REGISTRATION AND PAYING AGENT AGREEMENT between CITY AND COUNTY OF BROOMFIELD, COLORADO and UMB BANK, n.a. DENVER, COLORADO Dated as of January 26, 2011
REGISTRATION AND PAYING AGENT AGREEMENT THIS REGISTRATION AND PAYING AGENT AGREEMENT, dated as of January 26, 2011, and any amendments or supplements hereto made in accordance herewith (collectively, the "Paying Agent Agreement") is made by and between the CITY AND COUNTY OF BROOMFIELD, COLORADO, (the "City and County"), a home-rule city and county organized and existing under the laws of the State of Colorado and UMB Bank, n.a., Denver, Colorado, duly organized and existing under the laws of the United States (the "Registrar" or the "Paying Agent"), as paying agent and registrar hereunder; W I T N E S S E T H : WHEREAS, the City and County of Broomfield, State of Colorado (the "City and County"), is a political subdivision of the State, a body corporate and politic, a home-rule City and County pursuant to Article XX of the State Constitution and a city and county pursuant to Sections 10, 11, 12 and 13 of Article XX of the State Constitution (the "Constitutional Amendment"); and WHEREAS, the City and County, proposes to issue its Sales Tax Revenue Refunding Bond (Broomfield Village Metropolitan District No. 2), Series 2011 in a principal amount not to exceed $23,000,000 (the "Series 2011 Bond" or the "Bond"), pursuant to the provisions of Ordinance No. 1933, Amended (the "2010 Bond Ordinance" or the "Bond Ordinance") to be finally adopted by the City Council (the "Council") of the City and County, on December 7, 2010; and WHEREAS, the City and County is desirous of having the Registrar act as paying agent, and registrar for the Series 2011 Bond under the terms and conditions, and in the manner hereinafter set forth; and WHEREAS, the Registrar is desirous of acting as paying agent and registrar for the Series 2011 Bond under the terms and conditions, and in the manner hereinafter set forth; and WHEREAS, the Registrar is the Trustee under an Indenture of Trust between Broomfield Village Metropolitan District No. 2 and the Trustee for Broomfield Village Metropolitan District No. 2, Special Revenue Variable Rate Refunding Bonds, Series 2011 (the "District Series 2011 Bonds") in a principal amount not to exceed $23,000,000. NOW, THEREFORE, in consideration of the foregoing, and of the purchase and acceptance of the Series 2011 Bonds by the owners thereof, and of the sum of One Dollar ($1.00), lawful money of the United States of America, to the City and County paid by the Registrar, at or before the execution and delivery of these presents, and for other good and valuable consideration the receipt of which is hereby acknowledged, in order to secure the payment of the principal of and the interest on the Series 2011 Bond according to its tenor and effect and to insure the performance and observance by the parties hereto of all the agreements expressed herein and in the Series 2011 Bond, hereby agree that they are bound by the provisions hereof, for themselves and their assigns, the City and County, and Registrar hereby further agree as follows: -1-
ARTICLE I DEFINITIONS Section 1. Definitions. In addition to the capitalized terms as set out in the Bond Ordinance (hereinafter defined) whenever used in this Paying Agent Agreement, the following words and phrases shall have the following definitions, unless the context otherwise clearly requires: "Amended and Restated Reimbursement Agreement" means the Amended and Restated Sales Tax Reimbursement Agreement between the City and County and the District. "Bond Ordinance" means Ordinance No. 1933, Amended to be finally adopted by the Council of the City and County on December 7, 2010. "Business Day" means any day other than (a) a Saturday or Sunday or (b) a day on which banking institutions in the State of New York or the State of Colorado or the Registrar are authorized or required by law or executive order to remain closed. "District" means Broomfield Village Metropolitan District No. 2, a quasi-municipal corporation duly organized and existing as a metropolitan district under the constitution and laws of the State of Colorado, particularly Title 32, Article 1, C.R.S. "District Series 2011 Bonds" means Broomfield Village Metropolitan District No. 2, Special Revenue Variable Rate Refunding Bonds, Series 2011 in a principal amount not to exceed $23,000,000 for the purpose of refunding the District's Series 2003 Bonds. "District Series 2011 Bonds Indenture" means the indenture of trust for the District's Series 2011 Bonds. "Registered Owners" or Owners" means the registered owner of any Series 2011 Bond as set forth on the registration books of the Registrar. "Registrar" means UMB Bank, n.a., Denver, Colorado, duly organized and existing under the laws of the United States of America, and its successors and assigns appointed pursuant to Section 3.11. "Trustee" means UMB Bank, n.a., as Trustee under the Indenture. -2-
