HomeMy WebLinkAboutBOND RESOLUTION TO PROVIDE FOR THE ISSUANCE OF SOLID WASTE MANAGEMENT AUTHORITY OF AUGUSTA REVENUE SERIES 2010 A BOND RESOLUTION TO PRO DE FOR THE ISSUANCE OF SOLID
WASTE MANAGEMENT AUT ORITY OF AUGUSTA REVENUE
BONDS, SERIES 2010, IN AN A e GREGATE PRINCIPAL AMOUNT OF
$9,165,000; TO PROVIDE FUN 1 S TO PAY OR TO BE APPLIED
TOWARD THE COST OF IMP' OVING AND EQUIPPING AUGUSTA,
GEORGIA'S MUNICIPAL SOLID WASTE FACILITY AND TO PAY
EXPENSES ASSOCIATED THEI' WITH; TO PROVIDE FOR THE
FORM OF THE SERIES 2010 BONDS; TO PROVIDE FOR THE
CREATION AND MAINTENANC OF CERTAIN FUNDS; TO PROVIDE
REMEDIES FOR THE OWNER' OF SAID BONDS; TO AUTHORIZE
AND APPROVE THE EXEC TION AND DELIVERY OF AN
INTERGOVERNMENTAL CON RACT WITH AUGUSTA, GEORGIA;
AND FOR OTHER PURPOSES
A s opted on
Dece ber 7, 2010
This document was prepared by:
Murray Barnes Finister LLP
One Capital Authority Plaza, Suite 1140
3350 Peachtree Road
Atlanta, GA 30326
Telephone: (678) 999 -0353
BOND RESOLUTION
TABLE OF CONTENTS
(The Table of Contents for this Resolution is for convenience of reference only and is not
intended to define, limit or describe the scope or intent of any provisions of this Resolution.)
ARTICLE I DEFINITIONS AND FINDINGS 3
Section 101. Definitions of Certain Terms. 3
Section 102. Rules of Construction. 8
Section 103. Findings 8
ARTICLE II AUTHORIZATION, FORM AND REGISTRATION OF THE SERIES
2010 BONDS 9
Section 201. Authorization and Terms of the Series 2010 Bonds. 9
Section 202. Payment of Principal and Interest; Certificate of Validation and
Authentication; Execution of the Series 2010 Bonds. 10
Section 203. Registration of Series 2010 Bonds; Transfer and Exchange. 11
Section 204. Lost, Destroyed, Mutilated Series 2010 Bonds. 11
Section 205. Blank Series 2010 Bonds. 12
Section 206. Security; Limited Obligation. 12
Section 207. Cancellation of Series 2010 Bonds. 13
Section 208. Form of the Series 2010 Bonds 13
Section 209. Global Form; Securities Depository; Ownership of Series 2010
Bonds. 13
ARTICLE III REDEMPTION OF THE SERIES 2010 BONDS 16
Section 301. Redemption of Series 2010 Bonds 16
Section 302. Mandatory Sinking Fund Redemption 16
Section 303. Procedure and Notice of Redemption. 16
Section 304. Selection of Series 2010 Bonds to be Redeemed 17
Section 305. Purchase in Open Market 17
Section 306. Effect of Call for Redemption 18
ARTICLE IV ADVANCES AND APPLICATION OF BOND PROCEEDS 19
Section 401. Application of Bond Proceeds. 19
ARTICLE V CONSTRUCTION FUND; CONSTRUCTION OF PROJECT 20
Section 501. Creation of Construction Fund 20
Section 502. Authorized Construction Fund Disbursements. 20
Section 503. Requisition Procedure. 22
Section 504. Completion of the Project. 22
Section 505. Transfer Upon Event of Default. 22
ARTICLE VI SINKING FUND 23
Section 601. Source of Payment of Series 2010 Bonds. 23
Section 602. Sinking Fund. 23
Section 603. Repayment to the Consolidated Government from the Sinking
Fund. 24
Section 604. Transfers from the Sinking Fund. 24
Section 605. Investments of Sinking Fund Moneys. 24
Section 606. Lien on Funds. 25
ARTICLE VII DEPOSITORIES OF MONEYS AND SECURITIES FOR DEPOSIT;
DESIGNATION OF AUTHENTICATING AGENT; PAYING AGENT
AND BOND REGISTRAR 26
Section 701. Depositories and Custodians 26
Section 702. Administrative Fees and Expenses. 27
Section 703. Appointment of Paying Agent and Bond Registrar. 27
Section 704. Employment of Attorneys, Agents, Etc. 27
Section 705. Reliance on Documents. 27
Section 706. Evidence of Facts. 28
Section 707. Release of Liability. 28
ARTICLE VIII PARTICULAR COVENANTS AND FINDINGS 29
Section 801. Payment of Series 2010 Bonds. 29
Section 802. Management of Project. 29
Section 803. Maintenance of Insurance. 29
Section 804. Books and Records. 29
Section 805. Prohibited Activities; Project Covenants. 29
Section 806. No Diminishment of Lien Granted. 30
Section 807. Maintenance of Existence. 30
Section 808. Authority will not Cancel Contract 30
ARTICLE IX EVENTS OF DEFAULTS; REMEDIES 31
Section 901. Events of Default. 31
Section 902. Reserved 31
Section 903. Remedies 31
Section 904. Abandonment of Proceedings. 32
Section 905. Limitation of Actions by Bondholders; Equal Benefit. 32
Section 906. Non - Exclusivity of Remedies. 32
Section 907. Delays. 32
ARTICLE X DEFEASANCE 33
