HomeMy WebLinkAboutAugusta Riverfront Limited Partnership
Augusta Richmond GA
DOCUMENT NAME: AlXju~to. ~\lWC0\- LImit(() YQ\'-\nO'Sh\p
DOCUMENT TYPE: C1~
YEAR: qq
BOX NUMBER: C)~
FILE NUMBER: \"-\ ~l\~
NUMBER OF PAGES: Y8
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Prepared By and Return To:
R,E, Hanna III
Hull. Towill. Norman & B3l'Tell. P,C,
P,O, Box 517
Aiken. SC 29802
CANCELLATION OF DEED TO SECURE DEBT
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WHEREAS, the indebtedness referred to in that certain UDAG Security Deed and Security
Agreement given by Augusta Riverfront Limited Partnership, a Georgia limited partnership, as grantor,
in favor of Augusta, Georgia (formerly the City Council of Augusta, Georgia), as grantee, dated
February 2. 1990, and recorded in Realty Reel 327, beginning at Page 2286, in the office of the Clerk
of Superior Court of Richmond County, Georgia (the "County"), has been paid in full; and
WHEREAS, the undersigned is the present owner of the interest secured by said instrument.
NOW, THEREFORE, the Clerk of the Superior Court of the County is hereby authorized and
directed to cancel said instrument of record as provided in Section 44-14-4 of the Official Code of
Georgia Annotated for other mortgage cancellations.
IN WITNESS WHEREOF, the undersigned has executed this cancellation, under seal, this
day of June, 1999.
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Signed, sealed and delivered, on the date
above indicated, in the presence of:
otary Public
Conmlission Expiration Date:
~ r.ounty. Geof&Ia
~ botrl& oec:. 5, 2001
(Notanal Seal) i
(Seal)
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SATISFACTION AND CANCELLATION
OF PROMISSORY NOTE
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This Satisfaction and Cancellation of Promissory Note is executed thi~~ day ofJune, 1999,
by Augusta, Georgia (formerly the City Council of Augusta, Georgia) (the "City") in favor of
Augusta Riverfront Limited Partnership, a Georgia limited partnership (the "Borrower").
WHEREAS, the City is the holder of that Promissory Note and Guaranty Agreement (the
"Note") from the Borrower to the order of the City dated February 2, 1990, in the original principal
amount of $7,562,454.00, a true and correct copy of which is attached hereto;
WHEREAS, the Borrower has prepaid and satisfied the indebtedness evidenced by the Note
in full and has satisfied all obligations of the Borrower under the loan (the "Loan") made by the City
to the Borrower pursuant to that certain Urban Development Action Grant Agreement Number B-87-
AA-13-0095 issued to the City by the U.s. Department of Hous'ing and Urban Development on
November 30, 1987, as amended; and
WHEREAS, the Note has been lost, and the City desires to execute this instrument to
evidence the satifaction and cancellation thereof.
NOW THEREFORE, in consideration of a payment of$3,250,000.00 by the Borrower, and
for other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the City agrees, represents, and warrants as follows:
1. The City is the bona fide owner and holder of the Note, the original Note has been lost
and cannot be found, and the Note has not been, and will not be, assigned, endorsed, hypothecated,
pledged, transferred or conveyed to any person or entity.
2. The City acknowledges that the indebtedness evidenced by the Note is satisfied in full,
and this instrument shall have the same force and effect as if the original Note were marked
"satisfied" across its face by the City. In the event the City ever finds the original Note, the City
shall mark it "satisfied" across its face and deliver it to the Borrower.
IN WITNESS WHEREOF, the undersigned has executed this instrument under seal effective
the date and year first above written.
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2
UDAG PROMISSORY NOTE AND GUARANTY AGREEMENT
$ 7,562,454.00
1"",0
February 0< -, 1990
For
value
received,
Augusta
Riverfront
Limited
Partnership ("Maker" or "Developer"), promises to pay to the order
of the City Council of Augusta, Georgia, a municipal corporation
under the laws of the State of Georgia, ("Holder" or "City"), the
principal sum of $7,562,454.00, (the "UDAG Loan") in legal tender
of the United States.
