HomeMy WebLinkAboutCOLISEUM AUTHORITY REVENUE REFUNDING BONDS SERIES 2004 (RESOLUTION, CONTRACT
Augusta Richmond GA
DOCUMENT NAME~ C '::>0\ u. -\i 0 v)
DOCUMENT TYPE;~ eso \ ~T'\ b V}
YEAR: ')JXJ ~
BOX NUMBER: L \
FILE NUMBER: \ \ \ ~L
NUMBER OF PAGES:
5~
I
i
Ii.
.t
RESOLUTION
A RESOLUTION OF AUGUSTA, GEORGIA AUTHORIZING, INTER
ALIA, THE EXECUTION OF A CONTRACT RELATING TO THE
ISSUANCE OF $5,555,000 IN AGGREGATE PRINCIPAL AMOUNT OF
AUGUSTA-RICHMOND COUNTY COLISEUM AUTHORITY REVENUE
REFUNDING BONDS, SERIES 2004
Adopted: March 16, 2004
Exhibit" A"
Form of Contract, to be dated as of March 1,2004
I
RESOLUTION
WHEREAS, there has heretofore been created as a body corporate and politic and
deemed to be a political subdivision of the State of Georgia and a public corporation, the Augusta-
Richmond County Coliseum Authority pursuant to the "Augusta-Richmond County Coliseum
Authority Act" (Georgia Laws 1973, p. 3042 et seq., as amended), ,and the Authority is now legally
existing and operating and its members have entered upon their duties; and
WHEREAS, the Authority owns and operates a coliseum-civic center, an
auditorium and related facilities (the "Coliseum Complex"); and
WHEREAS, the Authority previously issued $6,380,000 in aggregate principal
amount of its Augusta-Richmond County Coliseum Authority Revenue, Refunding Bonds, Series
1993 (the "Series 1993 Bonds"); and
WHEREAS, after careful study and investigation, the Authority has determined that
it is in its best interest to refund the Series 1993 Bonds; and
WHEREAS, in order to refund the Series 1993 Bonds, the Authority will issue
$5,555,000 in aggregate principal amount of its Augusta-Richmond County Coliseum Authority
Revenue Refunding Bonds, Series 2004 (the "Series 2004 Bonds"); and
WHEREAS, the Series 2004 Bonds will be secured by the revenues derived from
the ownership and operation of the Coliseum Complex; and
WHEREAS, as additional security for the Series 2004 Bonds, the Authority and
Augusta, Georgia (the "Consolidated Government") propose entering into a Contract, dated as of
March 1, 2004 (the "Contract"); and
WHEREAS, the Consolidated Government proposes approving the use and
distribution of a Preliminary Official Statement (the "Preliminary Official Statement") and the
use, distribution and execution of an Official Statement (the "Official Statement"); and
WHEREAS, the Consolidated Government also proposes approving the
execution of a Bond Purchase Agreement, dated the date hereof (the "Bond Purchase
Agreement"), among the Consolidated Government, the Authority and Banc of America
Securities LLC, as underwriter (the "Underwriter"); and
WHEREAS, in order to permit the Underwriter to comply with the provisions of
Rule 15c2-12(b)(v) promulgated by the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended, the Consolidated Government proposes to execute
and deliver a Continuing Disclosure Certificate (the "Continuing Disclosure Certificate") to be
dated the date of issuance of the Series 2004 Bonds; and
...
l
NOW, THEREFORE, BE IT RESOLVED BY THE AUGUSTA-
RICHMOND COUNTY COMMISSIONS, as follows:
Section 1. Authorization of Contract. The execution, delivery and performance
of the Contract be and the same are hereby authorized. The Contract shall be in substantially the
form attached hereto as Exhibit "A," subject to such minor changes, insertions or omissions as
may be approved by the Mayor or Mayor Pro Tem of the Consolidated Governrnent, and the
execution of the Contract by the Mayor or Mayor Pro Tem and Clerk or Assistant Clerk of the
Consolidated Governrnent as hereby authorized shall be conclusive evidence of any such
approval. '
Section 2. Authorization of Bond Purchase Agreement. The execution, delivery
and performance of the Bond Purchase Agreement be and the same are hereby authorized. The
Bond Purchase Agreement shall be in substantially the form presented at this meeting, subject to
such minor changes, insertions or omissions as may be approved by the Mayor or Mayor
Pro Tem of the Consolidated Government prior to the execution and delivery thereof, and the
execution of the Bond Purchase Agreement by the Mayor or Mayor Pro Tem and Clerk or
Assistant Clerk of the Consolidated Government as hereby authorized shall be conclusive
evidence of any such approval.
Section 3. Approval of Offering Documents. The use and distribution of the
Preliminary Official Statement presented at this meeting prior to the date hereof is hereby
approved, ratified and confirmed. The execution, use and distribution of the Official Statement
are hereby approved. The Official Statement shall be in substantially the form of the Preliminary
Official Statement, subject to such minor changes, insertions or omissions as may be approved
by the Mayor or Mayor Pro Tem of the Consolidated Government prior to the execution and
delivery thereof, and the execution of the Official Statement by the Mayor or Mayor Pro Tem of
the Consolidated Governrnent as hereby authorized shall be conclusive evidence of any such
approval.
Section 4. Authorization of Continuing Disclosure Certificate. The execution,
delivery and performance of the Continuing Disclosure Certificate described in the Preliminary
Official Statement be and the same are hereby authorized. The Continuing Disclosure Certificate
shall be in substantially the form described in the Preliminary Official Statement, subject to such
minor changes, insertions or omissions as may be approved by the Mayor or Mayor Pro Tem of
the Consolidated Government prior to the execution and delivery thereof, and the execution of
the Continuing Disclosure Certificate by the Mayor or Mayor Pro Tem of the Consolidated
Governrnent as hereby authorized shall be conclusive evidence of any such approval.
Section 5. Validation of Series 2004 Bonds. The Mayor or the Mayor Pro Tem
and Clerk or Assistant Clerk of the Consolidated Governrnent are authorized to acknowledge
service and make answer in the validation proceeding relating to the Series 2004 Bonds.
Section 6. No Personal Liability. No stipulation, obligation or agreement herein
contained or contained in the Contract or the other documents herein authorized shall be deemed
2
"
I
to be a stipulation, obligation or agreement of any officer, director, agent or employee of the
Consolidated Government in his individual capacity.
Section 7. General Authority. From and after the execution and delivery of the
documents hereinabove authorized, the proper officers, directors, agents and employees of the
Consolidated Government 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 Series 2004 Bonds and the execution and
delivery of the Contract and the other documents herein authorized.
Section 8. Actions Approved and Confirmed. All acts and doings of the officers
of the Consolidated Government which are in conformity with the purposes and intents of this
Resolution and in the furtherance of the issuance of the Series 2004 Bonds and the execution,
delivery and performance of the Contract and the other documents herein authorized shall be,
and the same hereby are, in all respects approved and confirmed.
Section 9. Severability of Invalid Provisions. If anyone or more of the
agreements or provisions herein contained shall be held contrary to any express provision of law
or contrary to the policy of express law, though not expressly prohibited, or against public
policy, or shall for any reason whatsoever 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.
Section 10. Repealing Clause. All resolutions or parts thereof of the
Consolidated Government in conflict with the provisions herein contained are, to the extent of
such conflict, hereby superseded and repealed.
Section 11. Effective Date. This Resolution shall take effect immediately upon
its adoption.
3
t
ADOPTED this 16th day of March, 2004.
(CORPORATE SEAL)
Attest:
AUGUSTA, GEORGIA
() pq - By: ~1~6
() l.r/S Mayor
(]cj)(: '/JCU(j JJ 7>>m~
i~.Clerk
4
"
t
CLERK'S CERTIFICATE
The undersigned Clerk of Augusta, Georgia (the "Consolidated Government"),
DOES HEREBY CERTIFY that the foregoing pages of typewritten matter pertaining to a
Contract relating to $5,555,000 in aggregate principal amount of Augusta-Richmond County
Coliseum Authority Revenue Refunding Bonds, Series 2004, constitute a true and correct copy
of the Resolution unanimously adopted on March 16, 2004, by the commissioners of the
Consolidated Government in a meeting duly called and assembled, which was open to the public
and at which a quorum was present and acting throughout, and that the original of said
Resolution appears of record in the Minute Book of the Consolidated Government which is in
the undersigned's custody and control.
WITNESS my hand and the official seal of Augusta, Georgia, this 16th day of
March, 2004.
Clerk
(CORPORATE SEAL)
"
f
EXHIBIT A
J
CONTRACT
between
AUGUSTA, GEORGIA
and
AUGUSTA-RlCHMOND COUNTY COLISEUM AUTHORITY,
Dated as of March 1, 2004
Relating to $5,555,000
Augusta-Richmond County Coliseum Authority Revenue Refunding Bonds
Series 2004
TillS CONTRACT, made and entered into as of the 15t day of March, 2004, by
and between AUGUSTA, GEORGIA (hereinafter sometimes referred to as the "Consolidated
Government") and the AUGUSTA-RICHMOND COUNTY COLISEUM AUTHORITY
(hereinafter sometimes referred to as the "Authority");
WITNESSETH:
WHEREAS, there has heretofore been created as a body corporate and politic and
deemed to be a political subdivision of the State of Georgia and a public corporation, the Augusta-
Richmond County Coliseum Authority pursuant to the "Augusta-Richmond County Coliseum
Authority Act" (Georgia Laws 1973, p. 3042 et seq., as amended), and the Authority is now legally
existing and operating and its members have entered upon their duties; and
WHEREAS, the Consolidated Government is a consolidated city-county
government and is a political subdivision of the State of Georgia created by laws of the State of
Georgia; and
WHEREAS, the Authority was created for the general purpose "of acquiring,
constructing, equipping, maintaining and operating one or more projects consisting of multi-use
coliseum and civic center type facilities to be used for athletic contests, games, meetings, trade
fairs, expositions, political conventions, agricultural events, theatrical and musical performances,
conventions and other public entertainments, and the usual facilities related thereto, including,
without limitation, refreshment stands and restaurants, and facilities for the purveying of foods,
beverages, publications, souvenirs, novelties, and goods of all kinds, whether operated or purveyed
directly or indirectly through concessions, licenses, leases or otherwise, parking facilities or parking
areas in connection therewith; for acquiring, constructing, equipping, maintaining and operating
recreational centers and areas including, but not limited to, gymnasium and athletic facilities and
related buildings, and the usual and convenient facilities appertaining to such undertakings; the
extension and improvements of such facilities; acquiring the necessary property therefor, both real
and personal, with the right to contract for the use of, or to lease or sell any or all of such facilities,
including real property, and to do any and all things deemed by the Authority necessary, convenient
and desirable for and incident to the efficient and proper development and operation of such types
of undertakings"; and
WHEREAS, the Authority owns and operates a coliseum-civic center, an
auditorium and related facilities (the "Coliseum Complex"); and
WHEREAS, the Authority previously issued $6,380,000 in aggregate principal
amount of its Augusta-Richmond County Coliseum Authority Revenue Refunding Bonds, Series
1993 (the "Series 1993 Bonds"); and
WHEREAS, after careful study and investigation, the Authority has determined
that it is in its best interest to refund the Series 1993 Bonds; and
WHEREAS, in order to refund the Series 1993 Bonds, the Authority will issue
$5,555,000 in aggregate principal amount of its Augusta-Richmond County Coliseum Authority
..
Revenue Refunding Bonds, Series 2004 (the "Series 2004 Bonds") pursuant to resolutions adopted
by the Authority on February 24, 2004 and on March 16, 2004 (the "Bond Resolution") and a Trust
Indenture, dated as of March 1, 2004 (the "Trust Indenture"), between the Authority and Wachovia
Bank, National Association, as trustee (the "Trustee"); and
WHEREAS, the Series 2004 Bonds will be secured by the revenues derived from
the ownership and operation of the Coliseum Complex; and
WHEREAS, as additional security for the Series 2004 Bonds, the Authority and the
Consolidated Government propose entering into this contract; and
WHEREAS, in order to permit the underwriter of the Series 2004 Bonds to comply
with the provisions of Rule 15c2-12(b)(v) promulgated by the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as amended, the Consolidated
Government will execute and deliver a Continuing Disclosure Certificate (the "Continuing
Disclosure Certificate") to be dated the date of issuance of the Series 2004 Bonds; and
WHEREAS, in order to carry out the refunding of the Series 1993 Bonds, the
Authority will enter into an Escrow Deposit Agreement, dated as of March 1, 2004 (the "Escrow
Deposit Agreement"), with Wachovia Bank, National Association, as escrow agent (the "Escrow
Agent");
NOW, THEREFORE, in consideration of the premises and the benefits, covenants
and undertakings hereinafter set forth, it is agreed by the Consolidated Government and the
Authority, each acting by and through its duly authorized officers, pursuant to proceedings duly
adopted and properly passed, as follows:
Section 1. This contract shall become effective as of the date of the issuance and
delivery of the Series 2004 Bonds and shall continue in full force and effect from said date until
February 1, 2010, or until such time as the Series 2004 Bonds and any pari passu bonds or
obligations therewith hereafter issued, as to principal, interest and premium, if any, have been paid
or provision has been duly made therefor, but in no event shall this contract continue in force and
effect for more than 40 years from the date hereof.
Section 2. [Intentionally Omitted].
Section 3. The Authority covenants and agrees that:
(a) The Series 2004 Bonds shall be issued under and shall be secured by the
Trust Indenture. An executed copy of the Trust Indenture has been delivered to the
Consolidated Government.
(b) Simultaneously with the issuance and delivery of the Series 2004 Bonds, it
will deposit with the Escrow Agent a sufficient sum from the proceeds derived from the sale
of the Series 2004 Bonds to pay the cost of acquiring certain direct obligations of the United
States of America which shall be held by the Escrow Agent, and the principal of and
2
income derived from said direct obligations as same mature shall be used and applied
toward the cost of refunding the Series 1993 Bonds now outstanding, all to the extent and in
the manner as more fully set forth in the Escrow Deposit Agreement. An executed copy of
the Escrow Deposit Agreement has been delivered to the Consolidated Government.
( c) It shall cause the Coliseum Complex to be operated and maintained
economically, efficiently and consistent with good business practices, and all moneys of the
Authority derived under this contract and arising out of the ownership and operation of the
Coliseum Complex shall be received, pledged, held, invested, reinvested and disbursed in
the manner set forth in the Trust Indenture, all for the benefit of the owners of the Series
2004 Bonds.
(d) It shall cause the Coliseum Complex to be maintained and operated so as to
make its benefits generally available to the residents of the Consolidated Government and it
shall establish and maintain, or cause to be established and maintained, a schedule of rates,
fees and charges for the use of the facilities constituting the Coliseum Complex. The
Authority shall not permit such facilities to be used without charge therefor.