Section 1001. Payment and Defeasance. 33
Section 1002. Termination of Liability 33
ii
ARTICLE XI SUPPLEMENTAL RESOLUTIONS AND AMENDMENT OF
CONTRACT 35
Section 1101. Supplemental Resolutions Not Requiring Consent of Bondholders 35
Section 1102. Supplemental Resolutions Requiring Consent of Bondholders. 35
Section 1103. Amendments, etc., to Contract Not Requiring Consent of
Bondholders. 37
Section 1104. Amendments, etc., to Contract Requiring Consent of Bondholders. 37
Section 1105. Legal Action 37
Section 1106. Incorporation 38
ARTICLE XII MISCELLANEOUS PROVISIONS 39
Section 1201. Validation 39
Section 1202. Severability. 39
Section 1203. Resolution as a Contract. 39
Section 1204. Payments Due on Saturdays, Sundays and Holidays 39
Section 1205. Resolution Constitutes Trust Indenture. 39
Section 1206. Applicable Provisions of Law 40
Section 1207. Repeal of Conflicting Resolutions. 40
Section 1208. Authorization of Contract. 40
Section 1209. Waiver of Bond Audit 40
Section 1210. Approval and Authentication of Offering Documents; Winning
Bidder 40
Section 1211. No Individual Responsibility of Members and Officers of
Authority. 41
Section 1212. General Authority. 41
Section 1213. Consents of Bondholders. 41
Section 1214. Limitation of Rights. 42
Section 1215. Notices. 42
Section 1216. Acknowledgment of Acceptance of Contract. 43
Section 1217. Requirements and Conditions Met 43
EXHIBIT A - Form of Series 2010 Bonds
EXHIBIT B - Form of Contract
EXHIBIT C - Form of Requisition
EXHIBIT D - Description of Project
iii
A BOND RESOLUTION TO PROVIDE FOR THE ISSUANCE OF SOLID
WASTE MANAGEMENT AUTHORITY OF AUGUSTA REVENUE
BONDS, SERIES 2010, IN AN AGGREGATE PRINCIPAL AMOUNT OF
$9,165,000; TO PROVIDE FUNDS TO PAY OR TO BE APPLIED
TOWARD THE COST OF IMPROVING AND EQUIPPING AUGUSTA,
GEORGIA'S MUNICIPAL SOLID WASTE FACILITY AND TO PAY
EXPENSES ASSOCIATED THEREWITH; TO PROVIDE FOR THE
FORM OF THE SERIES 2010 BONDS; TO PROVIDE FOR THE
CREATION AND MAINTENANCE OF CERTAIN FUNDS; TO PROVIDE
REMEDIES FOR THE OWNERS OF SAID SERIES 2010 BONDS; TO
AUTHORIZE AND APPROVE THE EXECUTION AND DELIVERY OF
AN INTERGOVERNMENTAL CONTRACT WITH AUGUSTA,
GEORGIA; AND FOR OTHER PURPOSES
WHEREAS, the Solid Waste Management Authority of Augusta (the
"Authority ") has heretofore been created pursuant to the Regional Solid Waste Management
Authorities Act (Official Code of Georgia Annotated § 12 -8 -50 et seq.), as amended (the "Act "),
and the Authority is now existing and operating and its members have been duly appointed and
entered into their duties; and
WHEREAS, the Authority was created for the general purpose of collecting,
transporting, managing and disposing of solid waste in Augusta, Georgia (the "Consolidated
Government "); and
WHEREAS, pursuant to the authority granted in the Act, the Authority is
empowered to (a) acquire, construct, improve or modify, and to cause to be placed into operation
and operated, a project within the Consolidated Government and (b) pay all or part of the cost of
any project from proceeds of revenue bonds of the Authority; and
WHEREAS, the Consolidated Government is a political subdivision of the State
of Georgia, legally created and validly existing under the laws of the State of Georgia; and
WHEREAS, pursuant to the Constitution and the laws of the State of Georgia,
including the Revenue Bond Law, the Consolidated Government has the power to provide for the
collection, treatment, reuse or disposal of solid waste; and
WHEREAS, Article IX, Section III, Paragraph I of the Constitution of the State
of Georgia of 1983 provides that any ". . . county, municipality, school district or political
subdivision of the state may contract for any period not exceeding 50 years with each other or
any other public agency, public corporation, or public authority for joint services, for the
provision of services, or for joint or separate use of facilities or equipment; but such contracts
must deal with activities, services and facilities which the contracting parties are authorized by
law to undertake or provide ... "; and
WHEREAS, the Consolidated Government owns and operates a municipal solid
waste facility (the "Solid Waste Facility "); and
WHEREAS, the Authority and the Consolidated Government propose to make