This UDAG Promissory Note is subject to the legal
operation and effect of the UDAG City/Developer Agreement of even
date herewith between the parties, and said UDAG City/Developer
Agreement, by this reference thereto, is incorporated herein and
made a part hereof. The parties recognize and agree that this note
evidences and is given in consideration of Holder advancing to
Maker the UDAG Loan, to be used by Maker for the development and
construction of the Office Building and Hotel Components of the
Augusta Riverfront project, which project and components are more
particularly described in the UDAG City/Developer Agreement.
The loan obligation created herein (the UDAG Loan) shall
consist of an Interim UDAG Loan and a Permanent UDAG Loan.
Repayment of the UDAG Loan shall made l.n the manner set forth
below:
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1. Interim UDAG Loan (Construction Loan)
(a) Principal. The principal amount of the UDAG Interim
Loan shall be $7,562,454.00.
(b) Term. The term of the Interim UDAG Loan shall
commence upon the initial disbursement of grant funds, but in no
event later than May 31, 1990, and shall end upon the earlier of
May 31, 1992, or the completion of construction.
(c) Interest and Payments. The interest will be zero
percent (0%) during the term of the Interim UDAG Loan. No payments
of principal or interest will be required.
(d) Disbursements/Ratio. Disbursements of Interim UDAG
Loan funds shall be based upon vouchers submitted by Developer,
verified by City, and certified by the architect, construction
manager, or other certifying official acceptable to City. All
submissions by contractors of monthly requisitions shall be on AlA
forms 702 and 703, or their equivalent.
No disbursement of the UDAG Loan shall be made until:
(a) Developer has furnished City with an ALTA Loan
Policy of title insurance in the original principal amount of the
UDAG Loan, insuring that City is the holder of a second lien on the
Project Site, free of encumbrances and other exceptions to title
other than those approved in advance by City, and not subordinated
to any interest except the first mortgage of the mortgagee in an
original principal amount not to exceed $17,000,000, plus any
further advances by the mortgagee and approved by HUD, which are
invested in the Project and are required for its completion (the
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"First !1ortgage"). However, Developer shall have the right to
substitute ,additional first mortgage financing debt for up to
$3,000,000 of committed equity. In this event, the UDAG Loan shall
be subordinated to not more than the outstanding first mortgage
principal balance at time of refinancing plus additional debt of
up to $3,000,000, but in no event shall the "New First !1ortgage"
exceed $20,000,000; provided, however, that the indebtedness
secured by said First !1ortgage shall mature thirty (30) years from
the earlier of May 31, 1992, or the completion of construction such
that all such indebtedness shall mature on or before May 31, 2022;
(b) Developer has furnished City with a Builder's Risk
and Fire Insurance policy or policies duly endorsed to indicate
City as an insured mortgagee;
(c) All of the requirements for draw down of Grant Funds
set forth in Paragraph I(b) of Exhibit F to this Grant Agreement
have been satisfied. Upon the completion of the foregoing
requirements, UDAG Loan funds may be drawn down and disbursed for
use pursuant to the provisions of the UDAG Grant Agreement, (the
provisions of which, by this reference thereto, are incorporated
herein and made a part hereof) in a ratio to Countable Private
Funds (as defined in said UDAG Grant Agreement) of not more than
$1.00 of UDAG Loan funds to $3.23 of Countable Private Funds
expended on the project including the funds above required to be
expended prior to disbursement of UDAG Loan funds.
(e) Guarantee. Developer unconditionally and
irrevocably guarantees the completion of the Non-Recipient
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activities pertaining to Developer pursuant to the schedule set
forth in Exhibit /IF" of the UDAG Grant Agreement. Developer
uncondi tionally and irrevocably guarantees the repayment of the
UDAG Loan through completion of Project construction, at which time
the UDAG Loan shall become a non-recourse obligation to Developer.
Except as above-stated, neither the Developer, the general
partners, nor the limited partners of Developer, shall be
personally liable for the payment of the obligation evidenced
hereby, and the enforcement of the rights of the Holder hereof
shall be limited to the collateral given as security herefor.
2. UDAG Permanent Loan
(a) Principal. The principal amount of the UDAG
Permanent Loan shall be $7,562,454.00.