(e) It shall cause to be prepared in each current fiscal year an annual budget for
each ensuing fiscal year's cost of operating the Authority, debt service requirements and the
cost of operating, maintaining and repairing the Coliseum Complex, and such budget shall
be prepared in reasonable detail. Each such annual budget shall be based on the preceding
fiscal year's revenues and receipts, the cost of operation of the Coliseum Complex, as well
as the cost of operating the Authority and the ensuing year's debt service requirements.
Such budget shall be submitted to the Consolidated Govemment for its review and approval
on or prior to the 30th day subsequent to the close of each fiscal year of the Authority.
Failure of the Authority to make such budget available shall not release the Consolidated
Government from its obligations hereunder, but the Consolidated Government shall have
such remedi~s~~rm!y be.ayailable at law..torequire the_Authority to-produce such-
- ~- .~
documents in reasonable detail and in a timely manner. Within 30 days following the close
of each fiscal year of the Authority, the Authority shall cause an audit to be made of its
books, records, bank accounts, receipts and revenues by a firm of certified public
accountants. The Authority shall furnish copies of said audit to the Consolidated
Government as soon as practicable after receipt of same from said firm of certified public
accountants.
(f) All payments made under the proVISIOns of paragraphs (a) and (b) of
Section 4 hereof shall be paid by the Consolidated Government directly to the Trustee.
Such payments shall not be commingled with any other funds of the Authority and such
moneys so received shall be forthwith deposited into the special fund to be created and
designated in the Trust Indenture as "Augusta-Richmond County Coliseum Authority
Revenue Fund" (hereinafter sometimes referred to as "Revenue Fund") and shall be used
and applied to the extent and in the manner as provided in the Trust Indenture.
3
(g) It shall permit an inspection and audit of all of its books and records by the
Consolidated Government at any reasonable time or times at the Consolidated
Government's expense.
(h) A certified copy of the Bond Resolution has been delivered to the
Consolidated Government.
Section 4. The Consolidated Government covenants and agrees that:
(a) The Consolidated Government shall pay to the Authority at least 20 days
prior to the 1st day of each month until the principal of and interest on the Series 2004
Bonds shall have been paid in full or provision duly made therefor, a sum equal to the
aggregate of the following:
(i) Fifty percent (50%) of the revenues derived by the Consolidated
Government from its six percent (6%) levy on hotel and motel room occupancy
known as the hotel-motel excise tax; and
(ii) Thirty percent (30%) of the revenues derived by the Consolidated
Government from the levy of the beer tax being the amount of said taxes levied as
of the date of this contract.
Said payments shall be made as provided in paragraph (f) of Section 3 hereof directly to the
Trustee under the Trust Indenture for the account of the Authority and deposited into the
special fund designated as "Augusta-Richmond County Coliseum Authority Revenue
Fund."
(b) The Consolidated Government shall, in addition to the payments made as
required to comply with paragraph (a) above, pay to the Authority at least 10 days prior to
February 1 and August I in each year thereafter until the principal of and interest on the
Series 2004 Bonds shall have been paid in full or until provision has been duly made
therefor a sum, if any is required, which when added to the amount then on hand in the
special fund created under the Trust Indenture and designated as "Augusta-Richmond
County Coliseum Authority Sinking Fund" will in the aggregate be sufficient to pay the
principal of and interest on the Series 2004 Bonds coming due on the next ensuing payment
date. Such payments, if any, under this paragraph (b) shall be made directly to the Trustee
for the account of the Authority.
(c) It shall make the payments required to be made pursuant to paragraph (b) of
this Section first from its general funds or out of any other funds lawfully available to it for
such purpose, and to the extent that such funds are not so available to it, then it shall levy an
annual tax beginning with the year 2004 and from year to year thereafter on all taxable
property located within the boundaries of the Consolidated Government, as now existent
and within any extension of said boundaries, at such rate or rates (within the limitation
prescribed by the Constitution of the State of Georgia) as may be necessary to provide
moneys sufficient to fulfill its obligations under paragraph (b) of this Section.
4
(d) Its obligation to make the payments set forth in paragraphs (a) and (b) of this
Section at the times and in the manner specified shall be absolute and unconditional and
such payments shall not be abated or reduced because of damage to or destruction of the
Coliseum Complex, in whole or in part, failure of proper operation and maintenance of the
Coliseum Complex or for any reason whatsoever. Furthermore, it will not exercise any
right of set-off or any other right with respect to such payment nor will it withhold any such
payment for any claimed breach of this contract by the Authority. This provision is made
expressly for the benefit of the owners, from time to time, of the Series 2004 Bonds and
shall not affect the obligation of the Authority to perform under the provisions of this
contract or otherwise, nor shall this provision otherwise affect the remedies available to the
Consolidated Governrnent on account of any such claimed breach.
(e) In order to assure that the Authority will meet the debt service requirements
on the Series 2004 Bonds and to assure the payments by the Consolidated Governrnent
required to comply with the provision of paragraphs (a) and (b) of this Section, there be and
there is hereby created a lien on the revenues received by the Consolidated Governrnent
from (i) that portion of the revenues received by the Consolidated Govemment from the
levy of the hotel-motel tax as of the date of this contract and that portion of the beer tax
levied by the Consolidated Government as of the date of this contract under and pursuant to
the provisions of (a)(i) and (ii) of this Section and (ii) any annual tax levied under and
pursuant to the provisions of paragraph (c) of this Section, which lien is superior to any that
can hereafter be made, except that this lien may be extended to cover any additional parity
bonds with the Series 2004 Bonds that hereafter may be issued.
(t) Should the Consolidated Government desire the use of the facilities
constituting a part of the Coliseum Complex for functions sponsored by the Consolidated
Government, it will pay such reasonable charges for such use as may be established by the
Authority from time to time.
Section 5. The County hereby covenants and agrees that it will comply with and
carry out all of the provisions of the Continuing Disclosure Certificate. Notwithstanding any
other provision of this Indenture, failure of the County to comply with the Continuing Disclosure
Certificate shall not be considered a default or event of default hereunder, and under no
circumstances shall such failure affect the validity or the security for the payment of the Series
2004 Bonds; provided, however, the Trustee may (and, at the request of any Participating
Underwriter (as defined therein) or the holders of at least 25 percent aggregate principal amount
of Outstanding Bonds and upon the provision of indemnity or other security satisfactory to the
Trustee, shall) or any holder of Bonds or Beneficial Owner may take such actions as may be
necessary and appropriate, including seeking mandamus or specific performance by court order,
to cause the County to comply with its obligations under this Section. The cost to the County of
performing its obligations set forth in this paragraph shall be paid solely from funds lawfully
available for such purpose. Nothing contained in this Indenture shall obligate the levy of any tax
for the County's obligations set forth in this paragraph. For purposes of this Section, "Beneficial
Owner" means any person which (a) has the power, directly or indirectly, to vote or consent with
respect to, or to dispose of ownership of, any Bonds (including persons holding Bonds through
5
nominees, depositories, or other intermediaries), or (b) is treated as the owner of any Bonds for
federal income tax purposes.
Section 6. The parties mutually covenant and agree that:
(a) As a part of the undertaking now contemplated, the Authority will be under
obligation to meet the principal and interest requirements of the Series 2004 Bonds, and the
revenues to be derived under the provisions of paragraphs (a) and (b) of Section 4 of this
contract, as well as any other revenues received by the Authority shall be irrevocably
pledged to the payment of the principal of and interest on the Series 2004 Bonds as same
become due and payable, either at maturity or by proceedings for mandatory redemption, to
the extent and in the manner to be provided in the Trust Indenture.
(b) This contract has been made for the benefit of the owners from time to time
of the Series 2004 Bonds and may not be changed, amended, cancelled or terminated in any
way which would adversely affect the rights or interests of such bondholders without their
consent.
(c) This contract shall be pledged, assigned and set over by the Authority to the
Trustee for the benefit of the owners from time to time of the Series 2004 Bonds, and the
Consolidated Government shall make all payments required to be made pursuant to the
provisions of paragraphs (a) and (b) of Section 4 hereof directly to the Trustee for the
account of the Authority as herein provided.
(d) Moneys paid to the Trustee derived from the payments required to be made
to comply with paragraph ( a) of Section 4 hereof in excess of the amounts required to meet
the debt service requirements on the Series 2004 Bonds will be used and applied pursuant to
the terms of the Indenture to assure the continuous operation of the Authority and to pay the
reasonable and necessary costs of operating, maintaining and repairing the Coliseum
Complex, as well as to create and maintain a reserve for improvements and extensions.
This Section does not in any manner obligate the Consolidated Government to appropriate
or commit any further revenue services to the Authority other than as herein described.
( e) It is expressly provided that should it be determined ,advisable to raise
additional funds at some later date or dates for the purpose of adding to, extending,
improving or equipping the Coliseum Complex, the Authority may issue additional revenue
bonds or obligations ranking as to lien on the revenues of the Authority pari passu with the
Series 2004 Bonds and a new contract or supplemental agreement to this contract may be
entered into between the parties hereto to that effect, and the lien on revenues created
hereunder as the security for the payment of the Series 2004 Bonds will be extended and
broadened to include the payment of the debt service on each such issue or issues of parity
bonds or obligations.
(f) That "debt service requirements" shall mean the amount required in each
sinking fund year to pay the principal of and the interest on the Series 2004 Bonds as same
become due and payable, either at maturity or by proceedings for mandatory redemption.
6
(g) During the term of this contract the Authority, its successors or assigns, shall
not conveyor give away, sell or in any wise alienate any portion of the Coliseum Complex
without the written approval of the governing authority of the Consolidated Government.
(h) When the Series 2004 Bonds and any parity bonds or obligations therewith
shall have been fully paid as to interest, principal and premium, if any, or provision shall
have been duly made therefor as provided in the Trust Indenture, the Consolidated
Government shall be relieved of any obligations to make further payments hereunder,
except to the extent of any payments then due the Consolidated Government and unpaid
under the provisions hereof.
(i) If any disagreement shall arise between the parties hereto with reference to
any of the terms, covenants and provisions of this contract, or with reference to any matter
connected with same, except as to the payments required to be made by the Consolidated
Government pursuant to the provisions of paragraphs (a) and (b) of Section 4 hereof, which
shall be absolute and unconditional, such disagreement or dispute immediately shall be
submitted and decided by arbitrators. Each party shall appoint one arbitrator and the two so
appointed shall select three additional arbitrators and three of the five so chosen shall
control and their decision in the matter shall be binding on the parties thereto; provided,
however, that if the two arbitrators first chosen cannot agree on three additional arbitrators,
such three additional arbitrators shall be appointed by one of the judges of the Superior
Court of Augusta, Georgia by application of any of the parties thereto. The submission of
such disagreement or disputes to arbitration shall be a condition precedent to any action
before any court oflaw or equity. It is further expressly provided, however, that each of the
parties hereto shall have the right to protect its rights and interests and to seek such
remedies and relief as provided by law, it being the intent hereof, that this provision is
primarily for the benefit of the third party beneficiaries of this contract, to-wit: the owners
of the Series 2004 Bonds and any parity obligations therewith.
G) Should any phrase, clause, sentence or paragraph of this contract be held to
be invalid, unconstitutional or unenforceable it shall in no wise affect the remaining
provisions of this contract, which said provisions shall remain in full force and effect, and if
any provision hereof shall be held invalid, unconstitutional or unenforceable as to the
Consolidated Government, it shall in no wise affect its application to the other.
Section 7. Ambac Provisions.
(a) The Authority and the Consolidated Government shall send Ambac, at no
cost to Ambac, to the attention of the Surveillance Department, upon request, a copy of any
[mancial statement, audit and/or annual report of the Authority or the Consolidated Government, as
appropriate and such additional information as Ambac may reasonably request.
(b) The Authority and the Consolidated Government shall permit Ambac to
discuss the affairs, finances and accounts of the Authority and the Consolidated Government, as
appropriate, or any information Ambac may reasonably request regarding the security for the Series
7
2004 Bonds with the appropriate officers of the Authority or the Consolidated Government, as
appropriate. The Authority shall permit Ambac to have access to the Coliseum Complex and to
make copies of all books and records relating to the Series 2004 Bonds at any reasonable time.
(c) To the extent that this Contract confers or gives or grants to Ambac any
right, remedy or claim under or by reason of this Contract, Ambac is hereby explicitly recognized as
being a third-party beneficiary hereunder and may enforce any such right, remedy or claim
conferred, given or granted hereunder.
8
IN WITNESS WHEREOF, the parties hereto, acting by and through their duly
authorized officers, pursuant to authorizing proceedings duly taken, have caused this contract to be
executed in several counterparts, each of which may be considered an original without the
presentation of the other, as of the day and year first above written.
AUGUSTA-RICHMOND COUNTY
COLISEUM AUTHORITY
(SEAL)
By:
Chairman
Attest:
Secretary
(Contract)
(SEAL)
Attest:
Clerk
AUGUSTA, GEORGIA
By:
Mayor
(Contract)
$5,555,000
AUGUSTA-RICHMOND COUNTY COLISEUM AUTHORITY
REFUNDING REVENUE BONDS,
SERIES 2004
BOND PURCHASE AGREEMENT
March 16,2004
Augusta-Richmond County Coliseum Authority
Augusta, Georgia
Augusta-Richmond County Commission
Augusta, Georgia
Ladies and Gentlemen:
The undersigned, Banc of America Securities LLC (the "Underwriter"), hereby offers to
enter into this Bond Purchase Agreement with the Augusta-Richmond County Coliseum
Authority (the "Authority") and Augusta, Georgia (the "Consolidated Government") for the
purchase by the Underwriter and the sale by the Authority of $5,555,000 in aggregate principal
amount of the Authority's Refunding Revenue Bonds, Series 2004 (the "Series 2004 Bonds").
This offer is made subject to acceptance by the Authority and the Consolidated Government of
this Bond Purchase Agreement, which acceptance shall be evidenced by the execution of this
Bond Purchase Agreement by the authorized officers of the Authority and the Consolidated
Government prior to 10 p.m., Eastern Time, on the date hereof. Upon such acceptance and
execution, this Bond Purchase Agreement shall be in full force and effect in accordance with its
terms and shall be binding upon the Authority, the Consolidated Government and the
Underwriter. The Underwriter may withdraw this offer by written notice to the Authority and
the Consolidated Government at any time prior to acceptance.
