations of the City and are secured by a pledge of the full faith and credit of the City. The Bonds shall be dated April 15, 1993, and shall bear interest payable on the dates and at the rates and shall mature as provided in the Ordinance. The Bonds are subject to optional and mandatory sinking fund redemption prior to maturity as provided in the Ordinance.. All capitalized terms used herein and not otherwise defmed shall have the meanings assigned to such terms in the Ordinance. 02/4332.1 e" m.' . ~, " . " ~.\.: \/ .,', ..- -- Section 1. REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS OF THE CITY. The City hereby represents and warrants to, and covenants with, the Underwriter as follows: (a) The City is a political subdivision of the State of Colorado constituting a home rule city created under and existing by virtue of the Charter and the laws of the State. (b) The City is authorized (i) to issue the Bonds to refund the City's previously issued General Obligation Housing Bonds, Series 1989A and to pay the costs of issuing the Bonds, (ii) to adopt the Ordinance, (ill) to execute and deliver this Bond Purchase Agreement, the Registrar and Paying Agency Agreement, dated as of April 15 , 1993 (the "Paying Agency Agreement"), between the City and Colorado National Bank, as registrar and paying agent for the Bonds, the Escrow Agreement, dated as of April 15, 1993 (the "Escrow Agreement"), between the City and Colorado National Bank, as escrow agent, the Bonds and the hereinafter defmed Official Statement and (iv) to carry out and consummate all of the transactions contemplated by each of the aforesaid documents. (c) The information contained in the Preliminary Official Statement, dated March 31, 1993, distributed by the Underwriter in connection with the sale of the Bonds (the "Preliminary Official Statement") is, and at all times subsequent hereto will be, true and correct in all material respects and does not contain and, at all such times, will not contain any untrue statement of a material fact and does not omit and, at all such times, will not omit to state a material fact necessary to be stated therein in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. (d) As of the date of this Bond Purchase Agreement and (unless an event occurs requiring the Preliminary Official Statement or the fmal Official Statement distributed by the Underwriter in connection with the sale of the Bonds (the "Official Statement") to be. supplemented) at all times subsequent thereto during the period from the date of this Bond Purchase Agreement to and including the date which is twenty-five (25) days following the End of the Underwriting Period for the Bonds (as determined in accordance with Section 10 hereof) the information contained in the Official Statement does not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading. 02/4332.1 2 .'... tt \, tA... ~- ~.i.'. ,\; %', / 02/4332.1 --- -" ( e) If the Official Statement is supplemented or amended, at the time of each supplement or amendment thereto and (unless subsequently again supplemented or amended) at all times subsequent thereto during the period from the date of this Bond Purchase Agreement to and including the date which is twenty-five (25) days following the End of the Underwriting Period for the Bonds (as determined in accordance with Section 10 hereof) the information in the Official Statement will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements contained therein, in the light of the circumstances under which they were made, not misleading. (f) The City has duly authorized all actions required to be taken by it for (i) the issuance and sale of the Bonds upon the terms set forth herein and in the Official Statement and (ii) the execution, delivery and performance of this Bond Purchase Agreement, the Paying Agency Agreement, the Escrow Agreement, the Bonds, the Official Statement and any and all such other agreements and documents as may be required to be executed and delivered by the City in order to carry out, give effect to and consummate the transactions contemplated hereby and by the Official Statement and the Ordinance. (g) This Bond Purchase Agreement, the Paying Agency Agreement, the Escrow Agreement and the Ordinance constitute valid, legally binding and enforceable obligations of the City (subject in each case to usual equity principles and to any applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting the enforcement of creditors' rights generally from time to time in effect). The Bonds, when issued, authenticated, delivered and paid for as herein provided, will have been duly authorized, executed, authenticated, issued and delivered in accordance with the terms of the Ordinance. (h) There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body pending with respect to which service or notice on the City has been perfected or given or, to the knowledge of the City, threatened against or affecting the City (i) attempting to limit, enjoin or otherwise restrict or prevent the City from functioning, or (ii) wherein an unfavorable decision, ruling or fmding would materially and adversely affect (A) the existence or powers of the City; (B) the transactions contemplated hereby or by the Official Statement or the Ordinance; (C) the validity of the Bonds, this Bond Purchase Agreement, the Paying Agency Agreement, the Escrow Agreement, the Ordinance or any agreement or instrument to which the City is a party and which is used or contemplated for use in the consummation of the transactions contemplated hereby or by the Official Statement or the Ordinance; or (D) the exclusion from gross income of the interest on the Bonds for purposes of federal or State income taxation. 3 ~...' ~. e~. . ''{ .. '''' ~~ ,'..' \~' '~' , (i) The execution and delivery by the City of the Official Statement, this Bond Purchase Agreement, the Paying Agency Agreement, the Escrow Agreement and the Bonds, the adoption of the Ordinance and the execution and delivery of other documents contemplated hereby and by the Official Statement and the Ordinance, and the compliance with the provisions thereof, will not conflict with or constitute on the part of the City a violation of, breach of or default under (i) its Charter or any other governing instruments; (ll) any indenture, mortgage, lease, resolution, note agreement or other agreement or instrument to which the City is a party or by which the City is bound; or (ill) any constitutional provision or statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the City or any of its activities or property. 