HomeMy WebLinkAboutBANK OF AMERICA FIRST AMENDMENT TO LOAN AGREEMENT CANAL IMPROVEMENTS
fiR BURNSIDE WALL LLP
~ ATTORNEYS AT LAW
Thomas R. Burnside, Jr., P.c.
James B. Wall, P.c.
James W. Ellison
Thomas R. Burnside, III
Mark B. Williamson
P.O. Box 2125
Augusra, GA. 30903
Telephone:(706) 722-0768
Facsimile: (706) 722-5984
www.burnsidewall.com
OFFICE:
454 Greene Street
Robert C. Daniel, Jr.
(1943-1993)
June 14, 2006
Mrs. Betty Murphy
Clerk of Commission Office
8th Floor, City-County Building
530 Greene Street
Augusta, Georgia 30911
Dear Betty:
You had requested copies of the documents relating to the First Amendment to Loan
Agreement with Bank of America with regard to the financing for the Canal improvements. I am
enclosing copies of this documentation. If this is not what you need, please let me know.
With best personal regards, I am
Yours very truly,
~
James B. Wall/~
JBW /sjp
Enclosures
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LAW OFFICES
HULL. TOWILL, NORMAN. BARRETT & SALLEY
A PROFESSIONAL CORPORATION
WM. HALE BARRETT
LAWTON JORDAN, JR.
PATRICK J. RICE
DOUGLAS D. BATCHELOR. JR.-
DAVID E. HUDSON
WILLIAM H. TUCKER2
WILLIAM F. HAMMOND
. MARK S. BURGREEN'
GEORGE R. HALL'
JAMES B. ELLINGTON
F. MICHAEL TAYLOR'
WILLIAM J. KEOGH. III
EDWARD J. TARVER
J. NOEL SCHWEERS III'
SUSAN D. BARRETT
R. E. HANNA III'
JAMES M. HOLLY'
OFFICE
TIMOTHY E. MOSES'
TARA RICE SIMKINS
NATALIE DOPSON SCHWEERS'
DARREN G. MEADOWS
JAMES S.V. WESTON
THOMAS L. CATHEY'
MICHAEL K. HATCH2
DAVIS A. DUNAWAY
POST OFFICE BOX 1564
AUGUST A. GEORGIA 30903 - 1564
SUNTRUST BANK BUILDING
801 BROAD STREET. SEVENTH FLOOR
AUGUSTA, GEORGIA 30901
TELEPHONE (7061 722 - 44BI
FACSIMILE 1706) 722 - 9779
www.hullfirm.com
OF COUNSEL
JULIAN B. SALLEY, JR.-
N. SHANNON GENTRY LANIER
JAMES K. STUCKO
April 20, 2005
'(ALSO SCI
2lSC ONLY)
3(ALSO FL AND sel
4lALSO NCI
Augusta'Cana1 Authority
1450 Green Street, Suite 400
Augusta, GA 30901
Bank of America, N.A.
1901 Main Street
Columbia, SC 29201
RE: The First Amendment to the Loan Agreement between the Augusta Canal
Authority and Bank of America, N.A. (the "First Amendment") in Connection
with the Augusta Canal Authority Revenue Note, Series 2004 (the "Note"), Dated
as of May 1, 2004
To the Addressees:
We have acted as Special Counsel for the purpose of delivering this OpInIOn in
connection with the execution and delivery of the First Amendment, dated April 20, 2005, to the
Loan Agreement (the "Loan Agreement") between the Augusta Canal Authority (the
"Authority") and Bank of America, N.A. (the "Lender"). The First Amendment is dated as of
April 20, 2005. Previously, the Authority issued the Note and executed and delivered the Loan
Agreement and the Intergovernmental Agreement between the Authority and Augusta, Georgia
(the "Intergovernmental Agreement") all dated as of May 1, 2004.
The First Amendment provides for the disbursement of undisbursed principal available
for borrowing under the Loan Agreement as of March 1, 2005.
In our capacity as Special Counsel, we have examined (i) executed counterparts of the
First Amendment and the Acknowledgement and Consent of Augusta, Georgia to the First
Amendment (the "City Consent"), dated April 19, 2005; (ii) certain other documents submitted
to us by or on behalf of the Authority which are included in the closing transcript; and (iii) the
SOUTH CAROLINA OFFICE.: III PARK AVENUE, sw. AIKEN. SOUTH CAROLINA 29801
TELEPHONE tB031 648.4213 F"ACSIMILE 18031 64S.2601
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HULL. TOWILL. NORMAN, BARRETT & SALLEY
documents from the issuance of the Note and the entering into of the Loan Agreement and
Intergovernmental Agreement.
