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A RESOLUTION AUTHORIZING THE EXECUTION AND DELIVERY OF A
FIRST SUPPLEMENTAL INDENTURE OF TRUST, BETWEEN
MONTEZUMA COUNTY, COLORADO AND ZIONS BANCORPORATION,
NATIONAL ASSOCIATION, AS TRUSTEE, SUPPLEMENTING THE
INDENTURE OF TRUST DATED AS OF NOVEMBER 1, 2016 WHICH
SECURES THE MONTEZUMA COUNTY, COLORADO, REVENUE BONDS
(SOUTHWEST MEMORIAL HOSPITAL PROJECT), TAX-EXEMPT SERIES
2016A, AND REVENUE BONDS (SOUTHWEST MEMORIAL HOSPITAL
PROJECT), TAXABLE SERIES 2016B; AND APPROVING VARIOUS
DOCUMENTS AND OTHER MATTERS IN CONNECTION THEREWITH.
WHEREAS, Montezuma County (the “County”) is a body politic and corporate and a
political subdivision of the State of Colorado (the “State”) duly organized and existing under the
constitution and the laws of the State; and
WHEREAS, the County is empowered by the County and Municipality Development
Revenue Bond Act (the “Development Revenue Bond Act”), being Part I of Article 3 of Title 29
of the Colorado Revised Statutes, as amended (“C.R.S.”), to issue its bonds for the purpose of
financing or refinancing any “project,” as defined in the Development Revenue Bond Act; and
WHEREAS, Southwest Health System, Inc. (the “Borrower”), a Colorado nonprofit
corporation and an organization described in Section 501(c)(3) of the Internal Revenue Code of
1986, as amended (the “Federal Tax Code), operates the Southwest Memorial Hospital and
appurtenant facilities (collectively the “Hospital Facilities”) located within the County; and
WHEREAS, the County previously issued its Revenue Bonds (Southwest Memorial
Hospital Project) Tax-Exempt Series 2016L(the “2016,{ Bonds”) and Revenue Bonds (Southwest
Memorial Hospital Project) Taxable Series 2016B (the “20168 Bonds,” and together with the
20l61Bonds, ihe “Bonds”), pursuant to the terms of an Indenture of Trust, dated as of November
1,2016 (the “Original Indenture”), by and between the County and Zions Bank, a Division of ZB,
National Association, as the trustee thereunder (the “Trustee”); and
WHEREAS, proceeds of the Bonds were loaned (the “Loan”) to Southwest Health System,
Inc., a Colorado nonprofit corporation (the “Borrower”) upon the terms and conditions set fonh in
the Loan Agreement, dated as of November 1, 2016 (the “Loan Agreement”), by and between the
County and the Borrower; and
WHEREAS, pursuant to a Continuing Covenant Agreement dated as of November 1, 2016,
between the Borrowe. a.rd a syndicate of commercial banks (collectively, the “Purchasers”), the
Purchasers agreed to purchase the Bonds and fund advances to the Borrower for purposes of
refinancing “-..tri,
ouistanding bonds of the county, financing additional improvements to the
Horpitul Ficilities in order to piovide more efficient patient care, and paying certain costs incurred
in connection with the issuance of the Bonds; and
WHEREAS, as security for repayment of the Loan and the Bonds, the Borrower assigned
to the Trustee for the Bonds its rights under the Project Funding Agreement dated as of November
1,2076, by and between Montezuma County Hospital District, a quasi-municipal corporation and
political subdivision duly organized and existing as a health service district under the constitution
and laws of the State of Colorado (the “District”) and the Borrower (the “Original Project Funding
Agreement”) to receive reimbursement of costs of the Project from the District through the annual
appropriation of District Sales Tax Revenue; and
WHEREAS, the Purchasers are the current owners of 100% in aggregate principal amount
of the Bonds; and
WHEREAS, the Borrower has iequested the release of funds from the Debt Service
Reserve Fund under the Original Indenture for deposit into a Funded Capital Improvement
Account, and in connection therewith, the Purchasers will require monthly deposits to be made by
the Borrower and the District into the Bond Fund; and
WHEREAS, Treasury Regulation $1.1001-3(e)(3)(ii) creates a “safe harbor” for deferrals
of scheduled payments so long as the deferral does not exceed the lesser of (i) five years from the
original due date of the first scheduled payment that is deferred, or (ii) 50 percent of the original
term of the debt and the deferred payments are unconditionally payable at the end of the safe harbor
period; and
WHEREAS, the deferral of scheduled payments will not exceed the lesser of the foregoing
limitations; and
WHEREAS, the Borrower has requested that the County enter into a First Supplemental
Indenture of Trust (the “First Supplemental Indenture”) between the County and the Trustee for
the purpose of making certain modifications to the Original Indenture, including but not limited to
(i) allowing for the release of funds in the Debt Service Reserve Fund for deposit into the Funded
Capital Improvement Account, (ii) creating the Funded Capital Improvement Account to be used
for Qualifying Expenditures (as defined therein), (iii) providing that amounts on deposit in the
Bond Fund in excess of amounts due thereunder shall be transferred to the Funded Capital
Improvement Account, and (iv) amending certain defined terms; and
WHEREAS, Section 8.02 of the Original Indenture permits the execution of a
supplemental indenture for the pupose of modifying, altering, amending, adding to, or rescinding,
in any particular, any of the terms or provisions contained in the Original Indenture or in an-y
supplemental indenture with the consent of the Purchasers and the Borrower; and
WHEREAS, the Purchasers and the Borrower have acknowledged and consented to the
First Supplemental Indenture, dated as of August 1,2023, by and between the County and the
Trustee (the “First Supplemental Indenture” and together with the Original Indenture, the
“Indenture”); and
WHEREAS, there has been presented to the Board at or prior to this meeting the proposed
form of the First Supplemental Indenture; and
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COLINTY
C OMMI S S IONERS OF MONTEZUMA C OLINTY, C OLORAD O :
Section l. Approval of the First Supplemental Indenture. The First Supplemental
Indenture in substantially the form presented to the Board at or prior to this meeting, is in all
respects approved, but with such changes, modifications, additions or deletions as the Chairman
of the Board, with the advice of counsel, deems necessary, desirable or appropriate and are not
inconsistent with this Resolution. The Chairman or Vice Chairman of the Board are hereby
authorized and directed to execute and deliver, and the County Clerk and Recorder is hereby
authorized and directed to attest and seal, the First Supplemental Indenture on behalf ofthe County.