1. Aereement to Purchase and Sell. On the basis of the representations and
agreements contained herein, but subject to the terms and conditions herein set forth, the
Underwriter hereby agrees to purchase from the Authority and the Authority hereby agrees to
sell to the Underwriter $5,555,000 aggregate principal amount of the Authority's Refunding
Revenue Bonds, Series 2004 at a purchase price of $5,560,003.57 (which is equal to the par.
amount of the Series 2004 Bonds, less Underwriter's discount of $55,304.28, plus net original
issue premium of $60,307.85), plus accrued interest on the Series 2004 Bonds from (and
including) the date thereof to (but not including) the Closing Date (as hereinafter defined).
The Authority shall deliver the Series 2004 Bonds to the Underwriter in good, deliverable
and definitive form against payment of the purchase price therefor in immediately available
funds at the offices of Murray Barnes LLP, Atlanta, Georgia, at 10 a.m., local time on March 31,
AO 1085751.2
2004, or at such other time or place as the Authority, the Consolidated Government and the
Underwriter rnutually agree upon, such time being hereinafter referred to as the "Closing" or the
"Closing Date." The Series 2004 Bonds will be made available for inspection and packaging by
the Underwriter at least 24 hours prior to the Closing.
Pursuant to this Bond Purchase Agreement, it shall be a condition of the Authority's
obligation to sell simultaneously all of the Series 2004 Bonds to the Underwriter and the
Underwriter's obligation to purchase all of the Series 2004 Bonds, that the entire principal
amount of the Series 2004 Bonds shall be delivered by the Authority and accepted and paid for
by the Underwriter at the Closing.
2. Description of the Series 2004 Bonds. The Series 2004 Bonds were approved
by and are being issued pursuant to (i) a Bond Resolution adopted by the Authority on
February 24,2004, as supplemented by a resolution adopted on March 16, 2004 (collectively, the
"Resolution"), (ii) an Act of the Georgia General Assembly creating the Authority, as amended,
(iii) the Revenue Bond Law of the State of Georgia, as amended and (iv) a Trust Indenture, dated
as of March 1, 2004 (the "Indenture"), between the Authority and Wachovia Bank, National
Association, as trustee (the "Trustee"). Pursuant to a Contract, dated as of March I, 2004 (the
"Contract"), between the Consolidated Government and the Authority, the Consolidated
Government has agreed to remit to the Trustee monthly, for the account of the Authority:
(1) 50 percent of the Hotel-Motel Excise Tax levied at a rate of six percent of charges for public
accommodations, upon hotels (the "Hotel Tax") operating in the Consolidated Government
collected during the preceding month, provided that if the rate of levy of the H~tel Tax is
hereafter increased above six percent, the Consolidated Government shall only be obligated to
pay to the Authority 50 percent of the first six percent, (2) 30 percent of the Beer Tax, which is
an excise tax upon the sale of malt beverages (the "Beer Tax") in the Consolidated Government,
collected during the preceding month, and (3) other amounts payable by the Consolidated
Government under the Contract to be paid from the Consolidated Government's general funds or
out of any other funds lawfully available to the Consolidated Government to pay the principal of
and interest on the Bonds, or from the levy of an ad valorem tax on all taxable property in the
Consolidated Government to the extent that the amounts hereinabove set forth are insufficient to
pay the principal of and interest on the Bonds coming due on the next interest payment date.
Pursuant to the Indenture, the Authority has pledged its rights under the Contract and the
payments due thereunder as security for the Series 2004 Bonds. The Series 2004 Bonds will be
dated March 1, 2004, will bear interest at the rates and mature on the dates set forth in Exhibit A
hereto and otherwise be as described in the Resolution and the Indenture. A portion of the
proceeds of the Series 2004 Bonds will be deposited with Wachovia Bank, National Association,
as Escrow Agent under an Escrow Deposit Agreement, dated as of March 1, 2004 (the "Escrow
Agreement"), between the Authority and the Escrow Agent and used to refund all of the
Authority's outstanding Revenue Bonds, Series 1993, now outstanding in the aggregate principal
amount 0[$5,470,000 (the "Refunded Bonds").
Pursuant to a resolution adopted by the Augusta-Richmond County Commission on
March 2, 2004, as supplemented by a resolution adopted March 16, 2004 (collectively, the
"Consolidated Government Resolution"), the Consolidated Government (a) consented to the
Authority's issuance of the Series 2004 Bonds for the purposes described in the Official
-2-
AO 1085751.2
Statement, (b) authorized the Consolidated Government's execution, delivery and performance
of the Contract, (c) authorized the execution, delivery of this Bond Purchase Agreement and the
Escrow Agreement, (d) approved the use of the Official Statement, and ( e) authorized the
Consolidated Government's execution, delivery and performance of the Continuing Disclosure
Certificate executed and delivered by the Authority and the Consolidated Government as of the
date of issuance and delivery ofthe Series 2004 Bonds (the "Disclosure Certificate").
The payment of the principal of and interest on the Series 2004 Bonds when due will be
insured by a financial guaranty insurance policy (the "Bond Insurance Policy") to be issued by
Ambac Assurance Corporation (the "Bond Insurer").
3. Public Offerine. The Underwriter intends to make a public offering of all of the
Series 2004 Bonds at offering prices not in excess of the offering prices set forth on Exhibit A.
The Underwriter reserves the right to change such offering prices as the Underwriter shall deem
necessary in connection with the marketing of the Series 2004 Bonds and the right to join with
dealers and other underwriters in offering the Series 2004 Bonds to the public. The Underwriter
also reserves the right to over-allot or effect transactions that stabilize or maintain the market
price of the Series 2004 Bonds at levels above that which might otherwise prevail in the open
market and to discontinue such stabilization, if commenced, at any time.
4. Preliminary Official Statement: Official Statement. The Authority and the
Consolidated Government have caused to be prepared and circulated by the Underwriter a
Preliminary Official Statement relating to the Series 2004 Bonds, dated March 4, 2004 (such
Preliminary Official Statement, including the cover page and all appendices, exhibits, reports and
statements included therein or attached thereto and any amendments and supplements thereto
that may be authorized by the Authority or the Consolidated Government for use with respect to
the Series 2004 Bonds being herein called the "Preliminary Official Statement"), and the
Authority and the Consolidated Government did designate the Preliminary Official Statement as
a "deemed final" Preliminary Official Statement as required by Rule 15c2-12 of the Securities
and Exchange Commission (the "SEC") and does hereby consent to and ratify the use of the
Preliminary Official Statement by the Underwriter prior to the date hereof in connection with the
offering of the Series 2004 Bonds. The Authority hereby agrees to furnish the Underwriter with
a final Official Statement (the "Official Statement"), in form satisfactory to the Underwriter
within seven business days of the date hereof and in time to accompany any confirmation that
requests payment from any customer, and in sufficient quantity to comply with Rule 15c2-
12(b)(4) of the SEC and the rules of the Municipal Securities Rulemaking Board (the "MSRB").
The preparation, use and distribution of the Preliminary Official Statement and the Official
Statement are hereby authorized and approved by the Authority. The Authority hereby
authorizes the use of copies of the Official Statement and other pertinent documents in
connection with the offering and sale of the Series 2004 Bonds. The Underwriter hereby agrees
not to distribute or make any use of any official statement relating to the Series 2004 Bonds other
than the Official Statement unless such official statement contains a cover page that sets forth the
name of the Underwriter. The Authority and the Consolidated Government agree to supplement
the Official Statement whenever requested by the Underwriter pursuant to Section 5(m) or
Section 6(i). The reasonable cost of any such supplementation required within 90 days of the
-3-
AO 1085751.2
Closing of the purchase of the Series 2004 Bonds by the Underwriter shall be borne by the
Authority.
5. Representations. Warranties and Covenants of the Authority. The Authority
represents and warrants to the Underwriter that:
(a) The Authority is, and at the Closing Date will be, a public body corporate and
politic of the State of Georgia, duly created and validly existing pursuant to the provisions of
1973 Ga. Laws 3042 to 3059, inclusive, as amended by 1974 Ga. Laws 3207 to 3211, inclusive,
1975 Ga. Laws 4681 to 4687, inclusive, 1977 Ga. Laws 3300 to 3303, inclusive, 1978 Ga. Laws
4673 to 4675, inclusive, and 1993 Ga. Laws 4087 to 4091, inclusive (collectively, the "Act"),
and the Chairman and the members of the Authority have been duly appointed to their respective
positions. The Authority has the power and authority to issue the Series 2004 Bonds pursuant to
the Constitution and laws of the State of Georgia, particularly Title 36, Chapter 82, Article 1 of
the Official Code of Georgia Annotated (the "Revenue Bond Law").
(b) The Authority will undertake, pursuant to the Disclosure Certificate, to provide
certain financial information and operating data relating to the Coliseum Complex (as defined in
the Indenture) and notice of certain events to each Nationally Recognized Municipal Securities
Information Repository, in order to assist the Underwriter in complying with Securities and
Exchange Commission Rule 15c2-12(b)(5).
(c) The information contained in the Preliminary Official Statement and in the
Official Statement, and in any amendment or supplement that may be authorized for use by the
Authority with respect to the Series 2004 Bonds is, and as of the Closing Date and the End of the
Underwriting Period (as determined in paragraph (m) of this Section 5) will be, complete,
accurate, true, and correct and does not contain and will not contain any untrue statement of a
material fact and does not omit and will not omit to state a material fact required to be stated
therein or necessary in order to make the statements therein made, in light of the circumstances
under which they were made, not misleading. The Authority consents to the use of the final
Official Statement by the Underwriter to offer and sell the Series 2004 Bonds.
(d) Between the date hereof and the Closing Date, the Authority will not issue any
bonds, notes or other obligations for borrowed money or authorize the transfer of, or the sale of
any interest in, any rights of the Authority to receive any payments from others; and subsequent
to the respective dates as of which information is given in the Official Statement and up to and
including the date of Closing, the Authority has not incurred and will not incur with respect to its
ownership of the Coliseum Complex any material liabilities other than those occurring in the
ordinary course of owning the Coliseum Complex and the construction of improvements thereto,
direct or contingent, nor will there be any adverse change of a material nature in the financial
position, results of operations or condition, financial or otherwise, of the Authority or the
Coliseum Complex, except as described in the Official Statement.
(e) When delivered to and paid for by the Underwriter at the Closing in accordance
with the provisions of this Bond Purchase Agreement, the Series 2004 Bonds will have been duly
authorized, executed, issued and delivered and will constitute valid and binding obligations of
-4-
AO 1085751.2
the Authority In conformity with Georgia law, including the Revenue Bond Law and the
Resolution.
(f) Both at the time of the Authority's acceptance hereof and at the Closing Date, the
Authority has and will have the legal right, power and authority (i) to adopt the Resolution
authorizing the issuance of and awarding the sale of the Series 2004 Bonds, (ii) to execute and
deliver the Contract, the Indenture, the Escrow Agreement, this Bond Purchase Agreement and
the Disclosure Certificate, (iii) to issue, sell and deliver the Series 2004 Bonds to the Underwriter
as provided herein, and (iv) to carry out and consummate all other transactions contemplated by
this Bond Purchase Agreement and the Official Statement. The Authority is not in breach of or
default under any applicable law or administrative regulation of the State of Georgia or the
United States of America, or any applicable judgment or decree, or of any indenture, loan
agreement, note, resolution or other agreement or instrument to which the Authority is a party or
is otherwise subject, which breach or default would in any way materially adversely affect the
Authority's ownership of the Coliseum Complex, the performance of the Contract or the
Indenture, the refunding of the Refunded Bonds, the authorization or issuance of the Series 2004
Bonds or the adoption of the Resolution, and no event has occurred and is continuing, which
with the passage of time or the giving of notice or both, would constitute such a breach or
default. All actions in connection with the issuance of the Series 2004 Bonds including the
execution and delivery of this Bond Purchase Agreement, the Escrow Agreement, the Indenture,
the Contract or the Disclosure Certificate, are in full force and effect, have not been repealed, do
not violate any applicable law or administrative regulation of the State of Georgia or of any
department, division, agency or instrumentality thereof or of the United States, or any applicable
judgment or decree to which the Authority is subject or conflict with or constitute a breach of or
default under any indenture, loan agreement, note, resolution or other agreement or instrument to
which the Authority is a party or is otherwise subject. The Authority has not received any
judicial or administrative notice which in any way questions the tax-exempt status of interest on
the Series 2004 Bonds or the Refunded Bonds and has not been notified of any listing or
proposed listing of it by the Internal Revenue Service as a bond issuer whose arbitrage
certifications may not be relied upon.
(g) The Resolution has been duly adopted by the Authority and is in full force and
effect, and the Contract, the Indenture, the Escrow Agreement, this Bond Purchase Agreement
and the Disclosure Certificate constitute legal, valid and binding obligations of the Authority,
enforceable against the Authority in accordance with their respective terms, except as
enforceability thereof may be limited by bankruptcy, insolvency or other laws affecting
creditors' rights generally.
(h) The Authority has duly and validly authorized all necessary action to be taken by
it for: (i) the execution, delivery and due performance of the Series 2004 Bonds, the Contract,
the Indenture, the Escrow Agreement, this Bond Purchase Agreement, and the Disclosure.
Certificate, (ii) the passage and approval of the Resolution, (iii) the distribution and use of the
Preliminary Official Statement and execution, delivery and distribution of the final Official
Statement, (iv) the taking of any and all action as may be required on the part of the Authority to
carry out, give effect to and consummate the transactions contemplated by such instruments and
(v) the issuance and the sale of the Series 2004 Bonds upon the terms set forth herein and in the
-5-
AO 1085751.2
Indenture. All approvals, consents and orders, if any, of any governmental authority or agency
having jurisdiction in the matter which would constitute a condition precedent to the
performance by the Authority of its obligations under the Series 2004 Bonds, the Contract, the
Indenture, the Escrow Agreement, this Bond Purchase Agreement and the Disclosure Certificate
have been obtained and are in full force and effect, including the completion of the validation
proceedings with respect to the Series 2004 Bonds.
(i) The Authority will apply the proceeds from the sale of the Series 2004 Bonds as
specified in the Indenture and the Official Statement.