In our examination, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals, and conformity to original documents
of all documents submitted to us as certified or photostatic copies. As to various questions of
fact material to our opinions we have relied solely upon the representations of the Authority and
the Lender contained in the Loan Agreement, as amended, and upon certifications of officers or
other representatives of the Authority.
In rendering the opinion as set forth in Paragraph 2 below, we have relied upon
representations, certifications and covenants of the Authority with respect to the use of the
proceeds made available under the Loan Agreement, as amended, and the Note, without
undertaking to verify the same by independent investigation.
Based upon and subject to the foregoing, it is our opinion that:
1. The First Amendment has been duly authorized, executed and delivered by the
Authority and constitutes valid and binding obligations of the Authority, enforceable in
accordance with its terms.
2. The execution and delivery of the First Amendment does not change the opinion
expressed by us in paragraph 2 of our letter addressed to you as Special Counsel, dated May 18,
2004 in connection with the issuance of the Note and Loan Agreement and that opinion does
apply to the Loan Agreement as amended by the First Amendment.
The rights of the holders of the Note and the enforceability of the Loan Agreement, as
amended, the Note, and the Intergovernmental Agreement may be subject to bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting creditors' rights
heretofore or hereafter enacted and their enforcement may also be subject to the exercise of
judicial discretion in appropriate cases, and our opinions herein are qualified by reference to such
limitations.
This opinion is delivered on the date hereof and is based upon the facts represented and
the law as of the date hereof. No undertaking is made to amend, supplement or otherwise change
this opinion based upon any event or change in circumstances or laws subsequent to the date
hereof.
Very truly yours,
HULL, TOWILL, NORMAN, BARRETT & SALLEY, P.C.
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P:\DDBlAugusta Canal Authority\2004 Loan 2703-15lCorrespondencelOur Opinion Ltr 4-20-05 .doc
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FIRST AMENDMENT TO LOAN AGREEMENT
TIllS FIRST AMENDMENT TO LOAN AGREENIENT (the "First Amendment") is made
and entered into as of the 20th dayof April 2005, by and between BANK OF AMERICA, N.A, LENDER,
and AUGUSTA CANAL AUTHORITY, BORROWER.
'WI1NE SSE TII:
WHEREAS, the Lender and the Borrower entered into that certain Loan Agreement dated as of
May 1,2004 (the "Agreement");
WHEREAS, the Construction Period ended on March 1,2005 and there remains $2.964.802.96
in undisbursed principal available for borrowing which the Lender and Borrower desire to disburse to
Borrower for completion of the construction of the Project;
WHEREAS, pursuant to Section 8.12 of the Agreement, the Lender and the Borrower have
agreed to amend the Agreement as provided in this First Amendment;
WHEREAS, all terms and provisions of the Agreement shall remain the same to the extent not
modified herein;
WHEREAS, all capitalized terms used herein and not defined herein shall have the meaning
ascribed to such terms under the Loan Documents;
NOW, 1HEREFORE, in consideration of the mutual promises, covenants and agreements
hereinafter set forth, the parties agree as follows:
ARTIClE I
AMENDMENT
Section 1.01 Amendment to Loan. Section 3.03 of the Agreement is hereby amended by
deleting subsection (c) thereof and inserting in its place the following:
(c) In the event that all of the principal amount of the Loan has not been drawn down.
by the Borrower by the end of the Construction Period, the Borrower may, without regard to the
provisions of this Section 3.03(a) and the last sentence of Section 3.03(b), and within sixty (60) days
following the end of the Construction Period, request a draw of the remaining principal balance for use
in completing the construction of the Project which draw shall be allowed if an Event of Default has
not occurred Following such a draw, Borrower shall on a monthly basis provide to Lender invoices and
other records as the Lender may request showing the amounts spent out of this final draw on the
construction of the Project. Borrower shall not invest the funds received in the final draw in any
securities not permitted under the laws of the State of Georgia and shall not receive a return on the
investment of such funds which would cause the Note to be an "arbitrage bond" under Section 148 of
the Code.
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Section 1.02 Severability of Provisions. In case anyone or more of the provisions contained
in this First Amendment should be invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein shall not in any way be affected or
impaired thereby.
Section 1.03 Successors and Assigns. This First Amendment shall be binding upon and inure
to the benefit of Borrower, Lender and their respective heirs, successors and assigns; provided, however,
that Borrower may not assign or transfer its rights to borrow under this Agreement without prior
written consent of Lender.