(b) Term. The term of the UDAG Permanent Loan shall
commence upon completion of construction but in no event later than
June 1, 1992, and shall be coterminous with the term of permanent
first mortgage loan; however, in the event the Developer refinances
his seven year "mini-perm", the term of the UDAG Loan may be
extended (up to a cumulative period of 30 years) to coincide and
run parallel with the term of the first mortgage loan.
(c) Interest. The interest rate shall be zero percent
(0%) per annum, except contingent interest described in
subparagraph (e) below.
(d) Repavment. There shall be no requirement for
payments of principal during the term of the loan. There shall be
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a single payment of the entire principal amount at the end of the
loan term.
(e) Continqent Interest/Participation In Cash Flow.
Annually throughout the remainder of the term of the
permanent UDAG Loan, Developer shall pay to City 20 'percent of the
Net Annual Cash Flow of the Project. "Net Annual Cash Flow" means
all operating income and receipts of the proj ect less (1) debt
service on the First Mortgage, if any, (2) real estate taxes, (3)
reasonable operating expenses (including a management fee not to
exceed 5 percent of operating income) allowable for federal income
tax purposes, but excluding reserves for capital imp:rovements, /'
depreciation, and other non-cash items, and (4) a 15 percent non-
cumulative
return to
Developer
on
Developer's
documented
cash
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equity funds invested in the Project, including the value ascribed
by HUD to a portion of the proj ect site of $525,000.00 and
certified cash equity invested for operating losses in years one
(1) through four (4) of operations.
In the event the First
Mortgage (as defined in said UDAG Grant Agreement) is increased
from $17,000,000 to $20,000,000 and the loan funds are distributed
to Developer's partners, the foregoing fifteen (15) percent non-
cumulative return shall be based on said Developer's documented
cash equity less the loan funds distributed to Developer's
partners.
Participation payments shall be due within 90 days of
the end of each operating year of the project.
3. Security. The UDAG Loan shall be secured by the UDAG
Security Deed and Security Agreement, of even date herewith, (the
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provisions of which are, by this reference thereto, incorporated
herein and made a part hereof) in favor of the City upon all land,
buildings, fixtures, equipment, and other assets of the Developer
comprising the project. The security position of City may be
subordinated only to the First Mortgage.
4. Participation in Sale or Refinancinq. Developer
shall pay to City 20 percent of the net proceeds from any sale or
disposition in whole or in part of the Project or from any
syndication or refinancing, except refinancing permitted under
Exhibit "E" of the UDAG Grant Agreement, pursuant to a call or a
takeout provision contained in the First Security Deed. "Net
Proceeds" shall be defined as all proceeds received less (1)
repayment of the first priority financing, (2) repayment of the
UDAG Loan, (3) Developer's documented reasonable costs of sale or
refinancing, and (4) repayment of documented Developer's cash
equity funds invested in the Project including the value ascribed
by HUD to a portion of the Project site of $525,000.00.
5. Acceleration of UDAG Loan. The entire principal
balance of the UDAG Loan shall become immediately due and payable
upon the (1) bankruptcy or reorganization of Developer under the
Bankruptcy Code or the Internal Revenue Code of 1986, as amended,
(2) dissolution or liquidation of Developer, (3) syndication of
Developer, except a one-time syndication of Developer, pursuant to
paragraph numbered 6, below, (4) change in ownership of more than
15 percent of the partnership interests in Developer, (5)
refinance, except that for the first se~1 years Developer may
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refinance the First Mortgage as often as Developer deems necessary
provided that the First Hortgage financing does not exceed the
total of $20,000,000.00 plus any further advances by the
mortgagee (s) which are invested in capital improvements in the
Project, and which are approved by HUD, and which are required for
its completion, or (6) sale, partial sale, exchange, transfer, sale
under foreclosure, or any other disposition of the Project Site,
improvements,
or capital
equipment situated thereon.