0) At or before the time of the City's acceptance hereof, the City shall furnish the Underwriter with a copy of the form of Official Statement of the City relating to the Bonds. The City hereby represents and warrants that it has deemed the Preliminary Official Statement to have been final as of its date within the meaning of Rule l5c2-l2(b)(4) ("Rule l5c2-12") under the Securities Exchange Act of 1934, as amended (the "Exchange Act") and then in effect. The City will deliver to the Underwriter as promptly as practicable but in no event later than seven business days after the date hereof, such number of copies of the final Official Statement as the Underwriter may reasonably require in order for the Underwriter to comply with the rules of the Municipal Securities Rulemaking Board ("MSRB") and the Exchange Act including, without limitation, Rule G-32 and Rule l5c2-l2. (k) The execution, delivery, distribution, use and delivery of the Official Statement have been duly authorized by the City. (1) Any certificate signed by an authorized officer of the City delivered to the Underwriter shall be deemed a representation and warranty by the City to the Underwriter as to the truth of the statements made therein. Section 2. PURCHASE, SALE AND DEUVERY OF THE BONDS. On the basis of, and in reliance upon, the representations, warranties, covenants and agreements of the City contained herein and in the other documents and agreements referred to herein and subject to the terms and conditions herein set forth, at the Closing Time the Underwriter agrees to purchase from the City and the City agrees to sell to the Underwriter the Bonds at a purchase price equal to $4,073,070.65 (representing the principal amount thereof, less an underwriting discount of $45,760.00 and less an original issue discount of $41,169,35), plus accrued interest from the date of the Bonds to the date of payment and delivery thereof. The Bonds will constitute general obligations of the City and are secured by a pledge of the full 02/4332.1 4 e' JJ'.. ~. l< .' \4. '<4 , '.. !w, l faith and credit of the City, and shall bear interest and mature, and shall be subject to redemption, as provided in the Ordinance. Payment for the Bonds shall be made in immediately available funds, payable to the order of the City on May 18, 1993, at the offices ofKutak Rock, Bond Counsel, in Denver, Colorado, or on or at such other date, place and/or time as shall be mutually agreed upon between the City and the Underwriter. Delivery of the Bonds shall be made at the time and date as aforesaid, at the offices of George K. Baum & Company, in Denver, Colorado, or at such other date, place and/or time as shall be agreed upon between the City and the Underwriter. The date of such delivery and payment is herein called the "Closing Date" and the time of such delivery and payment is herein called the "Closing Time. " Section 3. CONDillONS TO THE UNDERWRITER'S AND THE CITY'S OBLIGATIONS. The Underwriter's obligations hereunder shall be subject to the due performance by the City of its obligations and agreements to be performed hereunder at or prior to the Closing Time and to the accuracy of and compliance with the representations and warranties of the City contained herein as of the date hereof and as of the Closing Time and are also subject to the following conditions: (a) The Ordinance shall be in full force and effect and shall not have been amended from the form in which it was adopted, and the Bonds and this Bond Purchase Agreement shall have been duly authorized, executed and delivered in the form heretofore approved by the Underwriter with only such changes therein as the Underwriter and the City shall mutually agree upon. (b) At the Closing Time, the Underwriter shall also receive: (1) The opinion ofKutak Rock, Bond Counsel for the Bonds, dated the Closing Date, substantially in the form attached hereto as Exhibit A. (2) The supplemental opinion of Kutak Rock, Bond Counsel and Disclosure Counsel for the Bonds, dated the Closing Date and addressed to the Underwriter, in substantially the form attached hereto as Exhibit B. (3) The opinion of Edward Caswell, Esq., City Attorney, dated the Closing Date and addressed to the City, Bond Counsel and the Underwriter, in substantially the form attached hereto as Exhibit C. (4) A certificate of the City, dated the Closing Date, signed by a duly authorized officer of the City and in form and substance satisfactory to the CT2/4332.1 5 tA .. e' '. 1\(.. . 02f4332.1 Underwriter, to the effect that (i) no litigation or proceeding is pending with respect to which service or notice on the City has been perfected or given or, to their knowledge, threatened which would (A) restrain or enjoin the execution or delivery of the Bonds, this Bond Purchase Agreement, the Paying Agency Agreement, the Escrow Agreement or the Official Statement, or the adoption and performance of the Ordinance, (B) in any way contest or affect any authority for the validity, due authorization and execution of the Bonds, this Bond Purchase Agreement, the Paying Agency Agreement, the Escrow Agreement or the Official Statement or the adoption of and performance of the Ordinance, (C) limit, enjoin or prevent the City from making payments on the Bonds or (0) in any way contest the existence or powers of the City; (ii) the Official Statement as of its date and at all times through the date hereof, and the Official Statement as of its date and at all times through the Closing Date, does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading; (iii) the representations and warranties of the City contained herein and in the Ordinance are true and correct in all material respects as of the Closing Date, as if made on the Closing Date; and (iv) none of the proceedings or authority for the execution and delivery of the Bonds, this Bond Purchase Agreement, the Paying Agency Agreement or the Escrow Agreement have been modified, amended or repealed. (5) Executed copies of the Official Statement, the Paying Agency Agreement and the Escrow Agreement. (6) A certified copy of the Ordinance. (7) A specimen Bond. (8) A signed copy of the opinion of Grant Thornton, independent public accountants, on the general purpose fmancial statements which are attached as an Appendix to the Official Statement and written consent to the use thereof in the Official Statement. (9) Evidence satisfactory to the Underwriter that the Bonds have received the rating of "A" from Moody's Investors Service, and that such rating is in effect at Closing Time. (10) A certificate executed by the appropriate officer of the City, dated the Closing Date, to the effect that on the basis of facts and estimates set forth therein, (a) it is not expected that the proceeds of the Bonds will be used. in a manner that would cause the Bonds to be "arbitrage bonds" within the meaning 6 I...'. 11. '\' ''< .. W \\ '\<~ e". , " ~. of Section 148 of the Internal Revenue Code of 1986, as amended, and applicable regulations thereunder and (b) to the best of the knowledge and belief of said officer, such expectations are reasonable. (11) Such additional certificates, proceedings, approvals, 8038-G's, instruments and other documents as counsel for the Underwriter or Bond Counsel may reasonably request to evidence compliance by the City with legal requirements, the truth and accuracy, as of the Closing Time, of the representations of the City, herein contained and the due performance or satisfaction by the City, at or prior to such time of all agreements then required to be satisfied by the City. The obligations of the City hereunder are subject to the Underwriter's performance of its obligations hereunder. Section 4. THE UNDERWRITER'S RIGHT TO CANCEL. This Bond Purchase Agreement may be terminated by the Underwriter, without liability on the part of the Underwriter, by notifying the City, in writing or by telegram of its election to do so before the Closing Time, if at any time prior to the Closing Time: (a) A tentative decision with respect to legislation shall be reached by a committee of the House of Representatives or the Senate of the Congress of the United States or legislation shall be favorably reported by such a committee or be introduced, by amendment or otherwise, in, or be enacted by, the House of Representatives or the Senate, or be recommended to the Congress of the United States for passage by the President of the United States, or a decision by a court established under Article ill of the Constitution of the United States, or the Tax Court of the United States, shall be rendered or a ruling, regulation or order of the Treasury Department of the United States or the Internal Revenue Service shall be made or proposed, any of which having the purpose or effect of imposing federal income taxation, or