(j) Except as set forth in the Official Statement, there is no action, suit, proceeding,
inquiry or investigation, at law or in equity, before or by any court, public board or body pending
with respect to which service or notice on the Authority has been perfected or given or, to the
knowledge of the Authority, threatened against or affecting the Authority (i) wherein an
unfavorable decision, ruling or finding would materially and adversely affect (A) the existence or
powers of the Authority; (B) the transactions contemplated hereby or by the Official Statement;
or (C) the validity and binding effect of the Series 2004 Bonds, the Resolution, the Contract, the
Indenture, the Escrow Agreement, this Bond Purchase Agreement, the Disclosure Certificate or.
any agreement or instrument to which the Authority is a party and which is used or contemplated
for use in the consummation of the transactions contemplated hereby or by the Official
Statement; or (D) the imposition or collection of fees and charges for the use of the Coliseum
Complex; or (E) the right, power and authority of the Authority to collect the Contract Payments
and the obligation of the Consolidated Government to make the Contract Payments; or (ii) which
might result in any material adverse change in the operations, properties, assets, liabilities, or
condition (financial or other) of the Coliseum Complex, or which affects the information
contained in the Official Statement.
(k) Neither the Authority nor anyone acting on its behalf has, directly or indirectly,
offered the Series 2004 Bonds or any similar securities of the Authority for sale to, or solicited
any offer to buy the same from, anyone other than the Underwriter.
(1) The Authority has deemed the Preliminary Official Statement to be final except
for certain information allowed to be omitted pursuant to Rule 15c2-12.
(m) The Authority agrees to notify the Underwriter for a period of 90 days following
the "End of the Underwriting Period" of any event that has a material adverse change in the
operations, properties or condition (financial or otherwise) of the Coliseum Complex and of any
event which occurs and comes to the Authority's attention, which event materially and adversely
affects the Authority, the Consolidated Government, or the transactions contemplated by the
Official Statement and which would cause the Official Statement to contain an untrue statement
of a material fact or to omit to state a material fact which should be included therein for the
purposes for which the Official Statement was to be used or which is necessary in order to make
the statements therein, in light of the circumstances under which they were made, not
misleading, and, if in the opinion of the Underwriter, a change in the information contained in
the Official Statement is required in order to make the statements therein made true and not
misleading or to make the Official Statement comply with any applicable state securities law in
-6-
AO 1085751.2
connection with the offering of the Series 2004 Bonds, such change shall be made, and the
corrected information shall be supplied to the Underwriter in sufficient quantity for distribution
to the purchasers of the Series 2004 Bonds. If such change occurs subsequent to the Closing, the
Authority shall furnish to the Underwriter such legal opinions, certificates, instruments, and
documents as the Underwriter may reasonably request to evidence the truth and accuracy of such
corrected information. Thereafter, this Bond Purchase Agreement shall refer to such corrected
information. For purposes of this paragraph, the term "end of the underwriting period" means
the date the Underwriter no longer retains, directly or as a member of an underwriting syndicate,
an unsold balance of the Series 2004 Bonds for sale to the public. Upon request, the Underwriter
shall notify the Authority in writing of the date that the underwriting period ends.
(n) Any certificate signed by an authorized officer of the Authority delivered to the
Underwriter shall be deemed a representation and warranty by the Authority to the Underwriter
as to the truth of the statements made therein.
(0) To the best knowledge of the Authority, no legislation, ordinance, rule, or
regulation has been enacted by any governmental body, department, or agency of the State of
Georgia nor has any decision been rendered by any court of competent jurisdiction in the State of
Georgia, which would materially and adversely affect the transactions contemplated by the
Official Statement.
(P) Subsequent to the respective dates as of which information is given in the Official
Statement, and prior to the Closing Date, except as set forth in or contemplated by the Official
Statement, (1) the Authority has not incurred and shall not have incurred any material liabilities
or obligations relating to the Coliseum Complex, direct or contingent, except in the ordinary
course of business, and has not entered and will not have entered into any material transaction
relating to the Coliseum Complex not in the ordinary course of business, (2) there has not been
and will not have been any increase in the long-term debt or decrease in the fund equity of the
Authority, (3) to the best knowledge of the Authority, after due inquiry, there has not been and
will not have been any material adverse change in the business or the financial position or results
of operations of the Coliseum Complex, (4) to the best knowledge of the Authority, after due
inquiry, no loss or damage (whether or not insured) to the Coliseum Complex has been or will
have been sustained which materially and adversely affects the operations of the Coliseum
Complex, and (5) to the best knowledge of the Authority, after due inquiry, no legal or
governmental proceeding affecting the Coliseum Complex or the transactions contemplated by
this Bond Purchase Agreement has been or will have been instituted or threatened which is
material.
(q) The Authority has good and marketable title to the Coliseum Complex and the
owners of the Series 2004 Bonds will have a valid and effective first priority lien on the Contract
Payments.
(r) The Authority acknowledges and agrees that these representations and warranties
are made to induce the Underwriter to purchase the Series 2004 Bonds, and that such
representations and warranties and any other representations and warranties made by the
-7-
AO 1085751.2
Authority to the Underwriter are made for the benefit of the ultimate purchasers of the Series
2004 Bonds and may be relied upon by such purchasers.
(s) To the best of the Authority's knowledge, the Authority has never defaulted on
any of its debt obligations.
6. Representations. Warranties and Covenants of the Consolidated
Government. The Consolidated Government represents and warrants to the Underwriter that:
(a) The Consolidated Government is, and at the Closing Date will be, a political
subdivision of the State of Georgia, legally created and validly existing, with the power and
authority to execute and deliver and to perform its obligations under the Contract pursuant to the
Constitution and laws of the State of Georgia, particularly Article IX, Section II, Paragraph III
and Article IX, Section III, Paragraph I of the Constitution of the State of Georgia and O.C.G.A.
Section 48-5-220, and the Consolidated Government Resolution. The Contract conforms to the
description thereof contained in the Official Statement; is a valid, binding and enforceable
obligation of the Consolidated Government; and the Contract Payments are payable from the
Hotel Tax, the Beer Tax, the general funds of the Consolidated Government and the proceeds of
a general tax, to the extent and in the manner provided in the Contract, and the Consolidated
Government's obligation to 'make the Contract Payments is a contractual obligation of the
Consolidated Government secured by a pledge of its full faith and credit and taxing power, all as
provided in the Contract.
(b) The Consolidated Government will undertake, pursuant to the Disclosure
Certificate, to provide certain financial information and operating data relating to the
Consolidated Government and notice of certain events to each Nationally Recognized Municipal
Securities Information Repository, in order to assist the Underwriter in complying with
Securities and Exchange Commission Rule 15c2-12(b)(5).
(c) The information relating to the Consolidated Government contained in the
Preliminary Official Statement and the Official Statement, and in any amendment or supplement
that may be authorized for use by the Consolidated Government with respect to the Series 2004
Bonds, including the information contained in Appendices Band D, is, and as of the Closing
Date and the end of the underwriting period (as determined in Section 5(m)) will be, complete,
accurate, true, and correct and does not and will not misstate any material fact and does not omit
and will not omit to state a material fact required to be stated therein or necessary in order to
make the statements therein made, in light of the circumstances under which they were made, not
misleading. The Consolidated Government consents to the use of the Official Statement by the
Underwriter to offer and sell the Series 2004 Bonds.
(d) Between the date hereof and the Closing Date, the Consolidated Government will
not issue any certificates, bonds or other obligations for borrowed money payable from the funds
pledged for the payment of the Contract Payments, including the Hotel Tax and the Beer Tax,
and subsequent to the respective dates as of which information is given in the Official Statement
and up to and including the date of Closing, the Consolidated Government has not incurred and
will not incur with respect to (i) funds pledged for the payment of the Contract Payments, or
-8-
AO 1085751.2
(ii) the Consolidated Government as a whole, any material liabilities other than those occurring
in the ordinary course of the operation of the Consolidated Government, direct or contingent, nor
is there as of the date hereof nor will there be on or prior to the Closing any adverse change of a
material nature in the financial position, results of operations or condition, financial or otherwise,
of the Consolidated Government as a whole, except as described in the Official Statement.
(e) Both at the time of the acceptance hereof by the Consolidated Government and
the Authority and at the Closing Date, the Consolidated Government has and will have the legal
right, power and authority (i) to adopt the Consolidated Government Resolution, (ii) to execute
and deliver the Contract, this Bond Purchase Agreement and the Disclosure Certificate and (iii)
to carry out and consummate the transactions contemplated to be taken by the Consolidated
Government by each of the aforesaid documents, the Contract and the Official Statement. The
Consolidated Government is not in breach of or default under any applicable law or
administrative regulation of the State of Georgia or the United States of America, or any
applicable judgment or decree, or any indenture, loan agreement, note, resolution or other
agreement or instrument to which the Consolidated Government is a party or is otherwise
subject, which breach or default would in any way materially adversely affect the operation of
the Consolidated Government as a whole, and no event has occurred and is continuing, which
with the passage of time or the giving of notice or both, would constitute such a breach or
default. Compliance with the provisions of the Contract and the approval of the other actions in
connection with the transactions contemplated hereby, including the execution, delivery and
performance of this Bond Purchase Agreement and the Disclosure Certificate, do not violate any
applicable law or administrative regulation of the State of Georgia or of any department,
division, agency or instrumentality thereof or of the United States, or any applicable judgment or
decree to which the Consolidated Government is subject or conflict with or constitute a breach of
or default under any indenture, loan agreement, note, resolution or other agreement or instrument
to which the Consolidated Government is a party or is otherwise subject. The Consolidated
Government has not received any judicial or administrative notice which in any way questions
the tax-exempt status of interest on the Series 2004 Bonds or the Refunded Bonds or any other
tax-exempt obligations heretofore issued by the Consolidated Government.
(f) The Consolidated Government Resolution has been duly adopted by the Augusta-
Richmond County Commission, is in full force and effect and constitutes the legal, valid and
binding act of the Consolidated Government, and the Contract, this Bond Purchase Agreement
and the Disclosure Certificate constitute legal, valid and binding obligations of the Consolidated
Government, enforceable against the Consolidated Government in accordance with their
respective terms, except as enforceability thereof may be limited by bankruptcy, insolvency or
other laws affecting creditors' rights generally.
(g) Except as set forth in the Official Statement, there is no action, suit, proceeding,
inquiry or investigation, at law or in equity, before or by any court, public board or body pending
with respect to which service or notice on the Consolidated Government has been perfected or
given or, to the knowledge of the Consolidated Government, threatened against or affecting the
Consolidated Government (i) wherein an unfavorable decision, ruling or finding would
materially and adversely affect (A) the existence or powers of the Consolidated Government;
(B) the transactions contemplated hereby or by the Official Statement; (C) the validity of the
-9-
AO 1085751.2
Contract, this Bond Purchase Agreement, the Disclosure Certificate or any other agreement or
instrument to which the Consolidated Government is a party and which is used or contemplated
for use in the consummation of the transactions contemplated hereby or by the Official
Statement; or (D) or the right, power and authority of the Consolidated Government to levy and
impose the Hotel Tax and the Beer Tax; or (E) the levy and collection of an ad valorem tax by
the Consolidated Government, to the extent necessary to make the Contract Payments; or (ii)
which might result in any material adverse change in the operations, properties, assets, liabilities,
or condition (financial or other) of the Consolidated Government, or which affects the
information relating to the Consolidated Government contained in the Official Statement,
including specifically in Appendices B and D thereto.
(h) The Consolidated Government has approved the Preliminary Official Statement
which has been delivered by the Authority to the Underwriter, and the Consolidated Government
has deemed the Preliminary Official Statement to be final with respect to the information relating
to the Consolidated Government contained therein, except for certain information allowed to be
omitted pursuant to Rule 15c2-12.
(i) The Consolidated Government agrees to notify the Underwriter for a period of
90 days following the "end of the underwriting period" (as defined in Section 5(m)) of any event
that has a material adverse change in the operations, properties or condition (financial or
otherwise) of the Consolidated Government and of any event which occurs and comes to the
Consolidated Government's attention, which event materially and adversely affects the
Consolidated Government or the transactions contemplated by the Official Statement and which
would cause the Official Statement to contain an untrue statement of a material fact or to omit to
state a material fact which should be included therein for the purposes for which the Official
Statement was to be used or which is necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading, and, if in the opinion of the
Underwriter, a change in the information contained in the Official Statement is required in order
to make the statements therein made true and not misleading or to make the Official Statement
comply with any applicable state securities law in connection with the offering of the Series
2004 Bonds, such change shall be made, and the corrected information shall be supplied to the
Underwriter in sufficient quantity for distribution to the purchasers of the Series 2004 Bonds. If
such change relating to the Consolidated Government and the information with respect to the
Consolidated Government contained in the Official Statement occurs subsequent to the Closing,
the Consolidated Government shall furnish to the Underwriter such legal opinions, certificates,
instruments, and documents as the Underwriter may reasonably request to evidence the truth and
accuracy of such corrected information. Thereafter, this Bond Purchase Agreement shall refer to
such corrected information.
(j) Any certificate signed by an authorized officer of the Consolidated Government
delivered to the Underwriter shall be deemed a representation and warranty by the Consolidated
Government to the Underwriter as to the truth of the statements made therein.
(k) To the best knowledge of the Consolidated Government, no legislation,
ordinance, rule, or regulation has been enacted by any governmental body, department, or
agency of the State of Georgia nor has any decision been rendered by any court of competent
-10-
AO 1085751.2
jurisdiction in the State of Georgia, which would materially and adversely affect the transactions
contemplated by the Official Statement.
(1) Subsequent to the respective dates as of which information is given in the Official
Statement, and prior to the Closing Date, except as set forth in or contemplated by the Official
Statement, (i) the Consolidated Government has not incurred and shall not have incurred any
material liabilities or obligations, direct or contingent, except in the ordinary course of business,
and has not entered and will not have entered into any material transaction not in the ordinary
course of business, (ii) there has not been and will not have been any material adverse change in
the business or the financial position or results of operations of the Consolidated Government's
general fund, and (iii) no legal or governmental proceeding affecting the Consolidated
Government or the transactions contemplated by this Bond Purchase Agreement has been or will
have been instituted or threatened which is material.
(m) The Consolidated Government acknowledges and agrees that the Underwriter is
purchasing the Series 2004 Bonds based primarily on the creditworthiness of the Consolidated
Government, and that these representations and warranties are made to induce the Underwriter to
purchase the Series 2004 Bonds, and that such representations and warranties and any other
representations and warranties made by the Consolidated Government to the Underwriter are
made for the benefit of the ultimate purchasers of the Series 2004 Bonds and may be relied upon
by such purchasers.
(n) To the best of the Consolidated Government's knowledge, the Consolidated
Government has never defaulted on any of its debt obligations.