No
improvements or capital equipment situated on the Project site
shall be removed, demolished, or materially altered, without prior
written consent of city, except that Developer shall have the
right, without such consent, to remove and dispose of, free from
any lien of City, such equipment as from time to time may become
worn out or obsolete, provided that simultaneously with or prior
to such removal, any such equipment shall be replaced with other
equipment of value at least equal to that of the replaced equipment,
and free from any title retention or other encumbrance unless
permitted under the UDAG Security Deed and Security Agreement, and
by such removal and replacement Developer shall be deemed to have
subjected such replacement equipment to the security interest of
city, as provided in the UDAG Security Deed and Security Agreement.
6. Excess Syndication Proceeds. City shall be entitled
to receive 60 percent of the Excess Syndication Proceeds from the
Project.
"Excess Syndication Proceeds" means the amount of net
syndication proceeds either owed to or received by the general
partner(s) from the limited partner investor(s) that results in a
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surplus of receipts not required to complete the Project and in
excess of the $9,248,275.00 of cash equity invested in the Project
(plus any additional equity funds required to complete the Project)
including the value ascribed by HUD to a portion of the Project
site of $525,000.00. "Net Syndication Proceeds" means all
syndication proceeds received less armis length, third party costs
of the syndication such as legal, accounting, closing~ printing,
syndication, brokerage, and marketing fees.
7. Annual Accountinq. Developer shall deliver a
statement to City from an independent certified public accountant ?
within 90 days of the close of each operating year during the term
of the UDAG Permanent Loan, certifying:
(1) Operating income and receipts of the Project:
(2) Operating expenses allowable for federal income tax
purposes;
(3) Net Annual Cash Flow;
(4) Developer equity invested in the project;
(5) Net proceeds;
(6) Gross Syndication Proceeds, if applicable:
(7) Net Syndication Proceeds, and a statement of
allowable deductions used to determine said amount, in accordance
with paragraph numbered 6 above, if applicable;
(8) Excess syndication Proceeds; and
(9) The amount of participation in Net Annual Cash Flow,
Net Proceeds, and Excess Syndication Proceeds to City.
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8.
Prepayment.
There shall be no prepayment without
prior written consent of Holder.
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Default.
It is hereby expressly agreed that said
principal sum of the obligation or any unpaid part thereof, and any
other sums advanced by Holder under the security deed, shall, at
the option of Holder, and after notice and opportunity to cure,
become immediately due and payable on the happening of any default
under the terms of the UDAG City jDeveloper Agreement, the UDAG
Security Deed and Security Agreement, the Construction, Operating,
and Reciprocal Easement Agreement, this UDAG Promissory Note
(together, the "UDAG Loan Documents"), and any event of default
which remains uncured under the First Mortgage.
Should any default be made under the terms of any of the
UDAG Loan Documents, or in the repayment of the UDAG Loan hereunder
when the same is due, or should there occur any event of default
which remains uncured under the First Security Deed or any
obligation secured thereunder, or if any default be made, and the
same not be corrected within 30 days after receipt of Notice or
Declaration of Default, the entire unpaid balance of said principal
sum of this obligation, shall at the option of Holder become
immediately due and payable; provided, however, that before Holder
may pursue 'any remedies in one event of default as set forth in
the UDAG Loan documents, or other legal remedies, Holder must send
to Maker, by registered or certified mail, return receipt
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requested, written Notice or Declaration of Default. However, ,
Holder may immediately pursue any of the remedies hereunder, or
provided in the UDAG Loan documents, without sending Notice, or
Declaration of Default and providing opportunity to cure, upon the
bankruptcy or reorganization of Maker under the Bankruptcy Code or
the Internal Revenue Code of 1986, as amended, the dissolution or
liquidation of Maker, change in ownership of more than 15 percent
of the partnership interests in Developer, or refinance except as
provided in Paragraph numbered 5 hereof, sale, partial sale,
exchange, transfer, sale under foreclosure, or any other
disposi tion of the proj ect Site, improvements, or capital equipment
situated thereon, except as provided in paragraph numbered 7 of the
UDAG Security Deed and Security Agreement.