ARTICLE II PAYMENT OF SERIES 2011 BOND Section 2.01. Payment of Principal and Interest. (a) The City and County agrees that it will pay on the first Business Day of every month into a special fund hereby created with the Registrar by the City and County and identified as the "Series 2011 Principal and Interest Fund," the principal and interest on the Series 2011 Bond. (b) The City and County further agrees that it will promptly pay into the Series 2011 Principal and Interest Fund all other amounts required to be paid by the City and County pursuant to this Paying Agent Agreement to be used for the purposes set forth herein. Section 2.02. Incorporation of Section 4 of the Bond Ordinance. Section 4 of the Bond Ordinance is incorporated herein. Section 2.03. Use of Moneys in the Series 2011 Principal and Interest Fund. Moneys in the Series 2011 Principal and Interest Fund shall be transferred to the Trustee and shall be applied by the Trustee in the order of priority set forth in the Indentures and in Section 2.03 of the Reimbursement Agreement. Section 2.04. Non-presentment of Series 2011 Bond. If any Series 2011 Bond shall not be presented for payment when the principal thereof becomes due at maturity provided moneys sufficient to pay such Series 2011 Bond or portion thereof shall have been made available to the Registrar and are held in the Series 2011 Principal and Interest Fund for the benefit of the Registered Owners thereof, all liability of the City and County to the Registered Owners thereof for the payment of such Series 2011 Bond or portion thereof shall forthwith cease, terminate, and be completely discharged, and thereupon it shall be the duty of the Registrar to hold such moneys, subject to Section 2.05, in the Series 2011 Principal and Interest Fund, without liability for interest thereon, for the benefit of the Registered Owners of such Series 2011 Bond, who shall thereafter be restricted exclusively to moneys held in the Series 2011 Principal and Interest Fund, for any claim of whatever nature on his part under this Paying Agent Agreement or on, or with respect to, such Series 2011 Bond or portion thereof. Section 2.05. Repayment to the City and County from the Series 2011 Principal, and Interest Fund. (a) Except as provided in (b) below, any moneys remaining in the Series 2011 Principal and Interest Fund after payment in full of the Series 2011 Bond, the fees, charges, and expenses of the Registrar and any Co-Registrar which have accrued and which will accrue and all other items required to be paid hereunder shall be paid to the City and County. (b) Any moneys held by the Registrar in the Series 2011 Principal and Interest Fund shall be retained by the Registrar for the payment of Series 2011 Bond not yet presented for payment. If after one (1) year such moneys held for the Registered Owners of the Series -3-
2011 Bond has not been claimed, then it shall be the duty of the Registrar forthwith to return to the City and County all moneys held by the Registrar in the Series 2011 Principal and Interest Fund, subject to any other requirements of law as may be applicable to such funds, and any such Owners shall thereafter as an unsecured general creditor, look only to the City and County for the payment of any such Series 2011 Bond and all liability of the Registrar shall thereupon cease. ARTICLE III REGISTRATION, AUTHENTICATION AND GENERAL PROVISIONS Section 3.01. Forms of Series 2011 Bond; Authentication. The Series 2011 Bond shall be in the form and shall be executed in the manner set forth in the Bond Ordinance. The Series 2011 Bond shall be dated as of the date of issuance. The Registrar's Certificate of Authentication on any Series 2011 Bond shall be deemed to have been executed by the Registrar if signed by any authorized officer of the Registrar, but it shall not be necessary that the same officer execute the Certificate of Authentication on the Series 2011 Bond. Section 3.02. Registration Books. As set forth in the Bond Ordinance, the Registrar has been appointed registrar and paying agent of the City and County with respect to the Series 2011 Bond. The Registrar shall keep and maintain, on behalf of the City and County, books for the registration of the Series 2011 Bond as required by the Bond Ordinance. At reasonable times and under reasonable regulations established by the Registrar, such books may be inspected and copied by the City and County, or the Registered Owners. Section 3.03. Registration of Series 2011 Bond; The Series 2011 Bond is subject to registration in the manner hereinafter set forth. The Series 2011 Bond which is presented for registration or payment (if so required by the Registrar) shall be accompanied by a written instrument or instruments of authorization in form and with guaranty of signature satisfactory to the Registrar, duly executed by the Registered Owner or Owners or by his, her, or their duly authorized attorney. Section 3.04. Ownership of Series 2011 Bond. The City and County, and the Registrar may deem and treat the Registered Owner of any Series 2011 Bond (whether or not such Series 2011 Bond shall be overdue) as the absolute owner of such Series 2011 Bond for the purpose of receiving payment of or on account of the principal of and interest due thereon, and on any other date for all other purposes, and neither the City and County nor the Registrar shall be affected by any notice to the contrary. Section 3.05. Registration. Registrar is hereby constituted and appointed the registrar for such Series 2011 Bond. The person in whose name the same shall be registered shall be deemed and regarded as the absolute owner thereof for all purposes, and payment of or on account of the principal of and interest of any such Series 2011 Bond shall be made only to the Registered Owner thereof as of the close of business on the Record Date or his or her duly authorized attorney. All such -4-