any other event shall have occurred which results in the imposition of federal income taxation, upon revenues or other income of the general character to be received by the City or upon interest received on obligations of the general character of the Bonds, or the Bonds, which, in the Underwriter's opinion, materially adversely affect the market price of the Bonds; (b) Any legislation, ordinance, rule or regulation shall be introduced in, or be enacted by, any governmental body, department or agency in the State of Colorado, or a decision by any court of competent jurisdiction within the State of Colorado, shall be rendered, which, in the Underwriter's opinion, materially adversely affects the market price of the Bonds; 02f4332.1 7 tJ.... ~c -, ~.. "\'.. - 02/4332.1 (c) Legislation shall be introduced, by amendment or otherwise, in, or be enacted by the House of Representatives or the Senate of the Congress of the United States, or a decision by a court of the United States shall be rendered, or a stop order, ruling, regulation or official statement by, or on behalf of, the Securities and Exchange Commission or other governmental agency having jurisdiction of the subject matter shall be made or proposed, to the effect that the issuance, offering or sale of obligations of the general character of the Bonds, or the Bonds, as contemplated hereby or by the Official Statement, is or would be in violation of any provision of the Securities Act of 1933, as amended and as then in effect, or the Securities Exchange Act of 1934, as amended and as then in effect, or the Trust Indenture Act of 1939, as amended and as then in effect, or with the purpose or effect of otherwise prohibiting the issuance, offering or sale of obligations of the general character of the Bonds, or the Bonds, as contemplated hereby or by the Official Statement; . (d) Any event shall have occurred and not been corrected, or information become known, which, in the Underwriter's opinion, makes untrue, incorrect or misleading in any material respect any statement or information contained in the Official Statement as originally circulated, or has the effect that the Official Statement as originally circulated contains an untrue or misleading statement of a material fact or omits to state a material fact necessary to be stated therein in order to make the statements made therein, in light of the circumstances under which they were made, not misleading; (e) Additional material restrictions not in force as of the date hereof shall have been imposed upon trading in securities generally by any governmental authority Or by any national securities exchange; (f) The New York Stock Exchange or any other national securities exchange, or any governmental authority, shall impose, as to the Bonds, or obligations of the general character of the Bonds, any material restrictions not now in force, or increase materially those now in force, with respect to the extension of credit by, or the charge to the net capital requirements of, the Underwriter; (g) A general banking moratorium shall have been established by Colorado or New York authorities; (h) A material default not known by the Underwriter at the time of execution of this Bond Purchase Agreement shall have occurred with respect to the obligations of, or proceedings have been instituted under the federal bankruptcy laws or any similar state laws by or against, any state of the United States or any city located in the United States having a population in excess of one million persons or any entity issuing obligations on 8 e e (. ., behalf of such a city or state and which default or proceedings, in the Underwriter's opinion, materially adversely affects the market price of the Bonds; (i) A war involving the United States shall have been declared, or any conflict involving the armed forces of the United States shall have escalated, or any other national emergency relating to the effective operation of government or the financial community shall have occurred, which in the Underwriter's opinion, materially adversely affects the market price of the Bonds; (j) The City shall fail to deliver Official Statement to the Underwriter as provided in Section l(j) hereof; provided, however, that the Underwriter may not terminate its obligations hereunder as a result of the failure of the City to deliver such Official Statement unless such failure materially affects the Underwriter's marketing and sale of the Bonds or subjects the Underwriter to compliance infractions under the Securities and Exchange Commission or the MSRB delivery requirements. Section 5. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. After the Closing Date, the representations and agreements of the City and the Underwriter shall remain operative and in full force and effect, regardless of any investigations made by or on behalf of the Underwriter, and shall survive delivery of the Bonds to the Underwriter. Section 6. PAYMENT OF EXPENSES. The City agrees to pay all fees, expenses and costs associated with the issuance and sale of the Bonds either from its own funds or out of the proceeds of the Bonds, if issued. The fees, expenses and costs associated with the issuance and sale of the Bonds include, without limitation, the fees and disbursements of Kulak Rock, Bond Counsel; fees and expenses of the City; accounting fees; the fees of Grant Thornton in connection with the work performed to deliver its consent; fees of the rating agencies, travel expense, cost of federal funds and day loan expense, and the expenses and costs for the preparation, printing, photocopying, execution and delivery of the Bonds, the Official Statement, the Ordinance, this Bond Purchase Agreelllent, the Paying Agency Agreement, the Escrow Agreement and all other agreements and documents contemplated hereby. If the Bonds are not sold by the City to the Underwriter (unless through the default of the Underwriter in which event such fees, expenses and costs shall be paid by the Underwriter; provided that the failure of the Underwriter to buy the Bonds because the conditions set forth in this Bond Purchase Agreement have not been met or because of the occurrence of an event described in Section 4 hereof shall not be a default of the Underwriters), all fees, expenses and costs shall be paid by the City. 02/4332.1 9 ~-. ., -. '\" ~ ~. Section 7. USE OF OFFICIAL STATEMENT. The City hereby ratifies and confIrms the Underwriter's authority to use the Preliminary OffIcial Statement and authorizes the use of the fmal OffIcial Statement by the Underwriter in connection with the sale of the Bonds. Section 8. NOT/CE. Any notice or other communication to be given under this Bond Purchase Agreement may be given by mailing or delivering the same in writing addressed as follows: if to the City, at Municipal Building, 130 South Galena, Aspen, Colorado 81611, Attention: Director of Finance; and if to the Underwriter to George K. Baum & Company, Suite 2500, 717 Seventeenth Street, Denver, Colorado 80202, Attention: Mr. Steven Jeffers. Section 9. APPLICABLE LA W; NONASSIGNABILITY. This Bond Purchase Agreement shall be governed by the laws of the State of Colorado. This Bond Purchase Agreement shall not be assigned by the City. Section 10. DETERMINATION OF END OF UNDERWRITING PERIOD. For purposes of this Bond Purchase Agreement, the "End of the Underwriting Period" for the Bonds shall mean the earlier of (a) the Closing Date unless the City has been notified in writing to the contrary by the Underwriter on or prior to the Closing Date, or (b) the date on which the End of the Underwriting Period for the Bonds has occurred under Rule l5c2-12; provided, however, that the City shall be entitled to treat as the End of the Underwriting Period for the Bonds the date specified in the notice from the Underwriter stating the date which is the End of the Underwriting Period. The City may request from the Underwriter from time to time, and the Underwriter shall provide to the City upon such request, such information as may be reasonably required in order to determine whether the End of the Underwriting Period for the Bonds has occurred under Rule l5c2-12 with respect to the unsold balances of Bonds that were originally sold to the Underwriter for resale to the public and which are held by the Underwriter for resale to the public. If in the opinion of the Underwriter, for purposes of Rule l5c2-l2, the Underwriter does not retain for sale to the public any unsold balance of Bonds originally sold to the Underwriter pursuant to this Bond Purchase Agreement, the Underwriter shall promptly notify the City in writing that, in its opinion, the End of the Underwriting Period for the Bonds under Rule l5c2-l2 has occurred on a date which shall be set forth in such notification. 