certain improvements to the Solid Waste Facility, including improvements to and replacement of
the components of the gas collection and control system of the Solid Waste Facility (the
"Project "); and
WHEREAS, the Authority and the Consolidated Government have determined
that the Project should be constructed in accordance with, or substantially in accordance with, the
description of the Project attached hereto as Exhibit D, and by this reference hereby incorporated
herein and made a part hereof; and
WHEREAS, the Authority has determined that the improving and equipping of
the Project will require an expenditure of approximately $9,165,000, and that the best method of
raising the moneys required to finance the undertaking now contemplated is by the issuance and
sale of its revenue bonds, designated as "Solid Waste Management Authority of Augusta
Revenue Bonds, Series 2010," in an aggregate principal amount of $9,165,000 (the "Series 2010
Bonds "); and
WHEREAS, the Authority and the Consolidated Government propose to enter
into an Intergovernmental Contract, dated as of December 7, 2010 (the "Contract "), pursuant to
which the Authority will agree, among other things, to issue the Series 2010 Bonds to finance
costs of the Project; and in consideration therefor, the Consolidated Government will agree,
among other things, to cause the acquisition, construction and equipping of the Project and to
make payments to the Authority for such services and in such amounts sufficient to enable the
Authority to pay, when due, the principal of, redemption premium, if any, and interest on the
Series 2010 Bonds and other amounts due under the Bond Resolution and pledge its full faith
and credit and taxing power to the extent necessary to make the payment required by the
Contract; and
WHEREAS, the Authority has offered the Series 2010 Bonds for competitive
sale pursuant to an Official Notice of Sale and a Preliminary Official Statement (the "Preliminary
Official Statement "); and
WHEREAS, bids have been received pursuant to the Official Notice of Sale for
all of the Series 2010 Bonds and the Authority wishes to approve BB &T Capital Markets, a
division of Scott & Stringfellow Inc. (the "Purchaser ") as the winning bidder for the Series 2010
Bonds; and
WHEREAS, the Authority desires to ratify the preparation, use and distribution
of the Preliminary Official Statement with respect to the Series 2010 Bonds and to authorize the
preparation, use, execution and distribution of an Official Statement in connection with the
offering and sale of the Series 2010 Bonds; and
WHEREAS, the Authority desires to designate a Construction Fund Custodian, a
Sinking Fund Custodian and a Bond Registrar and Paying Agent; and
NOW, THEREFORE, BE IT RESOLVED, by the Solid Waste Management
Authority of Augusta, and it is hereby resolved by authority of same, as follows:
2
ARTICLE I
DEFINITIONS AND FINDINGS
Section 101. Definitions of Certain Terms.
In addition to the words and terms elsewhere defined in this Resolution (including
the preamble hereto), the following words and terms used in this Resolution shall have the
following meanings:
"Act" means the Regional Solid Waste Management Authorities Act (Official
Code of Georgia Annotated § 12 -8 -50 et seq.), as amended from time to time.
"Agent Member" means a member of, or participant in, the Securities Depository.
"Authority" means the Solid Waste Management Authority of Augusta, a public
body corporate and politic, created pursuant to the Act.
"Authorized Authority Representative" means the person at the time designated to
act on behalf of the Authority by written certificate furnished to the Consolidated Government
and the Construction Fund Custodian, containing the specimen signature of such person and
signed on behalf of the Authority by its Chairperson or Vice Chairperson. Such certificate or
any subsequent or supplemental certificate so executed may designate an alternate or alternates.
"Authorized Consolidated Government Representative" means the person at the
time designated to act on behalf of the Consolidated Government by written certificate furnished
to the Authority and the Construction Fund Custodian, containing the specimen signature of such
person and signed on behalf of the Consolidated Government by its Mayor or Mayor Pro
Tempore.
