Loading...
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 ... '" .,/ 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 ,,-4 .~_' 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. H~,.-r~, f\)~.e,~~j~ P:\DDBlAugusta Canal Authority\2004 Loan 2703-15lCorrespondencelOur Opinion Ltr 4-20-05 .doc t, '.. ./- 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. 2 ~ .' 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: ~~~-) As its: Cbainnan (7 3 ~ ~ .. -' 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: ,. .' 10 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] ,~ " 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. P:\DDBlAugusta Canal Authority\2004 Loan 2703-1 S\Resolution 4-14-05.doc ., 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. 2 P:\DDB\AUGUSTA CANAL AUTIlORI1Y\2004 LOAN 2703-1S\F1RST AMDTTO LoAN AGMT 4-13-0S.DOC # 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 3 P: \DDB \AUGUSTA CANAL AUTHORI1Y\2004 LoAN 2703-1S\'FIRsT AMDT TO LOAN AGMT 4-13-0S.DOC