02/4332.1 10 ,It,. 'C\ "\. '.. . \W (~.I \ll._ Section 11. EXECUTION OF COUNTERPARTS. This Bond Purchase Agreement may be executed in several counterparts, each of which shall be regarded as an original and all of which shall constitute one and the same document. CITY OF ASPEN, COLORADO By Mayor C)L- (J~- GEORGE K. BAUM & COMPANY By Senior Vice President 02/4332.1 11 ~~.. !. 'e'" ~. "Il! ~-. \- -- ... Exhibit A May 18, 1993 $4,160,000 City of Aspen, Colorado General Obligation Housing Refunding Bonds Series 1993A Ladies and Gentlemen: We have acted as Bond Counsel in connection with, and have examined a certified copy of Ordinance No. _ (Series of 1993) (the "Ordinance"), fmally adopted by the City Council on April 12, 1993, relating to the issuance by the City of Aspen, Colorado (the "City") of its General Obligation Housing Refunding Bonds, Series 1993A, in the aggregate principal amount of $4, 160,000, dated April 15, 1993 (the "Bonds"), in the denominations of $5,000 each or any integral multiple thereof. Interest on the Bonds is payable semiannually on June 1 . and December I of each year, commencing December I, 1993. The Bonds will mature each December I, commencing December 1, 1994, and will bear interest as set forth in the Ordinance. The Bonds are subject to optional and mandatory sinking fund redemption prior to maturity as provided in the Ordinance. The Bonds have been issued under and pursuant to the home rule charter (the "Charter") of the City and the constitution and laws of the State of Colorado, and the Ordinance for the purpose of providing funds to (i) refund the City's General Obligation Housing Bonds, Series 1989A, presently outstanding in the aggregate principal amount of $4,215,000, and (ii) pay the costs of issuing the Bonds. We have examined a form of the executed Bonds and have found the same to have been executed in the manner required by law. In addition, we have examined certain certificates of the City, the opinion of the City's legal counsel dated the date hereof, and such other certificates, opinions and documents as we deemed relevant and necessary in rendering this opinion. 02/4332.1 A-I ~- ~. 'k~. (a ., (.... \; ~, From our examination it is our opinion that the Bonds have been legally and validly issued and constitute binding general obligations of the City enforceable in accordance with their terms. All taxable property within the City is subject to ad valorem taxation, without limitation as to rate or amount, to pay the principal of and interest on the Bonds, to the extent necessary funds are not available from other sources, all in the manner provided in the Ordinance. As security for such payment, there are irrevocably pledged a special fund designated as the Bond Fund. The City has covenanted in the Ordinance to pay into the aforesaid Bond Fund sums sufficient to pay when due the principal of and interest on the Bonds. The obligations of the City with respect to the Bonds, however, may be subject to general principles of equity which may permit the exercise in the future by the State of Colorado and its governmental bodies of the police power inherent in the sovereignty of the State, are subject to the provisions of applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights now or hereafter in effect, and are subject to the exercise by the United States of America of the powers delegated to it by the United States Constitution. We are further of the opinion that, under existing laws, regulations, rulings and judicial decisions, interest on the Bonds is excluded from gross income for federal and State of Colorado income tax purposes. Bond Counsel is further of the opinion that under existing laws, regulations, rulings and judicial decisions, interest on the Bonds is not included in the calculation of alternative minimum taxable income for purposes of the Colorado alternative minimum tax. The Code imposes various restrictions, conditions and requirements relating to the exclusion from gross income for federal income tax purposes of interest on obligations, such as the Bonds. The City has covenanted in the Ordinance and certain other documents to comply with certain guidelines and limitations designed to assure that interest on the Bonds will not become includable in gross income. Failure to comply with these covenants may result in interest on the Bonds being included in gross income from the date of issue of the Bonds. Our opinion assumes compliance with such covenants. Weare further of the opinion that interest on the Bonds is not a specific preference item for purposes of the alternative minimum tax provisions contained in the Code; however, for certain corporations interest on the Bonds is included in the "adjusted current earnings" (I.e., alternative minimum taxable income as adjusted for certain items, including those items that would be included in the calculation of a corporation's earnings and profits under Subchapter C of the Code) for taxable years beginning after 1989, and such corporations are required to include in the calculation of alternative minimum taxable income 75 % of the excess of each such corporation's adjusted current earnings over its alternative minimum taxable income (determined without regard to this adjustment and prior to reduction for certain net operating losses). The accrual or receipt of interest on the Bonds may otherwise affect the federal income tax liability of the recipient. The extent of these other tax consequences will depend upon the recipient's particular tax status or other items of income or deduction. We specifically express 02/4332.1 A-2 @..' \} \;< ~ . II...... ~. "\~ no opinion regarding any such consequences. Purchasers of the Bonds, particularly purchasers that are corporations (including S corporations, foreign corporations operating branches in the United States, and corporations subject to the environmental tax imposed by Section 59A of the Code), property or casualty insurance companies, banks, thrifts, or other fmancial institutions, or certain recipients of Social Security or Railroad Retirement benefits, are advised to consult their tax advisors as to the tax consequences of purchasing or holding the Bonds. The opinions expressed herein are based upon existing legislation as of the date of issuance and delivery of the Bonds, and we express no opinion as of any date subsequent hereto or with respect to any pending legislation. Very truly yours, 02f4332.1 A-3 ('..... 