Said Notice or Declaration of Default shall provide Maker
a 30 day period after receipt of said notice in which to cure any
default; provided, however, that if any such default (other than
one curable by the payment of money) may be cured, but not within
such 30 day period, and so long as any delay in curing such default
does not (i) result in the inability of the Maker to meet its
obligations under the UDAG Loan documents, or (ii) adversely effect
the availability of any remedies hereunder, Holder shall not
proceed to pursue its available remedies if Maker commences to cure
such failure promptly within such 30 day period and thereafter
diligently prosecutes such efforts to cure to completion; further
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(b) The undersigned acknowledges that this UDAG
Promissory Note and the rights of the parties hereto shall be
governed by the Laws of the state of Georgia and interpreted and
construed in accordance with such laws.
(c) In case any provisions (or any part of any
provision) contained in this UDAG Promissory Note shall for any
reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not
affect any other provision (or remaining part of the affected
provision) of this UDAG Promissory Note.
(d) As used herein, the terms "Maker" and "Holder" shall
be deemed to include respective successors and assigns, whether
voluntary by operation of the parties, or involuntary by operation
of law.
(e) Maker stipulates and warrants that the debt
evidenced hereby is a commercial loan.
Maker warrants that all
loan proceeds will be used to acquire or carry on a business or
commercial enterprise.
(f) Nothing contained in this UDAG Promissory Note shall
be deemed by the parties hereto, or by any third party, to create
the relationship of principal and agent, that of a joint venture,
or of any association between Maker and Holder, it being expressly
understood and agreed that no provisions contained in this UDAG
Promissory Note nor any acts of the parties hereto shall be deemed
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to create any relationship between Maker and Holder other than the
relationship of debtor and creditor.
(g) Any required notices shall be in writing and shall
be sent registered or certified mail, return receipt requested to
the respective addresses as follows, or to such other, address as
either Maker or Holder may designate by written notice, duly mailed
to the other party:
To City (Holder): Mayor, City of Augusta
Augusta-Richmond County
Municipal Building
530 Greene Street
Augusta, Georgia 30911
Copy To: Director, Office of Economic
Development, City of Augusta
Augusta-Richmond County
Municipal Building
530 Greene street
Augusta, Georgia 30911
To Developer (Maker): Augusta Riverfront
Limited Partnership
c/o Azalea Development Corporation
Post Office Box 936
Augusta, Georgia 30913
Copy To: Bailey & Associates
619D Powers Ferry Road, N.E.
Suite 100
Atlanta, Georgia 30339
Time of Essence~
Time is of the essence in this
11.
Agreement.
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IN WITNESS WHEREOF, Maker has caused this UDAG Promissory
Note to be executed in its name and on its behalf with its seal
affixed thereto as of the day and year first above written.
AUGUSTA RIVERFRONT LIMITED
PARTNERSHIP, Developer
BY: B & A AUGUSTA LIMITED
PARTNERSHIP, Managing Partner
BY:
Augusta, Inc.
General Partner
BY:
BY:
AZALEA DEVELOPMENT
CORPORATION,
A General Partner
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AS ITS PRESIDENT, .
BY:
G::..,
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AUGUSTA-RICHMOND COUNTY COMMISSION
BOB YOUNG
Mayor
JAMES B. WALL
CITY ATTORNEY
P. O. Box 2125
454 GREENE STREET
AUGUSTA, GEORGIA 30903
Bus. (706) 821-2488
Fax No, (706) 722-5984
E-Mail: JWall@co.richmond.ga.us
ULMER BRIDGES
JERRY BRIGHAM
HENRY H, BRIGHAM
RICHARD L. COLCLOUGH
FREDDIE L, HANDY
WILLIAM B. KUHLKE, JR,
WM. "WrLLIE" H, MAYS, III
], B. POWELL
STEPHEN E. SHEPARD
LEE BEARD
Mayor Pro Tern
CHARLES R, OLIVER. P E. CPA
Adminislralor
July 23, 1999
Ms. Lena Bonner
Clerk, Commission
8th Floor, City-County Bldg.
Augusta, GA 30911
RE: Augusta Riverfront Limited Partnership
Dear Lena:
I am enclosing a copy of the Satisfaction and Cancellation of the Promissory Note
of Augusta Riverfront Limited Partnership. By carbon copy of this letter, I am forwarding a
copy of same to Keven Mack.
With best personal regards, I am
Yours very truly,
,
~
James B. Wall
JBW/sjp
Enclosure
Cc: Keven Mack