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HomeMy WebLinkAboutC10-074 First Amendment to Ground Lease AgreementAfter Recording Return To: Hogan & Hartson LLP 1200 17th Street, Suite 1500 Denver, CO 80202 Attention: Anastasia Khokhryakova FIRST AMENDMENT TO GROUND LEASE AGREEMENT FIRST AMENDMENT TO GROUND LEASE AGREEMENT dated as of March 1, 2010 (referred to herein as this "First Amendment"), between EAGLE COUNTY, COLORADO (the "County"), as ground lessor hereunder and EAGLE COUNTY JUSTICE CENTER FINANCING CORPORATION (the "Corporation"), as ground lessee hereunder. WITNESSETH: WHEREAS, the County and the Corporation entered into the Ground Lease Agreement dated as of September 1, 2008 (the "Original Ground Lease" and collectively with this First Amendment and any other amendment or supplement, the "Ground Lease"), pursuant to which the County leased to the Corporation the Site for the purpose of facilitating the financing of the costs of acquiring, constructing, otherwise improving and equipping the Addition to the Justice Center; WHEREAS, pursuant to the Lease Purchase Agreement dated as of September 1, 2008 (the "Original Lease") as supplemented by the First Supplemental Lease Purchase Agreement dated as of March 1, 2010 (the "First Supplemental Lease" and collectively with the Original Lease and any other amendment or supplement, the "Lease") between the Corporation, as lessor and the County, as lessee, the Corporation subleased the Site and leased the Addition to the County; WHEREAS, in order to finance the costs of acquiring, constructing, otherwise improving and equipping the Addition, the Corporation issued $21,300,000 aggregate principal amount of Certificates of Participation (Eagle County Justice Center Project), Series 2008 (the "Series 2008 Certificates") pursuant to the Mortgage and Indenture of Trust dated as of September 1, 2008 (as further defined in the Lease, the "Indenture") between the Corporation and Wells Fargo Bank, National Association, as trustee (the "Trustee"); WHEREAS, that part of the Addition abutting the Justice Center on its west side (Parcel A of the Site) and its south side (Parcel B of the Site) have been built (the "Completed Site"); WHEREAS, the Corporation intends to apply certain excess proceeds of the Series 2008 Certificates to finance the costs of additional improvements (the "Additional Project") to the Justice Center, such improvements to be located on a parcel described in Exhibit A attached i:ereto (the "Additional Site"), which Additional Site is owned by the County; WHEREAS, the County has determined that it is necessary and in the best interests of the County to amend the Original Ground Lease iu order to revise the legal description of the ~~oc - a~so~aiooooz i - aa3 i ~ i ~z C~o.a~t-4 Completed Site to conform to the as-built dimensions thereof and to add the Additional Site to the description of the Site; WHEREAS, as required by the Original Ground Lease and the Indenture, the Trustee has consented to this First Amendment and such consent is attached hereto as Exhibit B; NOW, THEREFORE, in