'c.;_... (a.' . "It.. "i "< Exhibit B May 18, 1993 George K. Baum & Company 717 Seventeenth Street Suite 2500 Denver, Colorado 80202 City of Aspen, Colorado Municipal Building 130 South Galena Aspen, Colorado 81611 $4,160,000 City of Aspen, Colorado General Obligation Housing Refunding Bonds Series 1993A Ladies and Gentlemen: We have acted as Bond Counsel and Disclosure Counsel in connection with the issuance and sale by the City of Aspen, Colorado (the "City"), of the above-captioned bonds (the "Bonds"), and, in that capacity, have examined executed counterparts of the Bond PurChase Agreement, dated April 12, 1993, between the City and the Underwriter, and the Ordinance of the City authorizing the issuance of the Bonds (the "Ordinance") duly adopted by the City Council of the City. We have also examined the originals or copies, certified or otherwise identified to our satisfaction, of certificates of the City and the opinion of counsel to the City, and such other documents, records and other instruments as we have deemed necessary or advisable for the purposes of this letter. As Disclosure Counsel, we have assisted in the preparation of the fmal Official Statement, dated April 12, 1993, distributed by the Underwriter in connection with the sale of the Bonds (the "Official Statement"). In that capacity, we have generally reviewed information furnished to us by, and have participated in conferences with, among others, representatives of the City, representatives of the Underwriter and representatives of counsel to the City. 02/4332.1 B-1 .- It " '\" tit.' (\ '!( "'" tA '~- In arriving at the conclusions hereinafter expressed, we are not expressing any opinion or view on, and are assuming and relying on, the validity, accuracy and sufficiency of the documents and certificates referred to above (including the accuracy of all factual matters represented and contained therein). We have assumed that all documents, certificates and opinions that we have reviewed, and the signatures thereon, are genuine. Weare not passing upon and do not assume any responsibility for the accuracy, completeness or fairness of any of the statements contained in the Official Statement and make no representation that we have independently verified the accuracy, completeness or fairness of any such statements, and we do not express a view or belief as to matters that might have been disclosed by independent investigation. However, in our capacity as bond and disclosure counsel, we have met and consulted with your representatives, the City and others, during which meetings and consultations the contents of the Official Statement and related matters were discussed. Based solely on our participation in the above-mentioned meetings and consultations and in reliance thereon and on the documents and certificates herein mentioned above, we advise you that during the course of our representation of the City as bond and disclosure counsel, no information came to the attention of attorneys in our finn in connection with such representation which caused us to believe that the Official Statement as of its date and as of the date of this opinion (except for any fmancial statements, forecasts, fmancial or statistical data, estimates, assumptions and expressions of opinions, as to which we express no opinion or view) contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. In our capacity as bond and disclosure counsel, we have rendered our opinion of even date herewith as to the validity and enforceability of the Bonds and the status of interest on the Bonds under federal income tax law, among other matters. You are authorized to rely on such opinions as if they were expressly addressed to you. This letter is not to be used, circulated, quoted or otherwise referred to or relied upon for any other purpose or by any other person. Our engagement by the City as bond and disclosure counsel terminates upon the date of this letter, and we undertake no obligation with respect to this matter after this date. Very truly yours, 02/4332.1 B-2 ~-. {., ~- lli. ,\, .' M,.' ,"' " '.'\, Exhibit C May 18, 1993 City of Aspen, Colorado Municipal Building 130 South Galena Aspen, Colorado 81611 Kutak Rock 2900 Manville Tower 717 Seventeenth Street Denver, Colorado 80202 George K. Baum & Company Suite 2500 717 Seventeenth Street Denver, Colorado 80202 $4,160,000 City of Aspen, Colorado General Obligation Housing Refunding Bonds Series 1993A Ladies and Gentlemen: As City Attorney for the City of Aspen, Colorado (the "City"), I am authorized to furnish opinions that may be required in connection with the issuance by the City of $4, 160,000 aggregate principal amount of its General Obligation Housing Refunding Revenue Bonds, Series 1993A (the "Bonds") issued pursuant to the home rule charter of the City, as amended (the "Charter"), the constitution and laws of the State of Colorado, and in accordance with provisions of Ordinance No. _ (Series of 1993) fmallyadopted and approved by the City Council of the City on April 12, 1993 (the "Ordinance"). In that capacity I have examined the following: (a) A certified copy of the Ordinance. 02/4332.1 C-l leI '>),;< e. b.. . '\): ,< 4.' @ \~- (b) The Charter. (c) The Registrar and Paying Agency Agreement, dated as of April 15, 1993 (the "Paying Agency Agreement"), between the City and Colorado National Bank, as registrar and paying agent for the Bonds. (d) The Escrow Agreement, dated as of April 15, 1993 (the "Escrow Agreement"), between the City and Colorado National Bank, as escrow agent. (e) The Bond Purchase Agreement, dated April 12, 1993 (the "Bond Purchase' Agreement"), between the City and George K. Baum & Company, as underwriter for the Bonds. (f) The Preliminary Official Statement, dated March 31,1993, distributed by the Underwriter in conn,ection with the sale of the Bonds and the final Official Statement, dated April 12, 1993, distributed by the Underwriter in connection with the sale of the Bonds (collectively, the "Official Statement"). (g) Such other public records, documents and proceedings as we have deemed relevant and necessary in rendering this opinion. Based on the foregoing, I am of the opinion that: I. The City is a home rule municipal corporation, duly organized and existing under the constitution and laws of the State of Colorado. 2. The Ordinance has been duly adopted by the City Council of the City and is in full force and effect as of the date hereof in the form in which fmally adopted and approved, and the Bond Purchase Agreement, the Paying Agency Agreement, the Escrow Agreement and the Ordinance constitute valid, legally binding and enforceable obligations of the City (subject in each case to usual equity principles and to any applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting the enforcement of creditors' rights generally from time to time in effect). 3. To the best of my knowledge, the issuance, execution and delivery of the Bonds by the City and the performance by the City of its obligations with respect to the Bonds will not constitute a default under or a conflict with any agreement or instrument to which the City is a party or by which the City is bound. 4. There is no action, suit, proceeding, inquiry or investigation at law or in equity or before or by any court, public board or body, pending or, to the best of my knowledge, threatened, wherein an unfavorable decision, ruling or fmding would adversely affect the 02/4332.1 C-2 (- e, ~. Ie..... I" l!; \'~. --- transactions contemplated by the Ordinance or the Official Statement or the validity or enforceability of the Bond Purchase Agreement, the Paying Agency Agreement, the Escrow Agreement and the Bonds. .. 