Section 1.04 Countetparts. This First Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one agreement, and any party hereto may
execute this First Amendment by signing any such counterpart.
INWI1NESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed under seal as of the day and year first above written.
LENDER:
BORROWER:
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As its: Cbainnan (7
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ACKNOWLEDGEMENT AND CONSENT OF AUGUSTA, GEORGIA
TO
THE FIRST AMENDMENT TO LOAN AGREEMENT
BETWEEN
BANK OF AMERICA, N.A., LENDER AND
AUGUSTA CANAL AUTHORITY, BORROWER
THIS ACKNOWLEDGEMENT AND CONS;ENT is provided by Augusta,
Georgia acting by and through ~ Augusta-Richmo.nd County Commission (the
"Consolidated Government") this .j.!J!!::day of April, 2005.
WHEREAS, the Consolidated Government entered into that Intergovernmental
Agreement between Augusta, Georgia and the Augusta Canal Authority (the "Authority")
for Improvement of the Augusta Canal dated as of May 1,2004 (the "Intergovernmental
Agreement") to finance the cost of work to be completed at the Augusta Third Level
Canal which generally consists of all channel improvements, bridges, culverts, gates and
appurtenance work as outlined in the "Augusta Canal Third Level Improvement Study"
prepared by Cranston, Robertson & Whitehurst, P.C. dated May 1999, which are more
particularly described in the Intergovernmental Agreement and in plans and
specifications therefore which are on file in the offices of the Authority and are
incorporated herein by this reference (the "Project"); and
WHEREAS, the Authority issued its Augusta Canal Authority Revenue Note,
Series 2004 (the "Note") to Bank of America, N.A. (the "Lender") in the principal
amount of $8,000,000 on the terms and conditions as set forth therein and in the Loan
Agreement (the "Loan Agreement") with the Lender both dated as of May 1,2004; and
WHEREAS, the Lender agreed to provide fInancing to the Authority to be used
to carry out the Project pursuant to the terms of the Note and Loan Agreement, which
financing is secured by the payments made by the Consolidated Government under the
Intergovernmental Agreement; and
WHEREAS, the Lender and the Authority have agreed to enter into a First
Amendment to Loan Agreement ("First Amendment"), a copy of which is attached hereto
as Exhibit A, in order to provide for the disbursement of the remaining principal available
for borrowing for completion of the construction of the Project; and
WHEREAS, as a condition to entering into the First Amendment, the Lender and
the Authority have requested that the Consolidated Government provide the
acknowledgements and consent set forth below;
NOW, THEREFORE, in consideration of the premises and the disbursement by
the Lender of the remaining undisbursed principal balance of the Loan to the Authority,
be it acknowledged by the Consolidated Government that:
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1.
As of the date set forth above, the Authority is in compliance with
all of the terms and conditions set forth in the Intergovernmental
Agreement;
2.
The Consolidated Government is aware that the Loan Agreement
is to be modified as set forth more particularly in the First
Amendment; and
3.
The Intergovernmental Agreement is not compromised by the
execution and delivery of the First Amendment.
The Mayor and the Clerk of Augusta, Georgia are hereby. authorized in the name
of and on behalf of Augusta, Georgia to execute and deliver this Acknowledgment in
substantially the form presented at the meeting, with such changes and additions
approved by the Mayor, and to execute such other documents deemed necessary or
desirable to affect the purposes stated herein.
The Consolidated Government consents to the Authority and the Lender entering
into the First Amendment and acknowledge that such action will not effect the
obligations of the Consolidated Government to make the payments to the Authority as
provided for under the Intergovernmental Agreement which payments have been
assigned by the Authority to the Lender to secure the payments due from the Authority
under the Loan Agreement.
ACKNOWLEDGED AND CONSENTED TO this /9z!. day of April, 2005.
Augusta, Georgia
/~)ly: ~ ~ ~ ci
7r Its Mayor
A~st~~
Its C}erk
[SEAL]
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RESOLUTION OF THE AUGUSTA CANAL AUTHORITY APPROVING THE FIRST
AMENDMENT TO LOAN AGREEMENT BETWEEN BANK OF AMERICA, N.A. AS LENDER
AND AUGUSTA CANAL AUTHORITY AS BORROWER
TillS RESOLUTION is adopted by the Augusta Canal Authority (the "Authority").
