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HomeMy WebLinkAboutCARLYLE DEVELOPMENT LLC PROJECT SERIES 2010A DEVELOPMENT AUTHORITY OF RICHMIOND COUNTY REVENUE BONDSAPPROVAL BY THE MAYOR OF AUGUSTA, GEORGIA OF DEVELOPMENT AUTHORITY OF RICHMOND COUNTY REVENUE BONDS (THE CARLYLE DEVELOPMENT, LLC PROJECT) SERIES 2010A, and DEVELOPMENT AUTHORITY OF RICHMOND COUNTY REVENUE BONDS (THE CARLYLE DEVELOPMENT, LLC PROJECT) TAXABLE SERIES 2010B, in the aggregate principal amount not to exceed $9,850,000. WHEREAS, under Section 147 (f) of the Internal Revenue Code of 1986, as amended, and under Treasury Regulations, the Consolidated Government of Augusta, Georgia (the "Consolidated Government ") must approve the revenue bonds to be designated "Development Authority of Richmond County Revenue Bonds, (The Carlyle Development LLC, Project) Series 2010A and the "Development Authority of Richmond County Revenue Bonds(The Carlyle Development LLC, Project) Taxable Series 2010B ( "the Bonds ") because it is the governmental unit on behalf of which the Bonds are to be issued by the Development Authority of Richmond County ( the "Issuer ") as a part of the overall financing of the Project and because it is the governmental unit having jurisdiction over the area in which the facilities are located with respect to which financing is to be provided from the proceeds of the Bonds; and WHEREAS, under Treasury Regulations, the issuance of the Bonds is to be approved by the Consolidated Government only if the applicable elected representative of the Consolidated Government approves the Bonds following a public hearing held in a location which, under the facts and circumstances, is convenient for residences of the Consolidated Government and for which there is reasonable public notice; and WHEREAS, the Mayor of Augusta, Georgia is the applicable elected representative of the Consolidated Government, within the meaning of the Treasury Regulations, because he is the Consolidated Government's chief executive officer popularly elected at -large by the voters of the Consolidated Government; and WHEREAS, on March 15, 2010, at 11:00 a.m., at the offices of the Issuer at 1450 Greene Street in Room 560 of the Historic Enterprise Mill in Augusta, Georgia, the Issuer, through its designated public hearing officer, conducted a public hearing on the Bonds upon the Application of THE CARLYLE DEVELOPMENT LLC, (the "COMPANY ") and the location and nature of the facilities to be financed with the proceeds of the Bonds, notice of which was published in The Augusta Chronicle on February 25, 2010; and Whereas, the Issuer recommends and requests that the governmental unit approve the plan of finance for the issuance of the Bonds and the financing of the Project (hereinafter defined). NOW, THEREFORE, THE MAYOR OF AUGUSTA, GEORGIA ACTS AS FOLLOWS: The Mayor of Augusta, Georgia hereby approves the Bonds; (a) The proceeds of which will refinance in whole or in part of the cost of acquiring, constructing, installing and equipping a Senior Housing Facility to be located within the territorial limits of the consolidated government at 2360 Tobacco Road, Augusta, Georgia, in Augusta, Georgia (the "Consolidated Government), hereinafter referred to as the(Project "). (b) The maximum face amount of which will be not to exceed $9,850,OOO.and will be used for (i) the purposes described in (a) above (ii) funding of various reserve accounts, and (iii) payment of various issuance cost related to the Bonds. (c) The initial owner, operator or manager of the facilities or Project financed from the proceeds of the Bonds will be the COMPANY; and (d) The location of the facilities and the Project to be financed from the proceeds of the Bonds is as described in paragraph (a) above in Augusta, Georgia. 2. This approval is solely for the purpose of complying with, and is to be construed in accordance with, the provisions of Section 147 (f) of the Internal Revenue Code of 1986, as amended, and such approval does not constitute an endorsement to a prospective purchaser of the Bonds or the creditworthiness of the Company or the Project, and the Bonds shall not constitute a indebtedness or general obligation or result in or impose any pecuniary liability upon or constitute a lien upon the property of or a claim against the Consolidated Government, the State of Georgia, or any political subdivision thereof, but the Bonds shall be payable solely from the revenues derived from the Company and pledged to the payment thereof and no owner of any of the Bonds shall ever have the right to compel the exercise of the taxing power of said State or of any county, municipal corporation, consolidated government or political subdivision thereof, nor to enforce the payment thereof against any property of said State or any such county, municipal corporation, consolidated government or political subdivision. Approved this t 0 7 ' ' day of March, 2010. MAYOR OF AUGU STA, GEORGIA Certificate of The Development Authority of Richmond County Regarding Public Hearing I, the undersigned Hearing Officer of the Development Authority of Richmond County (the "Issuer ") DO HEREBY CERTIFY, as follows: (1) A Public Hearing was held pursuant to Section 147(f) of the Internal Revenue Code of 1986, as amended, and under applicable Treasury Regulations, on March 15, 2010, at 11:00 o'clock A.M., in the conference room of the Issuer