7. Conditions to Closine. The Underwriter's obligation to purchase and pay for the
Series 2004 Bonds is subject to the accuracy of the representations and warranties of the
Authority and the Consolidated Government herein as of the date hereof and as of the Closing
Date, to the accuracy of statements to be made on behalf of the Authority and the Consolidated
Government hereunder, to the performance by the Authority and the Consolidated Government
of its and their obligations hereunder and to the following additional conditions:
(a) The Official Statement, this Bond Purchase Agreement, the Disclosure
Certificate, the Disclosure Certificate, the Resolution, the Consolidated Government Resolution,
the Escrow Agreement, the Indenture and the Contract shall have been duly authorized, executed
and delivered by the parties thereto and shall be in full force and effect, shall conform to the
descriptions thereof in the Official Statement, and shall not have been amended, modified or
supplemented except as may have been agreed to in writing by the Underwriter, the proceeds of
the Series 2004 Bonds shall be deposited and applied as described in the Indenture, and the
Authority shall have duly adopted and there shall be in full force and effect such additional
resolutions as shall, in the opinion of Murray Barnes LLP, as Bond Counsel, be necessary or
appropriate in connection with the transactions contemplated hereby.
(b) The decree of the Superior Court of Richmond County validating the Series 2004
Bonds shall be in full force and effect, and there shall be no appeals pending with respect to such
decree.
-11-
AO 1085751.2
( c) The Authority shall have duly authorized, executed and delivered the Series 2004
Bonds and they shall be in full force and effect and shall conform to the descriptions thereof in
the Official Statement.
(d) The Authority shall have received the unqualified approving opinion of Murray
Barnes LLP, Atlanta, Georgia, Bond Counsel, dated the Closing Date and in substantially the
form attached to the Preliminary Official Statement as Appendix E (for this purpose, such
approving opinion shall not be considered "in substantially the form" as that attached to the
Preliminary Official Statement if such opinion is modified to take into account statutory or
regulatory pronouncements applicable to the Series 2004 Bonds or to such opinion, including
any additional requirements resulting from the issuance by the Internal Revenue Service of final
regulations modifying the Internal Revenue Service's pronouncements generally known as
"Circular 230").
(e) The Underwriter shall have received the opinion of Sutherland Asbill & Brennan
LLP, Atlanta, Georgia, dated the Closing Date, in substantially the form attached hereto as
Exhibit B.
(f) The Underwriter shall have received the opinion of Rhodes & Enoch, P.C.,
Augusta, Georgia, counsel to the Authority, dated the Closing Date, in substantially the form
attached hereto as Exhibit C.
(g) The Underwriter shall have received a certificate, dated the Closing Date, signed
by the Chairman of the Authority, to the effect that:
(i) Except as disclosed in the Official Statement, no litigation or other
proceedings are pending or, to his knowledge, threatened in any court or other tribunal of
competent jurisdiction, state or federal, in any way (A) restraining or enjoining the
issuance, sale or delivery of any of the Series 2004 Bonds, or (B) questioning or affecting
the validity of this Bond Purchase Agreement, the Contract, the Indenture, the Escrow
Agreement, the Disclosure Certificate, the Series 2004 Bonds or the Resolution, or
(c) questioning or affecting the validity of any of the proceedings for the authorization,
sale, execution, issuance or delivery of the Series 2004 Bonds, or (D) questioning or
affecting the organization or existence of the Authority or the title to office of the officers
thereof;
(ii) The representations and warranties of the Authority contained herein are
true and correct as of the Closing Date;
(iii) The Authority has, by all action necessary under the Revenue Bond Law
and the laws and Constitution of the State, authorized the adoption of the Resolution and
the execution, delivery and due performance of the Series 2004 Bonds, the Contract, the
Indenture, the Escrow Agreement, the Bond Purchase Agreement and the Disclosure
Certificate;
-12.-
AO 1085751.2
(iv) The Series 2004 Bonds, as executed by the Authority, are in the form or in
substantially the form approved for such execution by appropriate proceedings of the
Authority; and
(v) The Preliminary Official Statement and the Official Statement will be
correct and complete in all material respects and will not contain any untrue statement of
a material fact or omit to state any material fact which should be included therein for the
purpose for which the Preliminary Official Statement and the Official Statement are to be
used, or which is necessary in order to make the statements contained therein, in light of
the circumstances under which they were made, not misleading.
(h) The Underwriter shall have received the opinion of Stephen E. Shepard, Augusta,
Georgia, counsel to the Consolidated Government, dated the Closing Date, in substantially the
form attached hereto as Exhibit D.
(i) The Underwriter shall have received a certificate, dated the Closing Date, signed
by the Mayor of the Consolidated Government to the effect that:
(i) Except as disclosed in the Official Statement, no litigation or other
proceedings are pending or, to his knowledge, threatened in any court or other tribunal of
competent jurisdiction, state or federal, in any way (A) restraining or enjoining the
issuance, sale or delivery of any of the Series 2004 Bonds, or (B) questioning or affecting
the validity of the Contract, this Bond Purchase Agreement or the Disclosure Certificate,
or (c) questioning or affecting the organization or existence of the Consolidated
Government or the title to office of the officers thereof;
(ii) The representations and warranties of the Consolidated Government
contained herein are true and correct as of the Closing Date; and
(iii) The Consolidated Government has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied at or prior to the
Closing.
(j) The Underwriter shall have received written evidence that Moody's Investors
Service has issued its rating of "Aaa" with respect to the Series 2004 Bonds and such rating shall
be in effect on the Closing Date.
(k) The Underwriter shall have received certificates (the "Arbitrage Certificates") of
the Authority and the Consolidated Government, dated the date of Closing, setting forth certain
information upon which it can be concluded that the Series 2004 Bonds are not expected to be
"arbitrage bonds" within the meaning of Section 148 of the Internal Revenue Code of 1986, as
amended (the "Code").
(1) The Underwriter shall have received an executed counterpart of the Disclosure
Certificate and the Disclosure Certificate.
-13-
AO 1085751.2
(m) The Underwriter shall have received a Certificate of the Director of Finance of the
Consolidated Government to the effect that:
(i) nothing has come to his attention which causes him to believe that during
the period from December 31, 2002 to the date of the Closing, there has been any
material adverse change in the financial condition or operations of the Consolidated
Government from that set forth in the audited financial statements of the Consolidated
Government as of December 31, 2002 included as APPENDIX D to the Official
Statement; and
(ii) to the best of his knowledge and belief, the information in the Official
Statement with respect to the Consolidated Government does not contain any untrue
statement of a material fact or omit to state a material fact that should be stated therein
for the purpose for which it is to be used or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
(n) The Underwriter shall have received a supplemental opinion of Murray Barnes
LLP, Bond Counsel, dated the date of the Closing and addressed to the Underwriter, in
substantially the form attached hereto as Exhibit E.
(0) The Underwriter shall have received Agreed-Upon Procedures Letters, each dated
a date not earlier than five business days prior to the date of the Official Statement, Consent
Letters and Bring-Down Agreed-Upon Procedures Letters, each dated a date not earlier than five
business days prior to the Closing Date, of the Authority's independent accountants, Baird &
Company CPAs, LLC, and the Consolidated Government's independent accounts, Cherry,
Bekaert & Holland, L.L.P., each in form and substance reasonably satisfactory to the
Underwriter.
(P) The Underwriter shall have received a report of Grant Thornton LLP with respect
to, among other things, the sufficiency of cash flows from the investments on deposit pursuant to
the Escrow Agreement to provide for the payment and redemption of the Refunded Bonds.
(q) The Bond Insurer shall have issued to the Trustee the Bond Insurance Policy
guaranteeing the payment when due of the principal of and interest on the Series 2004 Bonds.
(r) The Underwriter shall have received an opinion of counsel to the Bond Insurer, in
form and substance satisfactory to the Underwriter.
(s) The Underwriter shall have received a certificate of the Bond Insurer to the effect
that the information with respect to the Bond Insurance Policy and the Bond Insurer contained in
the Preliminary Official Statement and the Official Statement does not misstate any material fact .
or omit to state any material fact necessary to make the statements contained therein, in light of
the circumstances under which they were made, not misleading.
(t) The Underwriter shall have received such additional certificates, opinions and
other evidences as the Underwriter may deem necessary or advisable in connection with the
-14-
AO 1085751.2
Underwriter's purchase of the Series 2004 Bonds and the public offering and sale thereof. The
opinions and certificates and other evidences referred to in this Bond Purchase Agreement shall
be in form and substance satisfactory to the Underwriter.
8. Underwriter's RieM to Cancel. The Underwriter shall have the right to cancel
its obligations to purchase and accept delivery of the Series 2004 Bonds hereunder by notifying
the Authority or its designated representative, in writing or by telecopy, of its election to do so
between the date hereof and the Closing if, on or after the date hereof and prior to the Closing:
(a) legislation shall be enacted or be actively considered for enactment by the
Congress, or recommended to the Congress for passage by the President of the United States, or
favorably reported for passage to either chamber of the Congress by a committee of such
chamber to which such legislation has been referred for consideration, a decision by a court of
the United States or the United States Tax Court shall be rendered, or a ruling, regulation or
official statement (including a press release) by or on behalf of the Treasury Department of the
United States, the Internal Revenue Service or other governmental agency shall be made or
proposed to be made with respect to federal taxation of interest on obligations of the general
character of the Series 2004 Bonds, or other action or events shall have transpired which have
the purpose or effect, directly or indirectly, of changing the federal income tax consequences of
any of the transactions contemplated in connection herewith, which, in the opinion of the
Underwriter, materially and adversely affects the market price of the Series 2004 Bonds or the
market price generally of obligations of the general character of the Series 2004 Bonds; or
(b) any legislation, ordinance or regulation shall be enacted or be actively considered
for enactment by any governmental body, department or agency of the State of Georgia, or a
decision by any court of competent jurisdiction within the State of Georgia shall be rendered
which, in the opinion of the Underwriter, materially and adversely affects the market price of the
Series 2004 Bonds; or
(c) a stop order, ruling, regulation or official statement by or on behalf of the SEC
shall be issued or made to the effect that the issuance, offering or sale of the Series 2004 Bonds,
or of obligations of the general character of the Series 2004 Bonds as contemplated hereby, is
subject to registration or qualification under the Securities Act of 1933, as amended, or that the
Indenture is subject to qualification under the Trust Indenture Act of 1939, as amended, or that
the issuance, offering or sale of the Series 2004 Bonds is in violation of any provision of either
of such acts or the Securities Exchange Act of 1934, as amended; or
(d) any event shall have occurred, or information become known, which, in the
Underwriter's sole opinion, makes untrue in any material respect any statement or information
furnished to the Underwriter by the Authority or the Consolidated Government for use in
connection with the marketing of the Series 2004 Bonds or any material statement or information
contained in the Preliminary Official Statement or the Official Statement as originally circulated
contains an untrue statement of a material fact or omits to state a material fact necessary in order
to make the statements made, in light of the circumstances under which they were made, not
misleading; provided, however, that the Authority shall be granted a reasonable amount of time
in which to cure any such untrue or misleading statement or information; or
-15-
AO 1085751.2
( e) there shall have occurred any outbreak of hostilities or other national or
international calamity or crisis or a financial crisis, the effect of such outbreak, calamity or crisis
on the financial markets of the United States being such as, in the opinion of the Underwriter,
would affect materially and adversely the ability of the Underwriter to market the Series 2004
Bonds or the market value of the Series 2004 Bonds; or
(f) additional material restrictions not in force on the date of this Bond Purchase
Agreement have been imposed on trading in securities generally or by a governmental authority
or national association of securities dealers; or
(g) trading shall be suspended, or new or additional trading or loan restrictions shall
be imposed by the New York Stock Exchange or other national securities exchanges or
governmental authority with respect to obligations of the general character of the Series 2004
Bonds or a general banking moratorium shall be declared by federal, Georgia or New York
authorities; or
(h) any litigation shall be instituted, pending or threatened to restrain or enjoin the
issuance or sale of the Series 2004 Bonds or in any way protesting or affecting any authority for
or the validity of the Series 2004 Bonds or the existence or powers of the Authority or the
Consolidated Government or the territorial limits of the Authority; or
(i) there shall have occurred any material adverse change In the affairs of the
Authority, the Consolidated Government or the Bond Insurer; or
(j) there shall have occurred a default with respect to the debt obligations of, or the
institution of proceedings under any federal bankruptcy laws by or against, any state of the
United States or any County located in the United States having a population of over 500,000,
the effect of which, in the opinion of the Underwriter, would materially and adversely affect the
ability of the Underwriter to market the Series 2004 Bonds; or
(k) Moody's Investors Service shall withdraw its "Aaa" rating on the Series 2004
Bonds prior to the Closing Date.
9. Failure to Satisfy Conditions: Waiver of Conditions. If the Authority and the
Consolidated Government shall be unable to satisfy the conditions to the obligations of the
Underwriter contained in this Bond Purchase Agreement, or if the obligation of the Underwriter
to purchase and accept delivery of the Series 2004 Bonds shall be terminated for any reason
permitted by this Bond Purchase Agreement, this Bond Purchase Agreement shall terminate and
neither the Underwriter nor the Consolidated Government or the Authority shall be under further.
obligation hereunder, except that the respective obligations to pay expenses, as provided in
Section 12 hereof, shall continue in full force and effect. The Underwriter may, in its discretion,
waive anyone or more of the conditions imposed by this Bond Purchase Agreement for the
protection of the Underwriter and proceed with the Closing.
-16-
AO 1085751.2
10. Indemnification bv the Authority.
(a) To the fullest extent permitted by applicable law, the Authority will and hereby
does indemnify and hold harmless the Underwriter, and each member, officer, director, official
or employee of the Underwriter, and any person who controls the Underwriter within the
meaning of Section 15 of the Securities Act of 1933, as amended, or Section 20 of the Securities
Exchange Act of 1934, as amended (collectively called the "Section 1 O( a) Indemnified Parties"),
against:
(i) any and all losses, claims, damages, expenses, actions or liabilities, joint
or several, to which any of the Section 10(a) Indemnified Parties may become subject
under any statute or regulation or at common law or otherwise and, except as hereinafter
provided, will reimburse the Section 10(a) Indemnified Parties for any legal or other
expense reasonably incurred by them or any of them in connection with investigating or
defending any such losses, claims, damages, expenses or actions asserting liability,
whether or not resulting in any liability, insofar as such losses, claims, damages,
expenses, actions or liabilities arise out of or are based upon any untrue statement or
misleading statement or alleged untrue statement or alleged misleading statement of a
material fact contained in the Preliminary Official Statement or the Official Statement or
arise out of or are based upon any omission or alleged omission from the Preliminary
Official Statement or the Official Statement of any material fact necessary to be stated
therein in order to make the statements made therein, in light of the circumstances under
which they were made, not misleading, except for the information with respect to the
Consolidated Government contained therein and except insofar as such losses, claims,
damages or liabilities are caused by an untrue statement or omission or alleged untrue
statement or alleged omission based upon information furnished in writing to the
Authority by or on behalf ofthe Underwriter expressly for use therein; and
(ii) any and all losses, claims, damages, expenses, actions or liabilities, joint
or several, to which the Section 10(a) Indemnified Parties or any of them may become
subject under the Securities Act of 1933, the Securities Exchange Act of 1934, the Trust
Indenture Act of 1939, the rules or regulations under said Acts, or any amendment of said
Acts, insofar as such losses, claims, damages, expenses, actions or liabilities arise out of
or are based upon the failure to register the Series 2004 Bonds under the Securities Act of
1933 or to qualify the Indenture under the Trust Indenture Act of 1939.