consideration of the foregoing premises and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the County and the Corporation hereby agree as follows: Section 1. Definitions. All capitalized terms utilized in this First Amendment without definition shall have the meaning ascribed to them in the Lease. Section 2. Amendment. Exhibit A to the Original Ground Lease is hereby amended by revising the legal description of the Completed Site to conform to its as-built dimensions and by adding the legal description of the Additional Site and such Exhibit A is hereby replaced in its entirety with Exhibit A attached hereto. Section 3. County's Representation. All representations, covenants and warranties of the County set forth in Section 2.1 of the Original Ground Lease shall apply to the Additional Site, Additional Project and this First Amendment and shall have the same force and affect as if such representations, covenants and warranties are fully set forth herein. Giving the full effect to the amendments set forth herein, the County hereby represents and warrants that such representations, covenants and warranties are true and correct as of the date of the execution and delivery of this First Amendment. Section 4. Corporation's Representations. All representations, covenants and warranties of the Corporation set forth in Section 2.2 of the Original Ground Lease shall apply to the Additional Site, Additional Project and this First Amendment and shall have the same force and affect as if such representations, covenants and warranties are fully set forth herein. Giving the full effect to the amendments set forth herein, the Corporation hereby represents and warrants that such representations, covenants and warranties are true and correct as of the date of the execution and delivery of this First Amendment. Section 5. Confirmation of the Original Ground Lease. This First Amendment is executed and delivered pursuant to, and in accordance and in conformity with, Section 12.7 of the Original Ground Lease and Section 9.04 of the Indenture. The Original Ground Lease, as amended by this First Amendment, is in all respects ratified and confirmed and shall remain in full force and effect. Section 6. Governing Law. This First Amendment shall be governed and construed in accordance with the laws of the State of Colorado. Section 7. Counterparts. This First Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be an original; but such counterparts shall together constitute one and the same instrument. [Signature page on the next page] ~~~oF-oFSOFaroooozi-aa;i~i ~-z 2 IN WITNESS WHEREOF, the President and Secretary of the Corporation have executed this First Amendment on behalf of the Corporation and in its name and the Chairman of the Board of County Commissioners of the County has executed this First Amendment for and on behalf of the County and the Clerk to the Board of County Commissioners has attested such signature and affixed the seal of the County hereto. All of the above are effective as of date first above written. By: v~- G - ~ V ' in<,~:.x~u' Secretary cQ ~-~' [SEAL] ~ ~ Attest: L ~ t B y: Teak J. Simonton, filer] County Commissioners to the Board of EAGLE COUNTY JUSTICE CENTER FINANCING CORPORATION By: •---~ ~- l~ (~-fir"- l:; ~_~k~1 ~~:~_F~%1 ,President EAGLE COUNTY, COLORADO, as Lessee B y: Sara J. Fisher, airman ~~~~r oa;o~aoooo2i aiii~i ~z Attest: STATE OF COLORADO } } ss. COUNTY OF EAGLE } ~.