The execution of any document by an authorized member of the Board or officer of the County
shall be conclusive proof of the approval by the Board of the terms thereof.
Section 2. Authority to Execute and ver Additional Documents. The officers,
employees and agents of the County shall take all action in conformity with the Development
Revenue Bond Act necessary or reasonably required to effectuate this Resolution and the execution
and delivery of the First Supplemental Indenture, and shall take all action necessary or desirable
in conformity with the Development Revenue Bond Act to carry out, give effect to and
consummate the transactions contemplated by this Resolution and the First Supplemental
Indenture, including, without limitation, the execution, delivery and filing of any documents,
statements or reports with the Internal Revenue Service or with the Secretary of the United States
Treasury or his or her delegate necessary to maintain the exclusion of interest on the Series 20164
Bonds from gross income for federal income tax purposes, and the execution and delivery of any
closing documents to be delivered in connection with the sale and delivery of the Bonds.
Section 3. No Recourse Against Officers and Agents. Pursuant to Section ll-57-209,
C.R.S., if a member of the Board or any officer or agent of the County acts in good faith, no civil
recourse shall be available against such member, officer or agent for payment of the principal of,
premium, if any, and interest on the Bonds. Such recourse shall not be available either directly or
indirectly through the Board or the County, or otherwise, whether by virtue of any constitution,
statute, rule of law, enforcement of penalty or otherwise. By the acceptance of the Bonds or any
interest therein and as a partof the cbnsideration of their sale or purchase, any person purchasing
or selling the Bonds or any interest therein specifically waives any such recourse.
Section 4. Third Party Beneficiaries. With the exception of any rights herein expressly
conferred, nothing “*pr.s”d
* ,*rrti,oned in or to be implied from the Resolution or the First
Supplemental Indintuie is intended or shall be construed to give to any person other than the
County, the Trustee, the Borrowef or the Purchasers any legal or equitable right, remedy or claim
under or with respect to this Resolution or any covenants, conditions and provisions herein
contained. This Resolution and all of the covenants, conditions and provisions hereof are intended
WHEREAS, the Board of County Commissioners of the County (the “Board”) has
considered the request of the Borrower and desires to authorize the execution on behalf of the
County of the First Supplemental Indenture in substantially the form presented at this meeting;
and to be for the sole and exclusive benefit of the County, the Trustee, the Borrower and the Purchasers
as herein provided.
Section 5. Ratification and Approval of Prior Actions. All actions, not inconsistent
with the provisions of this Resolution, heretofore taken by the Board and the officers of the Board
directed toward the execution and delivery of the First Supplemental Indenture are hereby ratified,
approved and confirmed.
Section 6. Headines. The headings to the various sections and subsections of this
Resolution have been inserted solely for the convenience of the reader, are not a part of this
Resolution and shall not be used in any manner to interpret this Resolution.
Section 7. Resolution Irrepealable. After execution and delivery of the First
Supplemental Indenture, this Resolution shall be and remain inepealable until the Bonds and the
interest thereon shall have been fully paid, canceled and discharged.
Section 8. Repealer. All resolutions, bylaws, orders and other instruments, or parts
thereof, inconsistent herewith are hereby repealed to the extent only of such inconsistency.. This
repealer shall not be construed to revive any resolution, bylaw, order or other instrument, or part
thereof, heretofore repealed.
Section 9. Severabilit)r. If any section, paragraph, clause or provision of this
Resolution shall for any reason be held to be invalid or unenforceable, the invalidity or
unenforceability of such section, paragraph, clause or provision shall not affect any of the
remaining provisions of this Resolution.
Section 10. Effective Date. This Resolution shall take effect immediately upon its
adoption and approval.
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