5. The information contained in the Official Statement with respect to the City is, to the best of my knowledge, true and correct in all material respects and does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in light of the circumstances under which they were made, not misleading. Very truly yours, 02/4332.1 C-3 .- Ri.. \\: '~ ".' & \~,.. M.:' \~,. Q. REGISTRATION AND PAYING AGENCY AGREEMENT THIS REGISTRATION AND PAYING AGENCY AGREEMENT, dated as of April 15, 1993 (this "Paying Agency Agreement"), governs the appointment by the CITY OF ASPEN, COLORADO (the "City") of COLORADO NATIONAL BANK (the "Paying Agent"), as paying agent, registrar and authenticating agent for the City's $4,160,000 General Obligation Housing Refunding Bonds, Series 1993A (the "Bonds") issued pursuant to Ordinance No. _ (Series of 1993) of the City. 1. The Paying Agent shall act as agent of the City for the limited purpose of being paying agent, registrar and authenticating agent for the Bonds and shall not in such capacities be a trustee or other fiduciary for the owners of the Bonds. The Paying Agent, and its officers, directors and employees, may become the owner or owners of, or acquire any interest in, any Bonds with the same rights that it or they would have if it were not the paying agent, registrar and authenticating agent hereunder, may engage or be interested in any financial or other transactions with the City or any agents thereof, and may act on, or as depositary, trustee or agent for, any committee or body of owners of the Bonds or other obligations of the City or any agents thereof, as freely as if it were not the paying agent, registrar and authenticating agent hereunder. 2. On or prior to each date established for payment of principal, interest or premium, if any, on the Bonds (a "Due Date"), the City shall furnish funds to the Paying Agent in amounts sufficient to pay all amounts due. The Paying Agent shall have no duty to collect, or notify the City of, amounts due on the Bonds. The Paying Agent shall have no duty to make any payments prior to any Due Date nor until funds necessary to cover all payments due on the Due Date have been deposited with it. The Paying Agent shall never be required to advance its own funds for any payments in connection with the Bonds. 3. The Paying Agent shall not be obligated to segregate the funds held as paying agent or registrar unless otherwise required by law, and shall not be liable for payment of interest on any funds held in its capacity as paying agent or registrar. 4. The City shall furnish the .Paying Agent with a sufficient supply of blank Bonds and from time to time shall renew such supply when necessary upon the request of the Paying Agent. Blank Bonds shall be signed by authorized officers of the City and shall bear the seal of the City, or shall bear, to the extent permitted by law, the facsimile signature of such officers and the facsimile of said seal. 02/4470.1 fA. ~. . .l.. \ . ---- 5. The Paying Agent agrees to act as paying agent under the Ordinance. The Paying Agent shall perform all duties required of it under the Ordinance as Paying Agent, including its duties as paying agent, registrar and authenticating agent thereunder. 6. The Paying Agent shall make payment, exchange or registration of transfer (collectively "Transfer") of Bonds in accordance with the Ordinance. The Paying Agent reserves the right to refuse to Transfer Bonds until it is satisfied that the endorsement on the Bond is valid and genuine, and for that purpose it may require a guarantee of signature by a firm having membership in the Midwest, New York or American Stock Exchange or by a bank or trust company or finn approved by it. The Paying Agent also reserves the right to refuse to Transfer Bonds until it is satisfied that the requested Transfer is legally authorized, and it shall incur no' liability to the City for any liabilities arising from the refusal in good faith to make Transfer, which it, in its judgment, deems improper or unauthorized. The Paying Agent assumes no responsibility for determining whether or to what extent any Transfer made by it or other action taken by it may have a bearing on any exemption from the registration requirements of the Securities Act of 1933 as amended or any similar statute. 7. The Paying Agent shall issue new or duplicate Bonds in lieu of or on account of Bonds represented to have been lost, apparently destroyed or wrongfully taken, in accordance with the Ordinance. 8. The Paying Agent may Transfer Bonds registered in the name of or belonging to a deceased person without requiring the person requesting such Transfer to obtain letters of administration, letters testamentary, or instruments of assignment from the executors or administrators of the deceased, or other legal documents generally required, upon receiving indemnity satisfactory to the Paying Agent; and the Paying Agent is authorized to procure from a bonding company of its choice a blanket bond covering the transfer of securities without probate or administration running in favor of the Paying Agent, the City, and any other agents of the City, and to perform all acts necessary or desirable to assure that the Paying Agent and the City and other agents of the City will be indemnified on account of any such Transfer. 9. The Paying Agent shall treat the person in whose name any Bond is registered as the absolute owner of such Bond for the purpose of receiving payment of principal and interest on such Bond and for all other purposes whatsoever, whether or not such Bond be overdue, and the Paying Agent shall not be affected by any notice to the contrary. 10. Unless otherwise instructed, the Paying Agent shall destroy cancelled Bonds any time after payment and shall furnish to the City periodic destruction certificates. II. In the event the City receives any notice or order which limits or prohibits dealing in the securities for which the Paying Agent is paying agent, registrar or authenticating agent, 0214470.1 2 €.l \\ ~ I.. 'ii!, I...,. /," h\.... '1, t, ~~ , it shall immediately notify the Paying Agent of such notice or order and give a copy thereof to the Paying Agent. 12. The Paying Agent shall withhold any and all amounts from interest due owners of the Bonds as it may be required from time to time by any government regulations and shall prepare and me any necessary information returns with respect to all interest payments. 13. The Paying Agent shall be entitled to payments from the City of its fees for acting as paying agent, registrar and authenticating agent through December I, 2008, in accordance with the fee schedule attached hereto and thereafter as shall be agreed to by the City and the Paying Agent. All such fees shall be paid notwithstanding that the Bonds have been refunded or otherwise refinanced at the time the payment is due, so long as the Bonds shall not have actually been paid. The Paying Agent shall not have a lien on any funds deposited with it as paying agent for payment of its fees. 14. The Paying Agent shall not be liable for action taken, in good faith, in reliance upon advice from legal counsel and may rely and act upon signatures and documents which it believes to be genuine without liability. The Paying Agent shall be liable only for its own negligence, gross negligence or willful misconduct. 15. The Paying Agent may execute and exercise any of the rights or powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys, agents or employees, and the Paying Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorneys, agents or employees or for any loss to the City resulting from such neglect or misconduct, provided reasonable care shall have been exercised in the selection and continued employment thereof. 16. In the event of any conflict between this Paying Agency Agreement and the duties of the Paying Agent under the Ordinance, the provisions of the Ordinance shall control. 