~"' The foregoing instrument was acknowledged before me this ~"day of March, 2010, by ~~~. _~ t .~.k.,~~x__~.~~ President of Eagle County Justice Center Financing Corporation, and by(~i.Lr-~~ "~ t~/-]'r~ ~~ ,emu ~-- Secretary of the Eagle County Justice Center Financing Corporation. WITNESS my hand and official seal. NANCY R. WRIGHT NOTARY PUBLIC STATE OF COLORADO My Commission Expires 12/18/2010 (SEAL) ~~ ~ ~- ~_t. ' ~ c. -;ti ~ ~.~ Notary Publi " for the State of~Colorado My commission expires: ~ ~~ I ~ ~) ZO l ~~ T STATE OF COLORADO } } ss. COUNTY OF EAGLE } The foregoing instrument was acknowledged before me this ~(d-day of March, 2010, by Sara J. Fisher, as Chairman of the Board of County Commissioners, and by Teak J. Simonton, Clerk to the Board of County Commissioners. WITNESS my hand and official seal. NAPJCY R. ~.NRIGHT My Commie;, !2010 (SEAL) Notary Pubs' for the State f Colorado My commission expires: ~ ~ Z~ / v ~~~~~ - o~snFaroonoz i - aa3 i ~ i ~z EXHIBIT A DESCRIPTION OF THE SITE LEGAL DESCRIPTION PARCEL A [COMPLETED SITE]: A PARCEL OF LAND LOCATED IN TRACTS 69 & 70, SECTION 33, TOWNSHIP 4 SOUTH, RANGE 84 WEST OF THE 6TH P.M., COUNTY OF EAGLE, STATE OF COLORADO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: ASSUMING THE BEARING OF THE NORTHWESTERLY LINE OF LOT C-11, EAGLE VALLEY COMMERCIAL PARK, FILING NO. 2 TO BEARS 07°55'04" E A DISTANCE OF 109.60 FEET; THE SOUTHERLY TERMINUS OF SAID LINE BEING MONUMENTED BY AN IRON ROD AND 1.5 INCH ALUMINUM CAP STAMPED "PLS 20695"; THE NORTHERLY TERMINUS OF SAID LINE BEING MONUMENTED BY AN IRON ROD AND I.5 INCH ALUMINUM CAP STAMPED "PLS 23089", WITH ALL BEARINGS HEREON RELATIVE THERETO. COMMENCING AT THE SOUTHWEST CORNER OF A PARCEL OF LAND RECORDED IN BOOK 363 AT PAGES 214-217 AND BEING MONUMENTED BY A NAIL AND BRASS DISK STAMPED "PLS 34989"; THENCE N 20°52'58" E A DISTANCE OF 271.58 FEET TO THE POINT OF BEGINNING; THENCE THE FOLLOWING 20 COURSES: 1) N 26°42'48"W, A DISTANCE OF 1 1.70 FEET TO A POINT. 2) S 63°17'12"W, A DISTANCE OF 12.38 FEET TO A POINT. 3) N 26°42'48"W, A DISTANCE OF 38.77 FEET TO A POINT. 4) S 63° 17' 12"W, A DISTANCE OF 3.77 FEET TO A POINT. 5) N 26°42'48"W, A DISTANCE OF 14.66 FEET TO A POINT. 6) N 63° 17' 12"E, A DISTANCE OF 18.20 FEET TO A POINT. 7) S 26°46'50"E, A DISTANCE OF 6.62 FEET TO A POINT. 8) N 63° 14'39"E, A DISTANCE OF 35.78 FEET TO A POINT. 9) N 26°36'56"W, A DISTANCE OF 4.09 FEET TOA POINT. 10) N 63° 17'53"E, A DISTANCE OF 39.27 FEET TO A POINT. 11) N 26°35'35"W, A DISTANCE OF 31.00 FEET TO A POINT. 12) N 63° 18'49"E, A DISTANCE OF 26.83 FEET TO A POINT. 13) S 26°36'56"E, A DISTANCE OF 5.22 FEET TO A POINT. 14) N 63°23'04"E, A DISTANCE OF 4.45 FEET TO A POINT. 15) S 26°36'56"E, A DISTANCE OF 78.30 FEET TO A POINT. 