located in the Historic Enterprise Mill Building at 1450 Greene Street, in Augusta, Georgia 30901, pursuant to proper notice given in accordance with law as to the time and place of this Hearing prior to such Hearing. The Hearing was open to the public. The time of the Hearing and the room in which the Hearing was held provided a reasonable opportunity for persons of differing views to appear and be heard. At such Hearing, Mr. Jerry B. Dye, a duly authorized Hearing Officer of the Issuer was present and acting on behalf of the Issuer. (2) I announced the commencement of a Public Hearing on behalf of Augusta, Georgia (The Consolidated Government of Augusta - Richmond County), on the Application of THE CARLYLE DEVELOPMENT LLC, or its subsidiary or other related entity (the "Company ") for the proposed issuance by the Issuer of "Development Authority of Richmond County Revenue Bonds (The Carlyle Development, LLC Project) Series 2010A and the proposed issue by the Issuer of its "Development Authority of Richmond Revenue Bonds (The Carlyle Development LLC, Project) Taxable Series 2010B, in the aggregate principal amount not to exceed $9,850,000. (3) The Chairman of the Issuer has caused the publication of a notice of the Hearing at least fourteen (14) days prior to the Hearing in the Augusta Chronicle, a newspaper having general circulation in Richmond County, Georgia, (the "Notice "). A copy of the Notice has been filed and appears of record in the Minute Book of the Issuer and is attached hereto together with the affidavit of publication as Exhibit "A ". 1 (4) The following person presented a written statement to the Issuer on behalf of the Company: The Company introduced a copy of the Bond Resolution, without Exhibits 1, A and B, adopted by the Issuer at its meeting of January 21, 2010. Copies of said omitted Exhibits are on file in the Minute Book of the Issuer. (5) The following person(s) also appeared and asked to be heard or present written comments with respect to the granting by the Issuer of the financial assistance requested by the Company and the financing referred to in the Notice: None. No one else having appeared to speak on the matter, I declared the Public hearing closed at 11:15 o'clock A.M. This 15th day of March, 2010. Baring Officer Jerry B. Dye I HEREBY CERTIFY that the signature of the Hearing Officer of the Issuer above subscribed is true and genuine and that the foregoing is a true and complete description of the Public Hearing of the Issuer on March 15, 2010. L�Davis-, Secretary Development Authority of Richmond County Exhibit Attached: "A" — Copy of Notice together with Affidavit of Publication "B "- Bond Resolution 2 EXHIBIT "A" AFFIDAVIT OF PUBLICATION ATTORNEY OR AGENCY Jerry B. Dye BUSINESS STATE OF GEORGIA COUNTY OF RICHMOND Personally appeared before me, L i U (, , to me known, who being sworn, deposes and says: That he /she is the authorized agent of Southeastern Newspapers Company, LLC, a Georgia Limited Liability Company, doing business in said county under the trade name of The Richmond County Neighbors, a newspaper published in said County; that he /she is authorized to make affidavits of publication on behalf of said publisher company; The Richmond County Neighbors; that said newspaper is of general circulation in said county and in the area adjacent thereto; that he /she has reviewed the regular editions of said newspapers published on and finds that the following advertisement apVeared in each - ofjaid goitions, to -wit: Feb. f25, 2010 Sworn to is 11%Aay of March 2010 Notary RgWic Richmond County, Georgia. BOND RESOLUTION WHEREAS, the Development Authority of Richmond County (the "Issuer ") is a public corporation and an instrumentality of the State of Georgia; and WHEREAS, O.C.G.A. Section 36 -62 -1, et seq. (the "Act ") enables the Issuer to issue its revenue obligations for the purpose of financing any undertaking within the scope of its power in furtherance of the public purpose for which it was created; and WHEREAS, the Issuer has heretofore initially adopted a resolution, dated August 15, 2007, later updated on December 17, 2009 (the "Inducement Resolution "), approving in principle the financing of a proposed project in Richmond County, Georgia, and authorizing the execution of this Bond Resolution and the issuance of its tax - exempt and /or taxable obligations in the amount of not to exceed $9,850,000, for financing the (i) acquisition, construction, installation and equipping of a senior housing development to be located on a site at 2360 Tobacco Road, Augusta, Georgia, (ii) funding of various reserve accounts, and (iii) payment of the costs related to the issuance of the Bonds (hereinafter, collectively, the "Project "), and the Borrower (hereinafter defined) has represented to the Issuer that its assistance in financing the project is a vital factor in the decision to proceed with the project in Richmond County, Georgia, on behalf of The Carlyle Development, LLC, a Georgia limited liability company, and /or its assigns (the "Borrower "); and WHEREAS, in accordance with the applicable provisions of the Act, the Issuer, in furtherance of the public purpose for which it was created, proposes to enter into a Loan Agreement (the "Agreement "), dated as of February 1, 2010, or such other date as shall be approved by the Issuer, with the Borrower under terms of which the Issuer