17. In any circumstances not covered specifically by the Ordinance or this Paying Agency Agreement, the Paying Agent shall act in accordance with its normal procedures in such matters, subject to the provisions of Section 14 hereof. 18. The Paying Agent may resign as paying agent, registrar and authenticating agent, or may be removed as such by the City on thirty days' prior written notice. In case of resignation the Paying Agent, or in the case or removal the City, shall pay for all costs and expenses relating thereto, including costs of giving notices and costs of forwarding or returning funds, Bonds or other documents. 19. After one (I) year from the earlier of the final maturity date of the Bonds or the redemption date of the last outstanding Bond, or upon the Paying Agent's resignation or 02f4470.1 3 ~.. - ~ '~" ,q..c'.e.. ~ ~- ~... ~t~~ ---- removal, the Paying Agent may return any unclaimed funds relating to the Bonds to the City and thereafter all of its obligation and duties with respect to the Bonds shall cease. 20. The terms and conditions of this Paying Agency Agreement may only be amended by written agreement between the City and the Paying Agent. 21. The City shall furnish or Cause to be furnished to the Paying Agent an original or certified copy of all documents relating to the Bonds which are reasonably requested by the Paying Agent. 22. This Paying Agency Agreement is executed in Colorado and shall be construed and enforced in accordance with the laws of Colorado. CITY OF ASPEN, COLORADO [SEAL] By Mayor ATTEST: By City Clerk Accepted by COLORADO NATIONAL BANK [SEAL] By Title: ATTEST: By Title: 02/4470.1 4 te .' ~ ;$.. l'x lit 'Z< Fee Schedule 02/4470.1 5 ".. ~, .. '\\" III.~..C." tl \\\" ~... \t\..,. ESCROW AGREEMENT Between CITY OF ASPEN, COLORADO And COLORADO NATIONAL BANK (Escrow Agent) Dated as of April 15, 1993 02/4480.1 ~_.. ", "'\' 1_. ''II' ..~c. \~ "'- ESCROW AGREEMENT THIS ESCROW AGREEMENT dated as of April 15, 1993 (this "Escrow Agreement"), is made and executed by and between the CITY OF ASPEN, COLORADO (the "City"), a home rule municipal corporation and a political subdivision of the State of Colorado, and COLORADO NATIONAL BANK located in Denver, Colorado (the "Escrow Agent"), a national banking association duly organized and existing under the laws of the United States of America, and having full and complete trust powers; WITNESSETH: The parties hereto recite and, in consideration of the mutual covenants and payments referred to and contained herein, covenant and agree as follows: 1. The City Council of the City has adopted that certain Ordinance No. _ (Series of 1993) on April 12, 1993 (the "Ordinance") in order to issue, under and pursuant to the Ordinance, $4,160,000 aggregate principal amount of "City of Aspen, Colorado, General Obligation Housing Refunding Bonds, Series 1993A" (the "Bonds"). The proceeds of the Bonds will be used to refund the City's General obligation Housing Bonds, Series 1989A previously issued by the City (the "Refunded Bonds"). 2. The City shall deposit with the Escrow Agent, in a special fund and separate trust account to be created with the Escrow Agent pursuant to the Ordinance and this Escrow Agreement and designated as the "City of Aspen, Colorado, General Obligation Housing Bonds, Series 1989A Escrow Fund" (the "Escrow Fund") an amount equal to $4,047,104.82 from the proceeds of the Bonds and $588,000.00 of moneys of the City. Moneys deposited in the Escrow Fund shall be used for the following purposes: (i) to purchase, through George K. Baum & Company, certain non-callable open market securities in the aggregate face amount of $ as described in Exhibit A to this Escrow Agreement at a cost (including accrued interest) of $ (the "Escrow Fund Securities") and (ii) to establish a beginning! cash balance in the amount of $ The Escrow Agent agrees, without the necessity of any further direction from the City, to use moneys on deposit in the Escrow Fund to purchase the Escrow Fund Securities in accordance with the preceding paragraph. The Escrow Fund Securities to be purchased shall mature on the dates, be of the aggregate face amounts and yield or bear interest at the rates set forth in Exhibit A attached hereto. 02/4480.1 ~.: ''\c. ~""'" '. .~..'.. '% '~" 3. Maturing principal of and interest on the Escrow Fund Securities, together with other moneys in the Escrow Fund, shall be held and applied by the Escrow Agent to pay the Refunded Bonds maturing through January 1, 1995 and to redeem the Refunded Bonds maturing on and after January 1, 1996 on January 1, 1995 at a redemption price (expressed as a percentage of principal amount) of 102 %, plus accrued interest to the date of redemption. The debt service schedule for the Refunded Bonds is set forth in Exhibit B attached hereto. The City hereby directs Colorado National Bank, as the present paying agent for the. Refunded Bonds, and Colorado National Bank hereby agrees to give notice of the refunding of the Refunded Bonds in accordance with the provisions of the ordinance authorizing the issuance of the Refunded Bonds to each registered owner of the Refunded Bonds. 4. Set forth as Exhibit C attached hereto is a copy of the report prepared by Jerry L. Lacy, independent certified public accountant, showing (a) the payments of the principal of and interest on the Escrow Fund Securities, (b) the total of the principal of and interest on the Refunded Bonds required to be paid in each year indicated, and (c) the cumulative balance in the Escrow Fund after each payment is made from the Escrow Fund. With the report, Jerry L. Lacy has delivered his opinion that, if the interest on the Escrow Fund Securities purchased and the principal thereof are paid as interest and principal become due, the proceeds from the collection of such interest and principal, together with the beginning cash balance, will be sufficient to permit the prompt payment of the Refunded Bonds as the same become due upon maturity or prior redemption in accordance with the provisions of paragraph 3 of this Escrow Agreement. 5. The Escrow Agent acknowledges the receipt of the amounts initially deposited in the Escrow Fund as specified in paragraph 2 above. The Escrow Agent shall hold the beginning cash balance and the Escrow Fund Securities in the Escrow Fund and shall collect and receive on behalf of the City all payments of principal and interest on the Escrow Fund Securities. Without the requirement of any action being taken by the City, the Escrow Agent agrees to remit, from the Escrow Fund to Colorado National Bank, as the paying agent for the Refunded Bonds, funds for the payment of the principal of and interest on the Refunded Bonds as provided in this Escrow Agreement. Such funds shall be forwarded to the paying agent for the Refunded Bonds in such a manner as to enable said paying agent to make punctual payments of the principal of and interest on the Refunded Bonds, as the same shall become due and payable to the registered owners thereof. After payment of the principal of and interest on all remaining outstanding Refunded Bonds, the Escrow Agent shall pay any remaining funds in the Escrow Fund to the City. 6. The Escrow Agent agrees that it will not reinvest any cash or redeem and reinvest the proceeds of the Escrow Fund Securities held in the Escrow Fund. 02/4480.1 2 '. i;\<, lIe. ~\ '~" ,(. 7. As full consideration for all services to be performed by the Escrow Agent under this Escrow Agreement, the City agrees to pay the Escrow Agent the sum of $ upon the execution of this Escrow Agreement, receipt of which amount is hereby acknowledged by the Escrow Agent. The Escrow Agent expressly waives any lien upon or claim against the moneys and securities in the Escrow Fund for its services under this Escrow Agreement. 