16) S 63°23'04"W, A DISTANCE OF 2.82 FEET TO A POINT. 17) S 26°40'36"E, A DISTANCE OF 0.53 FEET TO A POINT. 18) S 63° 18'31 "W, A DISTANCE OF 17.43 FEET TO A POINT. 19) S 26°41'29"E, A DISTANCE OF 9.59 FEET TO A POINT. 20) S 63° 18'31 "W, A DISTANCE OF 88.06 FEET OT THE POINT OF BEGINNING. PARCEL B [COMPLETED SITE]: A PARCEL OF LAND LOCATED IN TRACTS 69 & 70, SECTION 33, TOWNSHIP 4 SOUTH, RANGE 84 WEST OF THE 6'" P.M., COUNTY OF EAGLE, STATE OF COLORADO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: ASSUMING THE BEARING OF THE NORTHWESTERLY LINE OF LOT C-I 1, EAGLE VALLEY COMMERCIAL PARK, FILING NO. 2 TO BEARS 07°55'04" E A DISTANCE OF 109.60 FEET; THE SOUTHERLY TERMINUS OF SAID LINE BEING MONUMENTED BY AN IRON ROD AND 1.5 INCH ALUMINUM CAP STAMPED "PLS 20695"; THE NORTHERLY TERMINUS OF SAID LINE BEING a~He - o~sofiaiooooz i - aas n i ~z Ex h i hi l A- ] MONUMENTED BY AN IRON ROD AND LS INCH ALUMINUM CAP STAMPED "PLS 23089", WITH ALL BEARINGS HEREON RELATIVE THERETO. COMMENCING AT THE SOUTHWEST CORNER OF A PARCEL OF LAND RECORDED IN BOOK 363 AT PAGES 214-217 AND BEING MONUMENTED BY A NAIL AND BRASS DISK STAMPED "PLS 34989"; THENCE N 47°02'05" E A DISTANCE OF 318.70 FEET TO THE POINT OF BEGINNING; THENCE THE FOLLOWING 14 COURSES: 1) N 26°40'36"W, A DISTANCE OF 104.03 FEET TO A POINT. 2) N 63°23'04"E, A DISTANCE OF 2.82 FEET TO A POINT. 3) N 26°36'56"W, A DISTANCE OF 16.30 FEET TO A POINT. 4) N 63°23'04"E, A DISTANCE OF 90.60 FEET TO A POINT. 5) S 26°36'56"E, A DISTANCE OF 16.30 FEET TO A POINT. 6) N 63°23'04"E, A DISTANCE OF 29.50 FEET TO A POINT. 7) S 26°36'56"E, A DISTANCE OF 61.70 FEET TO A POINT. 8) N 63°23'04"E, A DISTANCE OF 1.34 FEET TO A POINT. 9) S 26°40'36"E, A DISTANCE OF 8.90 FEET TO A POINT. 10) N 63° 18'40"E, A DISTANCE OF 19.33 FEET TO A POINT. 1 ]) S 26°40'36"E, A DISTANCE OF 31.75 FEET TO A POINT. 12) S 63° 18'40"W, A DISTANCE OF 101.39 FEET TO A POINT. 13) S 26°40'36"E, A DISTANCE OF 1.52 FEET TO A POINT. 14) S 63° 18'40"W, A DISTANCE OF 42.13 FEET TO THE POINT OF BEGINNING. PARCEL C: A PARCEL OF LAND LOCATED IN TRACTS 69 & 70, SECTION 33, TOWNSHIP 4 SOUTH, RANGE 84 WEST OF THE 6TH PRINCIPAL MERIDIAN, COUNTY OF EAGLE, STATE OF COLORADO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: ASSUMING THE BEARING OF THE NORTHWESTERLY LINE OF LOT C-11, EAGLE VALLEY COMMERCIAL PARK, FILING NO. 2 TO BEARS 07° 55' 04" E A DISTANCE OF 109.60; THE SOUTHERLY TERMINUS OF SAID LINE BEING MONUMENTED BY AN IRON ROD AND 1.5 INCH ALUMINUM CAP STAMPED "PLS 20695"; THE NORTHERLY TERMINUS OF SAID LINE BEING MONUMENTED BY AN IRON ROD AND 1.5 INCH ALUMINUM CAP STAMPED "PLS 23089", WITH ALL BEARINGS HEREON RELATIVE THERETO. COMMENCING AT THE SOUTHEAST CORNER OF A PARCEL OF LAND RECORDED IN BOOK 363 AT PAGES 214-217 AND BEING MONUMENTED BY A 5/8 INCH IRON ROD AND 1.5 INCH ALUMINUM CAP STAMPED "PLS 34989"; THENCE S 78° 41' 00" W A DISTANCE OF 437.83 FEET TO THE POINT OF BEGINNING; THENCE THE FOLLOWING 20 COURSES: 1) S 63° 23' 04" W, A DISTANCE OF 9.33 FEET TO A POINT. 2) N 26° 36' S6" W, A DISTANCE OF 1.63 FEET TO A POINT. 