(b) The Authority agrees to reimburse the Section 10(a) Indemnified Parties for any
legal or other expense reasonably incurred by them or any of them in connection with
investigating or defending any losses, claims, damages, expenses or actions asserting liability,
whether or not resulting in any liability, insofar as such losses, claims, damages, expenses,
actions or liabilities arise out of or are based upon any untrue statement or misleading statement
or alleged untrue statement or alleged misleading statement of a material fact contained in the
Preliminary Official Statement or the Official Statement or arise out of or are based upon any
omission or alleged omission from the Preliminary Official Statement or the Official Statement
of any material fact necessary to be stated therein in order to make the statements made therein,
in light of the circumstances under which they were made, not misleading, except for the
-17-
AO 1085751.2
information with respect to the Consolidated Government contained therein and except insofar as
such losses, claims, damages or liabilities are caused by an untrue statement or omission or
alleged untrue statement or alleged omission based upon information furnished in writing to the
Authority or the Consolidated Government by or on behalf of the Underwriter expressly for use
therein.
(c) Promptly after receipt by a Section 10(a) Indemnified Party of notice of any claim
or the commencement of any action in respect of which indemnification or reimbursement of
expenses may be sought against the Authority under this Section, such Section 10(a) Indemnified
Party shall promptly notify the Authority in writing; but the failure to so notify the Authority will
not relieve the Authority from any liability which it may have to any Section lO(a) Indemnified
Party otherwise than under paragraph (a) or (b) of this Section 10 nor affect any rights it may
have otherwise than under this Section to participate in and/or assume the defense of any action
brought against any Section 10(a) Indemnified Party, unless the ability of the Authority to
participate in and/or assume the defense of any such action shall have been materially prejudiced
by such failure. In case any claim is asserted or any action is brought against any Section lO(a)
Indemnified Party, and it notifies the Authority of the commencement thereof, the Authority will
be entitled to participate in, and, to the extent that it chooses so to do, to assume the defense
thereof (including the employment of counsel reasonably satisfactory to such Section lO(a)
Indemnified Party), and shall assume the payment of all fees and expense relating to such
defense and shall have the right to negotiate settlement thereof. Anyone or more of the Section
10(a) Indemnified Parties shall have the right to employ separate counsel in connection with any
such claim or action and to participate in the defense thereof, but after notice from the Authority
to such Section 10(a) Indemnified Party of its election to assume the defense thereof, the fees
and expenses of such separate counsel shall be at the expense of such Section 1 O( a) Indemnified
Party or Section 1 O( a) Indemnified Parties unless the employment of such counsel has been
specifically authorized in writing by the Authority. The Authority shall not be liable for any
settlement of any such claim or action effected without its consent, but if settled with its consent
or if there be a final judgment for the plaintiff in any such action as to which the Authority has
received notice in writing as hereinabove required, the Authority hereby agrees to and hereby
does indemnify and hold harmless the Section 10(a) Indemnified Party from and against any loss
or liability by reason of such settlement or judgment.
(d) In order to provide for just and equitable contribution in circumstances in which
the indemnity provided for in paragraphs (a) and (c) of this Section 10 is for any reason held to
be unavailable from the Authority with respect to matters covered by such paragraphs (a) and (c),
the Authority on one hand, and the Underwriter on the other hand, with respect to such matters
shall contribute to the aggregate losses, damages, expenses, liabilities or claims to which the
Authority on the one hand, and the Underwriter on the other hand, may be subject in such
proportion so that the Underwriter is responsible for that portion represented by the percentage
that the underwriting discount payable to the Underwriter hereunder (i.e., the excess of the
aggregate principal amount of the Series 2004 Bonds purchased by the Underwriter over the
price to be paid by the Underwriter to the Authority upon delivery of the Series 2004 Bonds as
specified in Section 1 hereof) bears to the aggregate principal amount of the Series 2004 Bonds
purchased by the Underwriter, and the Authority is responsible for the balance. The contribution
provided by this paragraph shall also extend, without limitation, to any and all expenses
-18-
AO 1085751.2
whatsoever reasonably incurred in connection with investigating, preparing for or defending
against, or providing evidence, producing documents or taking any other reasonable action in
respect of, any such loss, damage, expense, liability or claim (or action in respect thereof),
whether or not resulting in any liability, and shall include any loss to the extent of the aggregate
amount paid in settlement of any litigation, commenced or threatened, or of any claim
whatsoever as set forth herein if such settlement is effected with the written consent of the
Authority. For purposes of this paragraph (d) each officer, director, employee, agent or attorney
of the Underwriter and any person who controls the Underwriter within the meaning of Section
15 of the Securities Act of 1933 or Section 20 of the Securities Exchange Act of 1934, or any
amendment of said Acts, shall, under the same circumstances, have the same rights to
contribution as does the Underwriter hereunder. Within a reasonable time after a party entitled
to contribution under this paragraph (d) of this Section 10 shall have been served with the
summons or other first legal process or shall have received written notice of the threat of a claim
in respect of which contribution may be sought hereunder, such person shall, if a claim for
contribution is to be made against the Authority under this paragraph (d), notify the Authority, in
writing, of the commencement hereof, but the omission so to notify the Authority shall not
relieve the Authority from any liability that it may have other than pursuant to this paragraph (d);
provided, however, that any notice given by the Underwriter for purposes of, and as provided in,
paragraph (c) of this Section 10 shall constitute notice for purposes of this paragraph (d).
(e) The Authority hereby agrees to reimburse any Section lO(a) Indemnified Party for
any expense (including reasonable fees and expenses of counsel) incurred as a result of
producing documents, presenting testimony or evidence, or preparing to present testimony or
evidence (based upon time expended by any Indemnified Party at its then current time charges),
in connection with any court or administrative proceeding (including any investigation which
may be preliminary thereto) arising out of or relating to the offer, issuance or sale of the Series
2004 Bonds.
(f) The indemnity provided by this Section 10 hereof shall be in addition to any other
liability that the Authority may otherwise have hereunder, at common law or otherwise, and is
provided solely for the benefit of each of the Section 10(a) Indemnified Parties and their
respective successors, assigns and legal representatives, and no other person shall acquire or
have any right under or by virtue of such provisions of this Bond Purchase Agreement.
11. Indemnification bv the Consolidated Government.
(a) To the fullest extent permitted by applicable law, the Consolidated Government
will and hereby does indemnify and hold harmless the Underwriter, and each member, officer,
director, official or employee of the Underwriter, and any person who controls the Underwriter
within the meaning of Section 15 of the Securities Act of 1933, as amended, or Section 20 of the
Securities Exchange Act of 1934, as amended (collectively called the "Section II(a) Indemnified,
Parties"), against:
(i) any and all losses, claims, damages, expenses, actions or liabilities, joint
or several, to which any of the Section II(a) Indemnified Parties may become subject
under any statute or regulation or at common law or otherwise and, except as hereinafter
-19-
AO 1085751.2
provided, will reimburse the Section Il(a) Indemnified Parties for any legal or other
expense reasonably incurred by them or any of them in connection with investigating or
defending any such losses, claims, damages, expenses or actions asserting liability,
whether or not resulting in any liability, insofar as such losses, claims, damages,
expenses, actions or liabilities arise out of or are based upon any untrue statement or
misleading statement or alleged untrue statement or alleged misleading statement of a
material fact contained in the Preliminary Official Statement or the Official Statement or
arise out of or are based upon any omission or alleged omission from the Preliminary
Official Statement or the Official Statement of any material fact necessary to be stated
therein in order to make the statements made therein, in light of the circumstances under
which they were made, not misleading, except for the information with respect to the
Consolidated Government contained therein and except insofar as such losses, claims,
damages or liabilities are caused by an untrue statement or omission or alleged untrue
statement or alleged omission based upon information furnished in writing to the
Authority or the Consolidated Government by or on behalf of the Underwriter expressly
for use therein; and
(ii) any and all losses, claims, damages, expenses, actions or liabilities, joint
or several, to which the Section Il(a) Indemnified Parties or any of them may become
subject under the Securities Act of 1933, the Securities Exchange Act of 1934, the Trust
Indenture Act of 1939, the rules or regulations under said Acts, or any amendment of said
Acts, insofar as such losses, claims, damages, expenses, actions or liabilities arise out of
or are based upon the failure to register the Series 2004 Bonds under the Securities Act of
1933 or to qualify the Indenture under the Trust Indenture Act of 1939.
(b) The Consolidated Government agrees to reimburse the Section Il(a) Indemnified
Parties for any legal or other expense reasonably incurred by them or any of them in connection
with investigating or defending any losses, claims, damages, expenses or actions asserting
liability, whether or not resulting in any liability, insofar as such losses, claims, damages,
expenses, actions or liabilities arise out of or are based upon any untrue statement or misleading
statement or alleged untrue statement or alleged misleading statement of a material fact
contained in the Preliminary Official Statement or the Official Statement or arise out of or are
based upon any omission or alleged omission from the Preliminary Official Statement or the
Official Statement of any material fact necessary to be stated therein in order to make the
statements made therein, in light of the circumstances under which they were made, not
misleading, except for the information with respect to the Consolidated Government contained
therein and except insofar as such losses, claims, damages or liabilities are caused by an untrue
statement or omission or alleged untrue statement or alleged omission based upon information
furnished in writing to the Authority or the Consolidated Government by or on behalf of the
Underwriter expressly for use therein.
(c) Promptly after receipt by a Section 11 (a) Indemnified Party of notice of any claim
or the commencement of any action in respect of which indemnification or reimbursement of
expenses may be sought against the Consolidated Government under this Section, such Section
11(a) Indemnified Party shall promptly notify the Consolidated Government in writing; but the
failure to so notify the Consolidated Government will not relieve the Consolidated Government
-20-
AO 1085751.2
from any liability which it may have to any Section l1(a) Indemnified Party otherwise than
under paragraph (a) or (b) of this Section 11 nor affect any rights it may have otherwise than
under this Section to participate in and/or assume the defense of any action brought against any
Section II(a) Indemnified Party, unless the ability of the Consolidated Government to participate
in and/or assume the defense of any such action shall have been materially prejudiced by such
failure. In case any claim is asserted or any action is brought against any Section II(a)
Indemnified Party, and it notifies the Consolidated Government of the commencement thereof,
the Consolidated Government will be entitled to participate in, and, to the extent that it chooses
so to do, to assume the defense thereof (including the employment of counsel reasonably
satisfactory to such Section 11(a) Indemnified Party), and shall assume the payment of all fees
and expense relating to such defense and shall have the right to negotiate settlement thereof.
Anyone or more of the Section I 1 (a) Indemnified Parties shall have the right to employ separate
counsel in connection with any such claim or action and to participate in the defense thereof, but
after notice from the Consolidated Government to such Section II(a) Indemnified Party of its
election to assume the defense thereof, the fees and expenses of such separate counsel shall be at
the expense of such Section 11(a) Indemnified Party or Section 11(a) Indemnified Parties unless
the employment of such counsel has been specifically authorized in writing by the Consolidated
Government. The Consolidated Government shall not be liable for any settlement of any such
claim or action effected without its consent, but if settled with its consent or if there be a final
judgment for the plaintiff in any such action as to which the Consolidated Government has
received notice in writing as hereinabove required, the Consolidated Government hereby agrees
to and hereby does indemnify and hold harmless the Section l1(a) Indemnified Party from and
against any loss or liability by reason of such settlement or judgment.
(d) In order to provide for just and equitable contribution in circumstances in which
the indemnity provided for in paragraphs (a) and (c) of this Section 11 is for any reason held to
be unavailable from the Consolidated Government with respect to matters covered by such
paragraphs (a) and (c), the Consolidated Government on.one hand, and the Underwriter on the
other hand, with respect to such matters shall contribute to the aggregate losses, damages,
expenses, liabilities or claims to which the Consolidated Government on the one hand, and the
Underwriter on the other hand, may be subject in such proportion so that the Underwriter is
responsible for that portion represented by the percentage that the undefWliting discount payable
to the Underwriter hereunder (i.e., the excess of the aggregate principal amount of the Series
2004 Bonds purchased by the Underwriter over the price to be paid by the Underwriter to the
Consolidated Government upon delivery of the Series 2004 Bonds as specified in Section 1
hereof) bears to the aggregate principal amount of the Series 2004 Bonds purchased by the
Underwriter, and the Consolidated Government is responsible for the balance. The contribution
provided by this paragraph shall also extend, without limitation, to any and all expenses
whatsoever reasonably incurred in connection with investigating, preparing for or defending
against, or providing evidence, producing documents or taking any other reasonable action in
respect of, any such loss, damage, expense, liability or claim (or action in respect thereof),
whether or not resulting in any liability, and shall include any loss to the extent of the aggregate
amount paid in settlement of any litigation, commenced or threatened, or of any claim
whatsoever as set forth herein if such settlement is effected with the written consent of the
Consolidated Government. For purposes of this paragraph (d) each officer, director, employee,
agent or attorney of the Underwriter and any person who controls the Underwriter within the
-21-
AO 1085751.2
meaning of Section 15 of the Securities Act of 1933 or Section 20 of the Securities Exchange
Act of 1934, or any amendment of said Acts, shall, under the same circumstances, have the same
rights to contribution as does the Underwriter hereunder. Within a reasonable time after a party
entitled to contribution under this paragraph (d) of this Section 11 shall have been served with
the summons or other first legal process or shall have received written notice of the threat of a
claim in respect of which contribution may be sought hereunder, such person shall, if a claim for
contribution is to be made against the Consolidated Government under this paragraph (d), notify
the Consolidated Government, in writing, of the commencement hereof, but the omission so to
notify the Consolidated Government shall not relieve the Consolidated Government from any
liability that it may have other than pursuant to this paragraph (d); provided, however, that any
notice given by the Underwriter for purposes of, and as provided in, paragraph (c) of this Section
II shall constitute notice for purposes of this paragraph (d).