8. On each January 1, commencing January 1, 1994, and on January 1, 1995, the date upon which all of the Refunded Bonds will be paid or redeemed, the Escrow Agent shall submit to the City a report covering all money it shall have received and all payments it shall have made or caused to be made hereunder as of such date. 9. The Escrow Agent shall hold the Escrow Fund Securities and money held in the Escrow Fund in a special trust fund and account separate and wholly segregated from all other funds and securities of the Escrow Agent, and shall never commingle such money or securities with other money or securities. To the extent not insured by the Federal Deposit Insurance Corporation, all uninvested money held at the time in the Escrow Fund shall be continuously secured by the deposit in a Federal Reserve Bank of direct obligations of the United States of America in a principal amount always not less than the total amount of such uninvested money. It is understood and agreed that the responsibility of the Escrow Agent under this Escrow Agreement is limited to the safekeeping and segregation of the money and securities held in such Escrow Fund, the collection of and accounting for the principal and interest payable with respect thereto, and the payment of the principal of, premium, if any, and interest on the Refunded Bonds to the paying agent thereof in accordance with the provisions of this Escrow Agreement. 10. This Escrow Agreement is made by the City for the benefit of the registered owners of the Refunded Bonds and is not revocable by the City, and the securities and other moneys held in the Escrow Fund and all income therefrom have been irrevocably appropriated for the payment of the Refunded Bonds in accordance with this Escrow Agreement; provided, however, that when the principal of and interest on all of the Refunded Bonds shall have been paid in full, and all amounts payable to the Escrow Agent hereunder have been paid in full, any amount which may remain on deposit in the Escrow Fund shall be paid to the General Fund of the City. 11. This Escrow Agreement shall be binding upon and shall inure to the benefit of the City and the Escrow Agent and their respective successors and assigns, In addition, this Esc;row Agreement shall constitute a third party beneficiary contract for the benefit of the registered owners of the Refunded Bonds. Said third party beneficiaries shall be entitled to enforce performance and observance by the City and the Escrow Agent of the respective agreements and covenants herein contained as fully and completely as if such third party beneficiaries were parties hereto. Any bank into which the Escrow Agent may be merged or with which it may be consolidated or any bank resulting from any merger or consolidation to which it shall be a 0214480.1 3 ~.%."'" "(.. e el IF ----- -- party or any bank to which it may sell or transfer all or substantially all of its corporate trust business shall, unless the City disapproves in writing,. be the successor agent without the execution of any document or the performance of any further act. In the event the City disapproves of the successor agent resulting from any of the events described above, the City shall immediately appoint any state or national bank within the State of Colorado which is a member of the Federal Deposit Insurance Corporation and which has trust powers to be the successor agent, whereupon such successor agent shall immediately succeed to the respective agreements and covenants hereunder. 12. The Escrow Agent shall immediately notify the City and the Underwriter by registered, first-class mail, postage prepaid, whenever, for any reason, the funds or accounts created pursuant to this Escrow Agreement, plus the Escrow Fund Securities therein and interest on said Escrow Fund Securities, as the same accrues, and the principal amount of any securities purchased and held in the Escrow Fund pursuant to the Escrow Agreement will be insufficient to pay the interest, principal of, and premium, if any, on the Refunded Bonds, as the same become due and payable in accordance with paragraph 3 hereof. The City shall, upon receipt of such notice, immediately deposit the amount of any such deficiency with the Escrow Agent for application in accordance with this Escrow Agreement. 13. The City shall have the right, at any time, to examine all the records of the Escrow Agent regarding the status of the funds or accounts created pursuant to this Escrow Agreement and the details of all income, investments, reinvestments, redemptions and withdrawals therefrom with respect to the funds or accounts created pursuant to this Escrow Agreement. . 14. The Escrow Agent shall be under no obligation to inquire into or be in anyway responsible for the performance or nonperformance by the City of any of the obligations of the City, or to protect any of the rights of the City under any bond resolution or any of the other contracts of the City with or franchises or privileges from any state, county, municipality or other governmental agency or with any corporation or individual; and the Escrow Agent shall not be liable for any act done or step taken or omitted by the Escrow Agent or any mistake of fact or law or for anything which the Escrow Agent may do or refrain from doing, except for its negligence or its default in the performance of any obligation imposed upon the Escrow Agent hereunder. The Escrow Agent shall not be responsible in any manner whatsoever for the recitals or statements contained herein, or in the Refunded Bonds or any proceedings taken in connection therewith. 15. If anyone or more of the covenants or agreements provided in this Escrow Agreement on the part of the City or the Escrow Agent to be performed should be determined by a court of competent jurisdiction to be contrary to law, such covenant or agreement shall be deemed and construed to be severable from the remaining covenants and agreements herein (Y'lJ4480.1 4 ~.' ~. . 'Z\ -'< e (It contained and shall in no way affect the validity of the remaining provisions of this Escrow Agreement. 16. This Escrow Agreement may be executed in several counterparts, all or any of which shall be regarded for all purposes as one original and shall constitute and be but one and the same instrument. This Escrow Agreement shall be governed by the laws of the State of Colorado, without regard to conflict of laws principles. 17. This Escrow Agreement shall terminate upon the payment of all of the principal of, premium, if any, and interest on the Refunded Bonds. 18. Time shall be of the essence in the performance of obligations from time to time imposed upon the Escrow Agent by this Escrow Agreement. 02/4480.1 5 .' i\! I...... ~< (It e IN WITNESS WHEREOF, the parties hereto have caused this instrument to be duly executed by their duly authorized officers as of the date first written above. [SEAL] CITY OF ASPEN, COLORADO By Attest: Mayor By City Clerk [SEAL] COLORADO NATIONAL BANK, as Escrow Agent Attest: By Authorized Officer By Authorized Officer 92/4480.1 6 ~.' \\~< e i.e ~'- "\~ EXHIBIT A DESCRIPTION OF ESCROW FUND SECURITIES The Escrow Fund Securities shall consist of the following United States Treasury Securities: Maturity Value 0214480.1 Maturity Date Cost 7 ell' \~'. \,' .~ b"c' "f.. \~ ..... '. Payment Date 0214480.1 EXHIBIT B REFUNDED BONDS MATURITY SCHEDULE Principal and Premium Interest 8 ~ .... , .",-f\<::. i. ~i '\~- lIe,. -, l\".. .';.. ,<.-. EXHIBIT C CPA VERIFICATION REPORT 02/4480.1 9