3) S 63° 23' 04" W, A DISTANCE OF 8.00 FEET TO A POINT. 4) S 26° 36' S6" E, A DISTANCE OF 1.63 FEET TO A POINT. 5) S 63° 23' 04" W, A DISTANCE OF 9.33 FEET TO A POINT. 6) N 26° 36' S6" W, A DISTANCE OF 1.63 FEET TO A POINT. 7) S 63° 23' 04" W, A DISTANCE OF 2.00 FEET TO A POINT. 8) N 26° 36' S6" W, A DISTANCE OF 46.92 FEET TO A POINT. 9) S 63° 23' 04" W, A DISTANCE OF 25.00 FEET TO A POINT. 10) N 26° 36' S6" W, A DISTANCE OF 78.00 FEET TO A POINT. 1 1) N 63° 23' 04" E, A DISTANCE OF 51.00 FEET TO A POINT. 12) S 26° 3G 56" E, A DISTANCE OF 62.00 FEET TO A POINT. l3) S 63° 23' 04" W, A DISTANCE OF 0.62 FEET TO A POINT. 14) S 26° 36' S6" E, A DISTANCE OF 16.00 FEET TO A POINT. 15) N 63° 23' 04" E, A DISTANCE OF 3.29 FEET TO A POINT. ~~~rn: - oFSO~~aioouoz i - aas n i ~z Exhibit A-2 16) S 26° 36' S6" E, A DISTANCE OF 38.21 FEET TO A POINT. 17) S 63° 23' 04" W, A DISTANCE OF 1.63 FEET TO A POINT. 18) S 26° 36' S6" E, A DISTANCE OF 6.33 FEET TO A POINT. 19) N 63° 23' 04" E, A DISTANCE OF 1.63 FEET TO A POINT. 20) S 26° 36' S6" E, A DISTANCE OF 4.00 FEET TO THE POINT OF BEGINNING. PARCEL D [ADDITIONAL SITE]: A PARCEL OF LAND LOCATED IN TRACTS 69 & 70, SECTION 33, TOWNSHIP 4 SOUTH, RANGE 84 WEST OF THE 6T" P.M., COUNTY OF EAGLE, STATE OF COLORADO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: ASSUMING THE BEARING OF THE NORTHWESTERLY LINE OF LOT C-11, EAGLE VALLEY COMMERCIAL PARK, FILING NO. 2 TO BEARS 07°55'04" E A DISTANCE OF 109.60 FEET; THE SOUTHERLY TERMINUS OF SAID LINE BEING MONUMENTED BY AN IRON ROD AND 1.5 INCH ALUMINUM CAP STAMPED "PLS 20695"; THE NORTHERLY TERMINUS OF SAID LINE BEING MONUMENTED BY AN IRON ROD AND 1.5 INCH ALUMINUM CAP STAMPED "PLS 23089", WITH ALL BEARINGS HEREON RELATIVE THERETO. COMMENCING AT A NORTHWESTERLY CORNER OF A PARCEL OF LAND RECORDED IN BOOK 363 AT PAGES 214-217 AND BEING MONUMENTED BY A 2.5" BRASS CAP STAMPED USGLO 1918; THENCE S 70°57'28" E A DISTANCE OF 163.59 FEET TO THE POINT OF BEGINNING; THENCE THE FOLLOWING 4 COURSES: 1) N 63°23'04"E, A DISTANCE OF 20.50 FEET TO A POINT. 2) S 26°36'56"E, A DISTANCE OF 24.75 FEET TO A POINT. 3) S 63°23'04"W, A DISTANCE OF 20.50 FEET TO A POINT. 4) N 26°36'56"W, A DISTANCE OF 24.75 FEET TO THE POINT OF BEGINNING. o~oe - o~so~aiooooa i - aa3 i ~ i ~z Exhibit A-3 EXHIBIT I3 CONSENT OF THE TRUSTEE Wells Fargo Bank, National Association, as trustee (the "Trustee") under the Mortgage and Indenture of Trust dated as of September 1, 2008 (the "Indenture") between Eagle County Justice Center Financing Corporation (the "Corporation") and the Trustee, hereby irrevocably consents to and approves the amendments to the Ground Lease dated as of September 1, 2008 between Eagle County, Colorado and the Corporation, which amendments are contained in the First Amendment to the Ground Lease dated as of March 1, 2010 to which this consent is attached as Exhibit B. This consent is given pursuant to the requirements of Section 9.04 of the Indenture. Date: ~~~ 11 , 2010 WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee ~. ~ ~ By: Juli Q. Ward, Vice President \\DE-065064/000021 -443171 v? Exhibit B