payments shall be valid and effectual to satisfy and discharge the liability upon such Series 2011 Bond to the extent of the sum or sums so paid. Section 3.06. Cancellation. The Series 2011 Bond which has been redeemed by the City and County or paid by the City and County, shall not be reissued but shall be canceled and cremated, or otherwise destroyed by the Registrar and an affidavit of cancellation, cremation, or destruction shall be forwarded to the City and County. Section 3.07. Acceptance of Responsibilities of Registrar. As set forth in the Bond Ordinance, the Registrar is appointed as the registrar and paying agent by the City and County for the Series 2011 Bond. The City and County agrees to pay the fees of the Registrar for the performance of such services. The Registrar hereby accepts its appointments hereunder upon the terms and conditions hereof, including, without limitation, the following: A. The City and County shall pay or repay the Registrar and its officers and agents for any loss, liability, or expense (including the costs and expenses of defending against any claim of liability) incurred without negligence or willful misconduct by the Registrar or any of its officers, employees or agents and arising out of or in connection with the Registrar acting as Registrar. The obligations of the City and County hereunder shall survive the payment of the Series 2011 Bond and the termination of this Paying Agent Agreement. B. The duties and obligations of the Registrar shall be determined solely by the express provisions of this Paying Agent Agreement and the Bond Ordinance and no implied duties, obligations, or covenants on the part of the Registrar shall be read into this Paying Agent Agreement or the Bond Ordinance. Anything in the Bond Ordinance to the contrary notwithstanding, any amendment or supplement to the Bond Ordinance which affects any rights, powers, liability, or obligation of the Registrar shall not become effective unless and until the Registrar shall have consented to such amendment or supplement. The City and County agrees to furnish to the Registrar a copy of any amendment or supplement to the Bond Ordinance, promptly upon the adoption thereof, whether or not the consent of the Registrar is required pursuant to the next preceding sentence. C. In the absence of negligence or willful misconduct on the part of the Registrar, the Registrar may conclusively rely as to the truth of the statements expressed therein upon any document furnished to the Registrar and the Registrar may rely and shall be protected in acting upon any document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Registrar shall not be liable for any error or judgment made in good faith by a responsible officer or officers of the Registrar. D. The Registrar may consult with counsel satisfactory to it and the City and County, and the opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or thing suffered by it hereunder in good faith and in accordance with the opinion of such counsel. E. The Registrar may become the owner of, or acquire any interest in any of the City and County's obligations (including, without limitation, the Series 2011 Bond) with the -5-
same rights that it would have if it were not the Registrar hereunder, and may engage in or be interested in any financial or other transaction with the City and County, and may act for, or as depositary, trustee, or agent for any holders of any obligations of the City and County or any committee or body of such holders, as freely as if it were not the Registrar hereunder. F. The Registrar shall not be under any liability for interest on any moneys at any time received by it pursuant to any of the provisions of the Bond Ordinance or this Paying Agent Agreement, nor shall the Registrar invest said moneys during the period of time said moneys are held by the Registrar pursuant to this Paying Agent Agreement. The City and County will pay all stamp or other documentary taxes or duties, if any, to which this Paying Agent Agreement is or may hereafter become subject. G. Anything herein to the contrary notwithstanding, the Registrar shall have no liability hereunder for any act or omission except as shall result from the Registrar's negligence or willful misconduct. Section 3.08. Successor Registrar. Any corporation or association into which the Registrar may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its corporate trust business and assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall be and become successor Registrar hereunder vested with all of the powers, discretions, immunities, privileges, and all other matters as was its predecessor, without the execution or filing of any instrument or any further act, deed, or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstanding. Any successor Registrar shall not be appointed unless the Insurer approves such successor in writing. Section 3.09. Resignation by Registrar. The Registrar and any successor Registrar may at any time resign from the duties hereby created by giving thirty (30) days' written notice by registered or certified mail to the City and County and to the Registered Owner of each Series 2011 Bond as shown by the list of Registered Owners required by Section 3.05 hereof to be kept by the Registrar, but such resignation shall not take effect until the appointment of a successor Registrar by the Registered Owners or by the City and County. The Registrar shall not be entitled to resign until a substitute Registrar has been accepted. Section 3.10. Removal of the Registrar. The Registrar may be removed at any time by an instrument or concurrent instruments in writing (a) executed by the City and County, or (b) delivered to the Registrar and to the City and signed by the Registered Owners of a majority in aggregate principal amount of outstanding Series 2011 Bond, but such removal shall not take effect until the appointment of a successor Registrar by the Registered Owners or by the City and County. Section 3.11. Appointment of Successor Registrar. In case the Registrar shall resign or be removed, or be dissolved, or shall be in course of dissolution or liquidation, or otherwise become incapable of acting hereunder, or in case it shall be taken under the control of any public officer or officers, or of a receiver appointed by a court, a successor may be appointed by the Registered Owners of a majority in aggregate principal amount of Series 2011 Bond by an -6-