(e) The Consolidated Government hereby agrees to reimburse any Section Il(a)
Indemnified Party for any expense (including reasonable fees and expenses of counsel) incurred
as a result of producing documents, presenting testimony or evidence, or preparing to present
testimony or evidence (based upon time expended by any Indemnified Party at its then current
time charges), in connection with any court or administrative proceeding (including any
investigation which may be preliminary thereto) arising out of or relating to the offer, issuance or
sale of the Series 2004 Bonds.
(f) The indemnity provided by this Section 11 hereof shall be in addition to any other
liability that the Consolidated Government may otherwise have hereunder, at common law or
otherwise, and is provided solely for the benefit of each of the Section 11(a) Indemnified Parties
and their respective successors, assigns and legal representatives, and no other person shall
acquire or have any right under or by virtue of such provisions of this Bond Purchase
Agreement.
12. Payment of Expenses. The Authority shall pay from the proceeds of the Series
2004 Bonds certain expenses incurred by the Authority in connection with the issuance of the
Series 2004 Bonds, including but not limited to: (i) the cost of the preparation, reproduction,
printing, distribution, mailing, execution, delivery, filing and recording, as the case may be, of
this Bond Purchase Agreement, the Disclosure Certificate, the Disclosure Certificate, the
Resolution, the Consolidated Government Resolution, the Contract, the Indenture, the Escrow
Agreement, the Preliminary Official Statement, the Official Statement and all other agreements
and documents required in connection with the consummation of the transactions contemplated
hereby; (ii) the cost of the preparation, engraving, printing, execution and delivery of the
definitive Series 2004 Bonds; (iii) the fees and disbursements of Bond Counsel (including
validation court costs), Counsel for the Underwriter, Counsel for the Authority, Counsel for the
Consolidated Government and any other experts retained by the Authority or the Consolidated
Government including accountants' fees; and (iv) any fees charged by investment rating agencies
for the rating of the Series 2004 Bonds.
Each of the Authority and the Consolidated Government shall also pay any expenses
incident to the performance of its respective obligations hereunder and, if the Series 2004 Bonds
are not sold by the Authority to the Underwriter, the Authority and the Consolidated Government
-22-
AO 1085751.2
hereby jointly and severally promise to pay to the Underwriter all expenses incident to the
performance of the Authority's and/or the Consolidated Government's obligations hereunder as
provided above.
13. Notices. Any notice or other communication to be given to the Authority or the
Consolidated Government under this Bond Purchase Agreement may be given by delivering the
same in writing to the Authority and the Consolidated Government at their addresses set forth
above, and any notice or other communication to be given to the Underwriter under this Bond
Purchase Agreement may be given by delivering the same in writing to the address of the
Underwriter as set forth below:
Banc of America Securities LLC
600 Peachtree Street, NE
4th Floor
MC-GA 1-006-04-15
Atlanta, Georgia 30308-2265
Attention: William A. Johnston, Managing Director
14. Successors and Assiens. This Bond Purchase Agreement is made solely for the
benefit of the Authority, the Consolidated Government and the Underwriter (including our
successors or assigns) and no other person shall acquire or have any right hereunder or by virtue
hereof. All the representations, warranties and agreements of the Authority and the Consolidated
Government shall remain operative and in full force and effect and shall survive delivery of and
payment for the Series 2004 Bonds hereunder and regardless of any investigation made by the
Underwriter or on its behalf.
15. Governine Law. This Bond Purchase Agreement shall be governed by and
construed in accordance with the laws of the State of Georgia.
16. Effective Date. This Bond Purchase Agreement shall become effective upon the
Authority's and the Consolidated Government's mutual acceptance hereof.
17. Counterparts. This Bond Purchase Agreement may be executed by anyone or
more of the parties hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same instrument.
Very truly yours,
BANC OF AMERICA SECURITIES LLC
-23-
AO 1085751.2
Accepted and agreed on March~004:
AUGUST A, GEORGIA
Attest:
By: ~j~
1ffb" Mayor
By:
Attest:
~cIMt?7L&YJ
-24-
AO 1085751.2
EXHIBIT A
[See Attached]
AO 1085751.2
Mar 15,2004 2:07 pm Prepared by Bane of America Securities LLC
Page 4
BOND PRICING
Augusta-Richmond County Coliseum Authority (Georgia)
Revenue Refunding Bonds, Series 2004
Bond Component
Maturity
Date
Serials Through 2010:
08/01/2004
02/01/2005
08/01/2005
02/01/2006
08/0 I /2006
02/01/2007
08/01/2007
02/01/2008
08/01/2008
02/01/2009
08/0 I /2009
02/01/2010
Amount Rate Yield Pri ce
445,000 2,000% 0,990% 100,334
475,000 2,000% 1. 000% 100,827
475,000 2.000% 1.1 00% 101.187
485,000 2,000% 1.160% 101.518
485,000 2,000% 1,200% 101.834
495,000 2,000% 1.450% 101.520
500,000 2,000% 1.490% 101.651
435,000 2.250% 1. 81 0% 101.621
440,000 2.250% 1,850% 101.657
450,000 2,250% 2,130% 100,547
450,000 2,250% 2,130% 100,600
420,000 2.250% 2,350% 99.456
5,555,000
03/01/2004
03/31/2004
08/01/2004
5,555,000,00
60,307,85
5,615,307,85 101.085650%
(55,304,28) (0,995577)
5,560,003,57 100.090073%
9,715.63
5,569,719.20
Dated Date
Delivery Date
First Coupon
Par Amount
Premium
Production
Underwriter's Discount
Purchase Price
Accrued Interest
Net Proceeds
EXHIBIT B
[Opinion of Underwriter's Counsel]
March _, 2004
Banc of America Securities LLC
Atlanta, Georgia
Re: $5,555,000 Augusta-Richmond County Coliseum Authority
Refunding Revenue Bonds, Series 2004
Ladies and Gentlemen:
We have acted as underwriter's counsel to Banc of America Securities LLC (the
"Underwriter") in connection with the issuance by the Augusta-Richmond County Coliseum
Authority (the "Issuer") of the above-referenced bonds (the "Bonds"). The Bonds are being
purchased by the Underwriter pursuant to a Bond Purchase Agreement, dated March 16, 2004,
by and among the Issuer, Augusta, Georgia (the "Consolidated Government") and Banc of
America Securities LLC (the "Bond Purchase Agreement"). Capitalized terms used and not
otherwise defined herein shall have the meanings specified in the Bond Purchase Agreement.
In our capacity as your counsel, we have examined the Resolution, the Indenture, the
Contract, the Bond Purchase Agreement and the Official Statement of the Issuer and the
Consolidated Government dated March 16, 2004 (the "Official Statement"). We have also
examined and relied upon certificates of representatives of the various parties described in the
Official Statement, containing representations and warranties as to the factual matters contained
in the Official Statement, and originals or copies certified to our satisfaction of such records,
documents, certificates, legal opinions, memoranda or other instruments as in our judgment are
necessary or appropriate to enable us to render the opinions expressed below. We have assumed
the accuracy of certain legal conclusions contained in the Official Statement as to which you are
receiving the opinions of various parties' counsel.
In rendering this opinion, we have assumed: the genuineness and authenticity of all
signatures on original documents; the authenticity of all documents submitted to us as originals;
the conformity to originals of all documents submitted to us as copies; the accuracy,
completeness and authenticity of certificates of public officials and other parties involved in the
referenced transaction; and the due authorization, execution and delivery of all documents where
authorization, execution and delivery are prerequisites to the effectiveness of such documents.
We have also assumed that all individuals executing and delivering documents have the legal
capacity to so execute and deliver.
On the basis of the foregoing examination and assumptions and of our consideration of
such questions of law as we have deemed relevant to the circumstances, we are of the opinion
AO 1085751.2
that no registration of the Bonds under the Securities Act of 1933, as amended, or qualification
of the Indenture under the Trust Indenture Act of 1939, as amended is required in connection
with the offer and sale of the Bonds to the public.
Weare also of the opinion that the Disclosure Certificate and the Disclosure Certificate
satisfy Section (b)(5) of Rule 15c2-12 promulgated by the Securities and Exchange Commission
under the Securities Exchange Act of 1934, as amended.
We have rendered legal advice and assistance to you in the course of your investigation
pertaining to the Official Statement including, among other things, review of the documents and
opinions relating to the issuance of the Bonds and discussions and inquiries concerning various
legal matters. We have also participated in discussions with you, Bond Counsel, Counsel to the
Issuer, Counsel to the Consolidated Government and representatives of the Issuer and the
Consolidated Government (including the Consolidated Government's accountants) during which
the contents of the Official Statement and related matters were discussed and revised. As noted
above, we have also reviewed the items listed above and in rendering this opinion have relied
solely on the opinions of Bond Counsel, Counsel to the Issuer and Counsel to the Consolidated
Government as to the matters contained therein. While we have not undertaken to verify the
information contained in the Official Statement or pass upon its accuracy or completeness, based
on the information developed in the course of our services on your behalf described above,
nothing came to our attention which caused us to believe that the Official Statement (except for
the statistical and financial statements and data and projections included in the Official Statement
and except for Appendices C, D and F attached thereto and the information set forth under the
captions "THE SERIES 2004 BONDS - Book-Entry Only System" and "BOND INSURANCE,"
as to all of which we express no opinion), as of its date, contained any untrue statement of a
material fact or omitted to state a material fact necessary in order to make the statements made,
in light of the circumstances under which they were made, not misleading.
We have reviewed the opinions, dated the date of this opinion, of Murray Barnes LLP,
Atlanta, Georgia, Bond Counsel, Rhodes & Enoch, P.C., Augusta, Georgia, counsel to the Issuer
and Stephen E. Shepard, counsel to the Consolidated Government, furnished to you in
accordance with the provisions of the Bond Purchase Agreement. Such opinions are
appropriately responsive to the requirements of the Bond Purchase Agreement.
This letter is furnished by us as your counsel and is solely for your benefit and may not
be relied upon by any other person.
Very truly yours,
SUTHERLAND ASBILL & BRENNAN LLP
By:
B-2
AO 1085751.2
EXHIBIT C
March _, 2004
Augusta-Richmond County Coliseum Authority
Augusta, Georgia
Murray Barnes LLP
Atlanta, Georgia
Augusta-Richmond County Commission
Augusta, Georgia
Sutherland Asbill & Brennan LLP
Atlanta, Georgia
Banc of America Securities LLC
Atlanta, Georgia
Wachovia Bank, National Association
Atlanta, Georgia
Re: $5,555,000 Augusta-Richmond County Coliseum Authority
Refunding Revenue Bonds, Series 2004
Ladies and Gentlemen:
We have acted as counsel to the Augusta-Richmond County Coliseum Authority (the
"Authority") in connection with the issuance by the Authority of $5,555,000 aggregate principal
amount of Augusta-Richmond County Coliseum Authority Refunding Revenue Bonds, Series
2004 (the "Series 2004 Bonds"). In this capacity, we have examined such matters of law,
documents, instruments and proceedings of the Authority as we have considered necessary to
render the opinion set forth below, including, but not limited to, the following:
(a) the resolution of the Authority adopted on February 24,2004, as supplemented by
a resolution adopted on March 16, 2004 (collectively, the "Bond Resolution") authorizing,
among other things, the issuance and delivery of the Series 2004 Bonds;
(b) the Contract, dated as of March 1, 2004 (the "Contract"), by and between the
Authority and Augusta, Georgia (the "Consolidated Government");
(c) the Trust Indenture, dated as of March 1, 2004 (the "Indenture"), between the
Authority and Wachovia Bank, National Association (the "Trustee");
(d) the Escrow Deposit Agreement dated as of March 1, 2004 (the "Escrow
Agreement"), between the Authority and Wachovia Bank, National Association, as Escrow
Agent;
(e) the Bond Purchase Agreement, dated March 16, 2004 (the "Bond Purchase
Agreement"), among the Authority, the Consolidated Government and Banc of America
Securities LLC, as underwriter;
AO 1085751.2
(f) the Continuing Disclosure Certificate, executed by the Authority and dated as of
the date of issuance and delivery of the Series 2004 Bonds (the "Disclosure Certificate");
(g) the Preliminary Official Statement of the Authority and the Consolidated
Government, dated March 4, 2004 (the "Preliminary Official Statement") and the Official
Statement of the Authority and the Consolidated Government, dated March 16, 2004 (the
"Official Statement"); and
(h) a certified copy of the transcript of the validation proceedings concluded in the
Superior Court of Augusta, Georgia, relating to the Bonds.
We have also examined and relied upon the original, certified, conformed or
photographic copies of such other documents, records, agreements and certificates as we have
considered necessary or appropriate to enable us to render the opinions expressed herein. In all
such examinations, we have assumed the genuineness of signatures on original documents and
the conformity to original documents of all copies submitted to us as certified, conformed or
photographic copies, and as to certificates of public officials, we have assumed the same to have
been properly given and to be accurate.
Based upon the foregoing, we are of the opinion that:
1. The Authority is a public body corporate and politic of the State of Georgia and
had and has good, right and lawful authority under the Constitution and laws of the State of
Georgia, including particularly the Revenue Bond Law, to (i) adopt the Bond Resolution,
(ii) issue, execute, deliver and perform its obligations under the Series 2004 Bonds,
(iii) authorize, execute, deliver and perform its obligations under the Bond Resolution, the
Contract, the Indenture, the Bond Purchase Agreement, the Escrow Agreement and the
Disclosure Certificate (collectively, the "Authority Documents"), (iv) execute and deliver the
Official Statement, (v) pledge the Contract and the Contract Payments to the payment of the
Series 2004 Bonds, (vi) own and operate the Coliseum Complex, (vi) carry out and consummate
all of the transactions contemplated on its part by the Authority Documents and the Official
Statement.
2. The Bond Resolution has been duly adopted and is a legal, valid and binding
obligation ofthe Authority.
3. The lien created by the Indenture on the Contract, the Contract Payments and the
revenues derived by the Authority from the ownership and operation of the Coliseum Complex is
a valid and binding lien. To the best of our knowledge after due inquiry, there are no other
obligations of the Authority that are secured by a lien on the Contract, the Contract Payments or
the revenues derived by the Coliseum Complex.