WHEREAS, the Authority has entered into that certain Loan Agreement dated as of May 1,2004
with Bank of America, N.A., as the Lender, (the "Agreement");
WHEREAS, the Agreement provided that undisbursed principal available for borrowing would
be disbursed in accordance with the terms of the Agreement until the end of the Construction Period,
which ended on March 1, 2005; and
WHEREAS, there remains $2,964,802.96 in undisbursed principal available for borrowing
which the Lender and Authority desire to disburse in one lump sum to the Authority for completion of the
construction of the Project;
NOW, THEREFORE, be it resolved by the Authority and it is hereby resolved by the authority
of same that the Authority is authorized and directed, through its Chairman, to enter into the First
Amendment to Loan Agreement in substantially the form attached hereto as Exhibit A (the "First
Amendment"), subject to any additions, corrections, deletions or insertions as approved by the Chairman
of the Authority whose signature on the First Amendment shall be conclusive evidence of such approval.
In addition, the Chairman of the Authority is authorized to execute on behalf of the Authority any and all
other documents, agreements or instruments which are deemed by him to be necessary or desirable in
carrying out the purposes of the First Amendment and the authorizations set forth in this Resolution. All
of such documents, instruments or agreements shall be in such form as approved by the Chairman of the
Authority whose signature thereon shall be conclusive evidence of such approval. The Secretary of the
Authority is authorized and directed to attest the signature of the Chairman on the First Amendment and
any other documents, agreements or instruments, and to provide a certified copy of this Resolution and to
execute any other certifications required or desirable to consummate this transaction.
Any Resolutions of the Authority previously adopted in conflict with this Resolution are hereby
repealed to the extent necessary to eliminate such conflict.
This Resolution shall take effect upon its adoption.
ADOPTED April 14, 2005.
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Exhibit A
FIRST AMENDMENT TO LOAN AGREEMENT
THIS FIRST AMENDMENT TO LOAN AGREEMENT (the "First Amendment") is made
and entered into as of the _ day of , 2005, by and between BANK OF AMERICA,
N.A., LENDER, and AUGUSTA CANAL AUTHORITY, BORROWER.
WITNESSETH:
WHEREAS, the Lender and the Borrower entered into that certain Loan Agreement dated as of
May 1, 2004 (the "Agreement");
WHEREAS, the Construction Period ended on March 1, 2005 and there remains $2,964,802.96
in undisbursed principal available for borrowing which the Lender and Baorrower desire to disburse to
Borrower for completion of the construction of the Project;
WHEREAS, pursuant to Section 8.12 of the Agreement, the Lender and the Borrower have
agreed to amend the Agreement as provided in this First Amendment;
WHEREAS, all terms and provisions of the Agreement shall remain the same to the extent not
modified herein;
WHEREAS, all capitalized terms used herein and not defined herein shall have the meaning
ascribed to such terms under the Loan Documents;
NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements
hereinafter set forth, the patties agree as follows:
ARTICLE I
AMENDMENT
Section 1.01 Amendment to Loan. Section 3.03 of the Agreement is hereby amended by
deleting subsection (c) thereof and inserting in its place the following:
(c) In the event that all of the principal amount of the Loan has not been drawn down
by the Borrower by the end of the Construction Period, the Borrower may, without regard to the
ptovisions of this Section 3.03(a) and the last sentence of Section 3.03(b), and within sixty (60) days
following the end of the Construction Period, request a draw of the remaining principal balance for use
in completing the construction of the Project which draw shall be allowed if an Event of Default has
not occurred. Following such a draw, Borrower shall on a monthly basis provide to Lender invoices and
other records as the Lender may request showing the amounts spent out of this final draw on the
construction of the Project. Borrower shall not invest the funds received in the final draw in any
securities not permitted under the laws of the State of Georgia and shall not receive a return on the
investment of such funds which would cause the Note to be an "arbitrage bond" under Section 148 of
the Code.
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Exhibit A
Section 1.02 Severability of Provisions. In case anyone or more of the provisions contained
in this First Amendment should be invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein shall not in any way be affected or
impaired thereby.
Section 1.03 Successors andAssigns. This First Amendment shall be binding upon and inure
to the benefit of Borrower, Lender and their respective heirs, successors and assigns; provided, however,
that Borrower may not assign or transfer its rights to borrow under this Agreement without prior
written consent of Lender.
Section 1.04 Counterparts. 1bis First Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one agreement, and any party hereto may
execute this First Amendment by signing any such counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed under seal as of the day and year first above written.
LENDER:
BORROWER:
BANK OF AMERICA, N.A.
AUGUSTA CANAL AUTHORITY
By:
By:
As its:
As its: Chairman
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