instrument or concurrent instruments in writing signed by such Registered Owners, or by their attorneys in fact duly authorized, a copy of which shall be delivered personally or sent by registered mail to the City and County. In case of any such vacancy, the City and County, by an instrument executed, attested, and sealed by its authorized officials, may appoint a temporary Registrar to fill such vacancy until a successor Registrar shall be appointed by the Registered Owners of the Series 2011 Bond in the manner above provided; and such temporary Registrar so appointed by the City and County shall immediately and without further act be superseded by the Registrar appointed by the Registered Owners of the Series 2011 Bond; provided, however, that in the event the temporary Registrar appointed by the City and County shall not be superseded by a Registrar appointed by the Registered Owners of the Series 2011 Bond within six (6) months from the effective date of appointment by the City and County, the right of the Registered Owners of the Series 2011 Bond to appoint a successor Registrar shall be deemed to be waived and the Registrar appointed by the City and County shall be deemed to be the Registrar hereunder. Any successor Registrar shall be a commercial bank with trust powers. In the event that no successor registrar is appointed within sixty (60) days, the Registrar may petition the courts of the State of Colorado to have a successor Registrar appointed. Notice of the appointment of a successor Registrar shall be given in the same manner as provided in Section 3.09 hereof with respect to the resignation of a Registrar. Section 3.12. Amendments and Waivers. No amendment or waiver of any provision of this Paying Agent Agreement, nor consent to any departure herefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. Notwithstanding the foregoing, no amendment or waiver of this Paying Agent Agreement which shall affect the rights and benefits of the Registered Owner shall be effective until approved by consent of the Registered Owner affected. Any amendment or waiver which shall not affect the rights and benefits of the Registered Owners shall be accomplished by a written instrument executed by the City and County, and Registrar and shall not require the consent of the Registered Owners. Section 3.13. Notices. All notices and other communications provided for hereunder between the Registrar and the City and County shall be in writing, shall be deemed given when received and, except as otherwise provided, shall be mailed by registered or certified mail, return receipt requested, or delivered and receipt thereof acknowledged to the following addresses, or faxed: If to the Registrar, at 1670 Broadway, Denver, Colorado 80202; Attention: Corporate Trust Department; if to the City and County, at One DesCombes Drive, Broomfield, Colorado 80020, Attention: City and County Manager. The Registrar and the City and County may by notice given hereunder, designate any further or different addresses to which subsequent communications shall be sent. All notices or other communications provided for hereunder from the Registrar or the City and County to the Registered Owners shall be in writing and mailed by first-class mail to the Registered Owners at their addresses appearing on the registration books for the Series 2011 Bond kept by the Registrar and shall be effective three (3) days after the date of deposit in the mails, addressed as aforesaid. -7-
Section 3.14. Resignation, Removal, Termination. Notwithstanding any other provision of this Paying Agent Agreement, no removal, resignation, or termination of the Paying Agent shall take effect until a successor, acceptable to the Insurer, shall be appointed. Section 3.15. Severability. Any provision of this Paying Agent Agreement which is prohibited, unenforceable, or not authorized in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition, unenforceability, or lack of authorization without affecting the validity, enforceability, or legality of this Paying Agent Agreement in such jurisdiction or such provision in any other jurisdiction. Section 3.16. Closing Statement - Unclaimed Funds. One year after final maturity date, the Registrar shall present a final statement and shall return any unclaimed funds to the City and County. The cancelled Series 2011 Bond shall be returned to City and County or destroyed by the Registrar, in which case an affidavit of destruction shall be forwarded to the City and County. The City and County agrees to pay all unpaid Series 2011 Bond and interest payments during the applicable statutory period of redemption from the moneys returned to it by the Registrar and shall release and indemnify the Registrar from any further liability or responsibility for payment. Section 3.17. Termination. This agreement shall terminate upon delivery of the final statement under Section 3.16. Section 3.18. Governing Law. This Paying Agent Agreement shall be governed by, and construed in accordance with the laws of the State of Colorado. Section 3.19. Headings. Section headings in this Paying Agent Agreement are included herein for convenience of reference only and shall not constitute a part of this Paying Agent Agreement for any other purpose. -8-