agrees to finance, in whole or in part, the cost of acquiring, constructing and installing the Project, all as is more fully set forth in the Agreement for the exclusive use and occupancy of the Borrower, and the Borrower agrees to pay to the Issuer specified payments which will be fully sufficient to pay the principal of and interest on the Bonds hereinafter authorized as the same become due and to pay certain administrative expenses in connection with said Bonds; and WHEREAS, after study and investigation by the Issuer, it appears to be in the best interests of the citizens of Richmond County, Georgia, that the Agreement be entered into, and the Issuer has found and does hereby declare that the Project constitutes a lawful and valid public purpose in that it will further the public purpose intended to be served by the Act; and WHEREAS, a feasible method of financing the Project is by the issuance and sale of the Development Authority of Richmond County First Mortgage Revenue Bonds (The Carlyle Development, LLC Project), Series 2010 (hereinafter the "Bonds ") to be issued in an aggregate amount not to exceed $9,850,000; and EXHIBIT "B" WHEREAS, under the terms of the Agreement, the Issuer will receive payments from the Borrower, which said payments shall be assigned and pledged, together with the Agreement itself, and other "Revenues" (defined in the Agreement) as security for the payment of the principal of, prepayment premium (if any) and interest on, the Bonds; and WHEREAS, as security for the .payment of the Bonds, the Borrower will convey title to and grant a security interest in the Project to the Issuer by a Deed to Secure Debt and Security Agreement (the "Security Agreement "), dated as of February 1, 2010, or such other date as shall be approved by the Issuer, and WHEREAS, the Issuer and Wells Fargo Bank, N.A., Atlanta, Georgia, or such other trustee as shall be approved by the Issuer (the "Trustee ") will enter into a Trust Indenture, dated as of February 1, 2010, or such other date as shall be approved by the Issuer (hereinafter the "Trust Indenture "), containing the form of the Bonds and setting forth in detail the terms under which the Bonds are to be issued; NOW, THEREFORE, BE IT RESOLVED, as follows: Section 1. Authority for Bond Resolution This Bond Resolution is adopted pursuant to the provisions of the Act. Section 2. Findings It is hereby ascertained, determined and declared that: (a) the financing of the Project is a lawful and valid public purpose in that it will further the public purpose intended to be served by the Act; (b) the payments to be received by the Issuer under the Agreement will be fully sufficient to pay the principal of and interest on, the Bonds as the same become due and to pay certain administrative expenses in connection with the Bonds; and (c) the Bonds will constitute only a limited obligation of the Issuer and will be payable solely from the Revenues to be assigned and pledged to the payment thereof and will not constitute a debt or a general obligation or a pledge of the faith and credit of the Issuer, State of Georgia or any political subdivision thereof, including Richmond County, and will not directly, indirectly, or contingently obligate the Issuer, said State or any political subdivision thereof, including said County, to levy or to pledge any form of taxation whatever for the payment thereof. Section 3. Authorization of the Financing of the Project The financing of the Project as contemplated in the Agreement is hereby authorized. 2 Section 4. Authorization of Bonds For the purpose of financing the cost, in whole or in part, of the Project, the issuance of revenue bonds of the Issuer known as "Development Authority of Richmond County First Mortgage Revenue Bonds (The Carlyle Development, LLC Project), Series 2010" is hereby authorized. The Bonds shall be dated, mature, bear interest, be subject to prepayment prior to maturity and be payable as set forth in the Agreement. The Bonds shall be issued as fully registered taxable and /or tax exempt Bonds in the denominations and face amounts (the aggregate of which shall not exceed $9,850,000 at a weighted average interest rate not to exceed 11.00 % per annum), set forth in the Agreement and with such rights of transfer and executed in the manner provided in the Agreement. Section 5. Authorization of Agreement The execution, delivery and performance of the Agreement between the Issuer and the Borrower are hereby authorized. The Agreement shall be in substantially the form attached hereto as Exhibit 1, subject to such minor changes, insertions or omissions as may be approved by the Chairman of the Issuer, and the execution of the Agreement by the Chairman and Secretary of the Issuer as hereby authorized shall be conclusive evidence of any such approval. Section 6. Approval of Security Agreement The form of the Security Agreement from the Borrower to the Issuer is hereby approved. The Security Agreement shall be in substantially the form attached to the Agreement as Exhibit A, subject to such minor changes, insertions or omissions as may be approved by the Chairman of the Issuer, and the acceptance of the Security Agreement by the Issuer shall be conclusive evidence of any such approval. Section 7. Authorization of Trust Indenture In order to secure the payment of the principal of and interest on, the Bonds herein authorized, the