4. The Series 2004 Bonds have been duly authorized, executed and delivered by the
Authority and constitute legal, valid and binding limited obligations of the Authority in
accordance with their terms.
C-2
AO 1085751.2
5. The Authority Documents have been duly authorized, executed and delivered by
the Authority, and, assuming that they are the respective legal, valid, binding and enforceable
obligations of the other parties thereto, constitute legal, valid and binding obligations of the
Authority, legally enforceable against the Authority in accordance with their respective terms.
6. The Preliminary Official Statement and the Official Statement have been duly
authorized by the Authority. The Official Statement has been duly executed by the Authority.
7. There is no action, suit, proceeding, inquiry or investigation, at law or in equity,
before or by any court, public board or body, pending or, to the best of our knowledge,
threatened against or affecting the Authority (or, to the best of our knowledge, any meritorious
basis therefor) (a) attempting to limit, enjoin or otherwise restrict or prevent the Authority from
functioning or contesting or questioning the existence of the Authority or the titles of the present
officers of the Authority to their offices; or (b) wherein an unfavorable decision, ruling or finding
would have an adverse effect on (i) the powers of the Authority or the validity or enforceability
of the Bond Resolution, the Bonds, the Authority Documents or any agreement or instrument to
which the Authority is a party and which is used or contemplated for use in the consummation of
the transactions contemplated by the Authority Documents or by the Official Statement, or
(ii) the transactions contemplated by the Authority Documents or by the Official Statement.
8. The adoption of the Bond Resolution, the issuance and sale of the Bonds, the
execution, delivery and performance by the Authority of the Authority Documents, the use and
distribution of the Preliminary Official Statement and the Official Statement, the execution and
delivery of the Official Statement and the carrying out and consummation of the transactions
contemplated by the Authority Documents and the Official Statement will not conflict with or
constitute on the part of the Authority a violation of, breach of or default under (i) the Act, its by-
laws or any other governing instrument, (ii) any indenture, mortgage, lease, resolution, note,
agreement or other agreement or instrument to which the Authority is a party or by which the
Authority is bound, or (iii) any constitutional provision, statute, order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Authority or any of its
activities or properties; provided, however, we express no opinion as to compliance with the
securities or "Blue Sky" laws of any jurisdiction.
9. All consents, approvals, authorizations and orders of any governmental or
regulatory authorities (other than in connection with or in compliance with the provisions of the
securities or "Blue Sky" laws of any jurisdiction, as to which we express no opinion) that are
required to be obtained by the Authority as of the date hereof in connection with the adoption of
the Bond Resolution, the issuance, sale and delivery of the Bonds, the execution, delivery and
performance of the Authority Documents, the use and distribution of the Preliminary Official
Statement and the Official Statement, the execution and delivery of the Official Statement and ,
the carrying out and consummation of the transactions contemplated by the Purchase Agreement
and the Official Statement have been duly obtained and remain in full force and effect.
10. Each of the officials of the Authority was on the date of execution of each of the
instruments relating to the Bonds, was on the date of the execution of the Bonds, and is on the
C-3
AO 1085751.2
date hereof the duly elected or appointed qualified incumbent of his or her office of the
Authority.
II. To the best of our knowledge, the Authority is not in default in any material
respect under any agreement or other instrument to which it is a party or by which it is bound.
12. The notices given prior to the meetings of the Authority at which the Bond
Resolution was adopted comply with the applicable notice requirements of Georgia law, and
such meetings were conducted in accordance with the applicable requirements of Georgia law.
13. As counsel to the Authority, we have rendered legal advice and assistance to the
Authority, which advice and assistance involved, among other things, discussions and inquiries
concerning various legal matters, review of various documents and participation in conferences
during which the contents of the Preliminary Official Statement and the Official Statement and
related matters were discussed and reviewed. Based upon such advice and assistance, nothing
has come to our attention that causes us to believe that any portion of the Official Statement
pertaining to the Authority contains any untrue statement of a material fact or omits to state a
material fact necessary to be stated therein in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
The rights of the holders of the Bonds and the enforceability of the Authority Documents
may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and principles of equity applicable to the
availability of specific performance and other equitable relief.
Very truly yours,
RHODES & ENOCH, P.C.
By:
C-4
AO 1085751.2
EXHIBIT D
March _, 2004
Augusta-Richmond County Coliseum Authority
Augusta, Georgia
Murray Barnes LLP
Atlanta, Georgia
Augusta-Richmond County Commission
Augusta, Georgia
Sutherland Asbill & Brennan LLP
Atlanta, Georgia
Banc of America Securities LLC
Atlanta, Georgia
Wachovia Bank, National Association
Atlanta, Georgia
Re: $5,555,000 Augusta-Richmond County Coliseum Authority
Refunding Revenue Bonds, Series 2004
Ladies and Gentlemen:
We have acted as counsel to Augusta, Georgia, a political subdivision of the State of
Georgia (the "Consolidated Government"), in connection with the authorization and issuance by
the Augusta-Richmond County Coliseum Authority (the "Authority") of its Refunding Revenue
Bonds, Series 2004, in the aggregate principal amount of $5,555,000 (the "Series 2004 Bonds").
In such capacity, we have examined such documents, instruments and proceedings of the
Consolidated Government as we have considered necessary to render the opinions set forth
below, including, but not limited to, the following:
(a) the resolution adopted by the Augusta-Richmond County Commission on March
2, 2004, as supplemented by a resolution adopted March 16, 2004, relating to the Series 2004
Bonds (collectively, the "Consolidated Government Resolution");
(b) the Contract, dated as of March 1, 2004 (the "Contract"), by and between the
Authority and the Consolidated Government);
(c) the Bond Purchase Agreement, dated March 16, 2004 (the "Bond Purchase
Agreement"), among the Authority, the Consolidated Government and Banc of America
Securities LLC, as underwriter;
(d) the Continuing Disclosure Certificate, executed by the Consolidated Government,
and dated the date of issuance and delivery of the Series 2004 Bonds (the "Disclosure
Certificate"); and
(e) the Preliminary Official Statement of the Authority and the Consolidated
Government, dated March 4, 2004 (the "Preliminary Official Statement") and the Official
AO 1085751.2
Statement of the Authority and the Consolidated Government, dated March 16, 2004 (the
"Official Statement"), relating to the Bonds.
We have also examined and relied upon the original, certified, conformed or
photographic copies of such other documents, records, agreements and certificates as we have
considered necessary or appropriate to enable us to render the opinions expressed herein. In all
such examinations, we have assumed the genuineness of signatures on original documents
(except for the signatures of the Consolidated Government) and the conformity to original
documents of all copies submitted to us as certified, conformed or photographic copies, and as to
certificates of public officials, we have assumed the same to have been properly given and to be
accurate.
Based on the foregoing, we are of the opinion that as of this date:
1. The Consolidated Government is a political subdivision of the State of Georgia,
duly created and validly existing with full power and authority to (i) adopt the Consolidated
Government Resolution; (ii) execute, deliver and perform its obligations under the Contract, the
Bond Purchase Agreement and the Disclosure Certificate (collectively, the "Consolidated
Government Documents"); (iii) execute and deliver the Official Statement; (iv) pledge the Hotel
Tax and the Beer Tax to the payment of the Contract Payments and to pledge the full faith and
credit and taxing power of the Consolidated Government to the Authority as security for the
payment of the Contract Payments; and (v) carry out and consummate all of the transactions
contemplated by the Consolidated Government Documents and by the Official Statement.
2. The Consolidated Government Resolution has been duly adopted. The
Consolidated Government Documents have been duly authorized, executed and delivered by the
Consolidated Government, and, assuming that they are the respective legal, valid, binging and
enforceable obligations of the other parties thereto, constitute legal, valid and binding obligations
of the Consolidated Government, legally enforceable against the Consolidated Government in
accordance with their terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and principles of equity applicable to the availability of specific
performance and other equitable relief, and except as the validity, binding effect or enforceability
of the indemnification and contribution provisions of the Bond Purchase Agreement may be
limited by federal or state securities laws.
3. The use and distribution of the Preliminary Official Statement and the Official
Statement have been duly authorized by the Consolidated Government. The Official Statement
has been duly executed by the Consolidated Government.
4. There is no action, suit, proceeding, inquiry or investigation, at law or in equity,
before or by any court, public board or body, pending or, to the best of our knowledge,
threatened against or affecting the Consolidated Government (or, to the best of our knowledge,
any meritorious basis therefor) (a) attempting to limit, enjoin or otherwise restrict or prevent the
Consolidated Government from functioning or contesting or questioning the existence of the
Consolidated Government or the titles of the present officers of the Consolidated Government to
D-2
AO 1085751.2
their offices; (b) wherein an unfavorable decision, ruling or finding would have an adverse effect
on (i) the financial position of the Consolidated Government or the security for the Bonds,
(ii) the powers of the Consolidated Government or the validity or enforceability of the
Consolidated Government Documents or any agreement or instrument to which the Consolidated
Government is a party and which is used or contemplated for use in the consummation of the
transactions contemplated by the Consolidated Government Documents and by the Official
Statement, or (iii) the transactions contemplated by the Consolidated Government Documents
and by the Official Statement.
5. The execution, delivery and performance by the Consolidated Government of the
Consolidated Government Documents, the use and distribution of the Preliminary Official
Statement and the Official Statement, the execution and delivery of the Official Statement and
the carrying out and consummation of the transactions contemplated by the Consolidated
Government Documents and by the Official Statement will not conflict with or constitute on the
part of the Consolidated Government a violation of, breach of or default under (i) any governing
instrument, (ii) any indenture, mortgage, lease, resolution, note agreement or other agreement or
instrument to which the Consolidated Government is a party or by which the Consolidated
Government is bound, or (iii) any constitutional provision, statute, order, rule or regulation of
any court or governmental agency or body having jurisdiction over the Consolidated
Government or any of its activities or properties; provided, however, we express no opinion as to
compliance with the securities or "Blue Sky" laws of any jurisdiction.
6. All consents, approvals, authorizations and orders of any governmental or
regulatory authorities (other than in connection with or in compliance with the provisions of the
securities or "Blue Sky" laws of any jurisdiction, as to which we express no opinion) that are
required to be obtained by the Consolidated Government as of the date hereof in connection with
the execution, delivery and performance of the Consolidated Government Documents, the use
and distribution of the Preliminary Official Statement and the Official Statement, the execution
and delivery of the Official Statement and the carrying out and consummation of the transactions
contemplated by the Consolidated Government Documents and by the Official Statement have
been duly obtained and remain in full force and effect.
7. Each of the officials of the Consolidated Government was on the date of
execution of each of the Consolidated Government Documents, and is on the date hereof the duly
elected or appointed qualified incumbent of her or her office of the Consolidated Government.
8. To the best of our knowledge, the Consolidated Government has not been, and is
not as of the date hereof, in default in the payment of the principal of, redemption premium, if
any, or interest on any indebtedness of the Consolidated Government.
9. The notices given prior to the meetings of the Augusta-Richmond County
Commission at which the Consolidated Government Resolution was adopted comply with the
applicable notice requirements of Georgia law, and such meetings were in accordance with the
applicable requirements of Georgia law.
D-3
AO 1085751.2
10. As counsel to the Consolidated Government, we have rendered legal advice and
assistance to the Consolidated Government, which advice and assistance involved, among other
things, discussions and inquiries concerning various legal matters, review of various documents
and participation in conferences during which the contents of the Preliminary Official Statement
and the Official Statement and related matters were discussed and reviewed. Based upon such
advice and assistance, nothing has come to our attention that causes us to believe that any portion
of the Official Statement pertaining to the Consolidated Government contains any untrue
statement of a material fact or omits to state a material fact necessary to be stated therein in order
to make the statements therein, in light of the circumstances under which they were made, not
misleading.
The enforceability of the Consolidated Government Documents may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and principles of equity applicable to the availability
of specific performance and other equitable relief.
Very truly yours,
D-4
AO 1085751.2
.
EXHIBIT E
[SUPPLEMENTAL BOND COUNSEL OPINION]
March _, 2004
Augusta-Richmond County Coliseum Authority
Augusta, Georgia
Augusta-Richmond County Commission
Augusta, Georgia
Banc of America Securities LLC
Atlanta, Georgia
Re: $5,555,000 Augusta-Richmond County Coliseum Authority
Refunding Revenue Bonds, Series 2004
Ladies and Gentlemen:
We have acted as Bond Counsel in connection with the issuance of the above-referenced
bonds (the "Bonds"). Terms used and not otherwise defined herein shall have the meaning set
forth in the Official Statement hereinafter referred to.
In our capacity as Bond Counsel, we have examined the Official Statement of the
Augusta-Richmond County Coliseum Authority (the "Authority") and Augusta, Georgia, dated
March 16, 2004 (the "Official Statement"), relating to the Bonds and such other documents,
records, agreements and certificates of public officials as we have considered necessary or
appropriate to enable us to render the opinions expressed herein. In all such examinations, we
have assumed the genuineness of signatures on original documents and the conformity to
original documents of all copies submitted to us as certified, conformed or photographic copies,
and as to certificates of public officials, we have assumed the same to have been properly given
and to be accurate.
Based upon such examinations and premises above referred to, we are of the opinion that .
as of this date:
1. No registration of the Bonds under the Securities Act of 1933, as
amended, and no qualification of the Trust Indenture, dated as of March 1,2004, between
the Authority and Wachovia Bank, National Association, as trustee, under the Trust
AO 1085751.2
~
Indenture Act of 1939, as amended, is required in connection with the offer and sale of
the Bonds to the public.
2. We have reviewed the portions of the Official Statement appearing under
the captions "INTRODUCTION-Security and Sources of Payment for the Series 2004
Bonds,-Description of the Series 2004 Bonds,- Tax Exemption and-Legal
Authority," "THE SERIES 2004 BONDS" (other than the information under the caption
"-Book-Entry Only System"), "SECURITY AND SOURCES OF PAYMENT FOR
THE SERIES 2004 BONDS" (other than the information under the caption "Bond
Insurance") "PLAN OF FINANCING - The Refunding Program" and "LEGAL
MATTERS-Enforceability of Remedies, -Opinion of Bond Counsel, _ Discount and
Premium and -Bank Qualification," and in APPENDIX A, and are of the opinion that the
statements made under such captions fairly summarize the matters or portions thereof
purported to be summarized therein. We express no further opinion regarding the
accuracy of the Official Statement or its sufficiency for any purpose.
Very truly yours,
MURRAY BARNES LLP
By:
E-2
AO 1085751.2