execution, delivery and performance of the Trust Indenture by and between the Issuer and the Trustee are hereby authorized. The Trust Indenture shall be in substantially the form attached to the Agreement as Exhibit B, subject to such minor changes, insertions or omissions as may be approved by the Chairman of the Issuer and the execution of the Assignment by the Chairman and Secretary of the Issuer as hereby authorized shall be conclusive evidence of any such approval. Section 8. Authorization of Sale of Bonds The sale of the Bonds to Bergen Capital, a division of Scott & Stringfellow, Inc., or such other underwriter as shall be approved by the Issuer (the "Underwriter "), as provided in the Agreement, is hereby approved. Section 9. Ratification and Confirmation of Inducement Agreement The execution and subsequent delivery on behalf of the Issuer of the Inducement Agreement with respect to the Issuer's agreement in principle to finance the Project are hereby ratified and confirmed. Section 10. Non - Arbitrage Certification Any officer of the Issuer is hereby authorized to execute a non - arbitrage certification in order to comply with Section 148 3 of the Internal Revenue Code of 1986, as amended, and the applicable Income Tax Regulations thereunder. Section 11. No Personal Liability No stipulation, obligation or agreement herein contained or contained in the Agreement or the Trust Indenture shall be deemed to be a stipulation, obligation or agreement of any officer, director, agent or employee of the Issuer in his individual capacity, and no such officer, director, agent or employee shall be personally liable on the Bonds or be subject to personal liability or accountability by reason of the issuance thereof. Section 12. Indemnification Issuance of the Bonds is conditioned upon the inclusion of Section 410 entitled "Indemnification of Issuer and Trustee" in the terms of the Trust Indenture. Section 13. General Authority From and after the execution and delivery of the documents hereinabove authorized, the proper officers, directors, agents and employees of the Issuer are hereby authorized, empowered and directed to do all such acts and things and to execute all such documents as may be necessary to carry out and comply with the provisions of said documents as executed and are further authorized to take any and all further actions and execute and deliver any and all other documents and certificates as may be necessary or desirable in connection with the issuance of the Bonds and the execution and delivery of the Agreement and the Trust Indenture and to document compliance with the provisions of Section 103 of the Internal Revenue Code of 1986, as amended, it being the intent herein to clothe said officials with broad and plenary powers in the premises. The Chairman and Secretary of the Issuer are hereby authorized and directed to prepare and furnish to the purchaser or purchasers, when the Bonds are issued, certified copies of all the proceedings and records of the Issuer relating to the Bonds, and such other affidavits and certificates as may be required to show the facts relating to the legality and marketability of the Bonds as such facts appear from the books and records in the officers' custody and control or as otherwise known to them; and all such certified copies, certificates and affidavits, including any heretofore furnished, shall constitute representations of the Issuer as to the truth of all statements contained therein. Section 14. Actions Approved and Confirmed All acts and doings of the officers of the Issuer which are in conformity with the purposes and intents of this Bond Resolution and in the furtherance of the issuance of the Bonds and the execution, delivery and performance of the Agreement and the Trust Indenture shall be, and the same hereby are, in all respects approved and confirmed. Section 15. Severability of Invalid Provisions If any one or more of the agreements or provisions herein contained shall be held invalid, then such covenants, agreements or provisions shall be null and void and shall be deemed separable from the remaining agreements and provisions and shall in no way affect the validity of any of the other agreements and provisions hereof or of the Bonds authorized hereunder. ILI Section 16. Repealin Cause All resolutions or parts thereof of the Issuer in conflict with the provisions herein contained are, to the extent of such conflict, hereby superseded and repealed. Section 17. Effective Date This Bond Resolution shall take effect immediately upon its adoption. ADOPTED on the 21' day of January, 2010. DEVELOPMENT AUTHORITY OF RICHMOND COUNTY By: hai man (SEAL) 5 SECRETARY'S CERTIFICATE A 6 - p S ecretary of the Development Authority of Richmond County, DO HEREBY CERTIFY that the foregoing pages of typewritten matter constitute a true and correct copy of the Bond Resolution adopted on the 21" day of January, 2010, by the members of the Issuer in a meeting duly called and assembled, which was opened to the public and at which a quorum was present and acting throughout, and that the original of said Bond Resolution appears of record in the Minute Book of the Issuer which is in my custody and control. GIVEN under the hand and seal of the Development Authority of Richmond County this 21' day of January, 2010. �e Secretary, Development Authority of Richmond County 138910002.D14.doc P