"Authorized Denominations" means $5,000 or any integral multiple thereof.
"Beneficial Owner" means the owners of a beneficial interest in the Series 2010
Bonds registered in Book -Entry Form.
"Bond Registrar" means the commercial bank appointed by the Authority to
maintain, in accordance with the provisions of this Resolution and any supplemental resolution,
the registration books of the Authority for the Series 2010 Bonds.
"Book -Entry Form" or "Book -Entry System" means, with respect to the Series
2010 Bonds, a form or system, as applicable, under which (a) the ownership of beneficial
interests in the Series 2010 Bonds and bond service charges may be transferred only through
book -entry and (b) physical Series 2010 Bonds in fully registered form are registered only in the
name of a Securities Depository or its nominee as holder, with physical Series 2010 Bonds in the
custody of a Securities Depository.
"Code" means the Internal Revenue Code of 1986, as amended and any
applicable regulations thereunder.
3
" Consolidated Government" means Augusta, Georgia, a political subdivision of
the State of Georgia, and any successor thereto.
"Construction Fund means the Solid Waste Management Authority of Augusta
Construction Fund 2010 created in Section 501 of this Resolution.
"Construction Fund Custodian" means the financial institution at the time serving
as construction fund custodian pursuant to Sections 501 and 701 of this Resolution; provided,
however, the Construction Fund Custodian shall at all times be a commercial bank.
"Contract" means the Intergovernmental Contract, dated as of December 1, 2010,
between the Authority and the Consolidated Government with respect to the Series 2010 Bonds,
as the same may be amended from time to time, a form of which is attached hereto as Exhibit B.
"Event of Default" means the occurrence of an event of default as described in
Article IX.
"Government Obligations" means (a) obligations of the United States and of its
agencies and instrumentalities, (b) obligations fully insured or guaranteed by the United States
government or United States government agency, (c) obligations of any corporation of the
United States government (including any obligations described in (a), (b) or (c) issued or held in
book -entry form on the books of the Department of the Treasury of the United States of
America) or (d) tax - exempt municipal obligations that have been defeased with obligations
described in (a), (b) or (c), which obligations, in any case, are rated in the highest rating category
by Moody's Investors Service, Inc. and Standard & Poor's Ratings Services, a division of The
McGraw -Hill Companies, Inc.
"Holders" or "Bondholders" mean the registered owners of the Series 2010
Bonds.
"Interest Payment Date" means each April 1 and October 1, commencing April 1,
2011.
"Outstanding Bonds" mean all of the Series 2010 Bonds which have been issued
pursuant to this Resolution, except:
(a) Series 2010 Bonds canceled because of payment; and
(b) Series 2010 Bonds for the payment of which funds shall have been
theretofore deposited with the Paying Agent (whether upon or prior to the maturity of any
such Series 2010 Bonds).
"Paying Agent" means the commercial bank appointed by the Authority to serve,
in accordance with the provisions of this Resolution and any supplemental resolution, as paying
agent for the Series 2010 Bonds pursuant to Section 703 of this Resolution.
4
"Permitted Investments" means and includes any of the following securities if and
to the extent the same are at the time legal for investment of Authority funds:
(a) the local government investment pool created in Chapter 83 of Title 36 of
the Official Code of Georgia Annotated, as amended;
(b) bonds or obligations of the State of Georgia, or of other counties,
municipal corporations, and political subdivisions of the State of Georgia;
(c) bonds or other obligations of the United States or of subsidiary
corporations of the United States government which are fully guaranteed by such
government;
(d) obligations of and obligations guaranteed by agencies or instrumentalities
of the United States government, including those issued by the Federal Land Bank, the
Federal Home Loan Bank, the Federal Intermediate Credit Bank, Bank for Cooperatives
and any other such agency or instrumentality now or hereafter in existence; provided,
however, that all such obligations shall have a current credit rating from a nationally
recognized rating service of at least one of the three highest rating categories available
and have a nationally recognized market;
(e) bonds or other obligations issued by any public housing agency or
municipal corporation in the United States, which such bonds or obligations are fully
secured as to the payment of both principal and interest by a pledge of annual
contributions under an annual contributions contract or contracts with the United States
government, or project notes issued by any public housing agency, urban renewal agency,
or municipal corporation in the United States which are fully secured as to payment of
both principal and interest by a requisition, loan, or payment agreement with the United
States government;
(0 certificates of deposit of national or state banks located within the State of
Georgia which have deposits insured by the Federal Deposit Insurance Corporation and
certificates of deposit of federal savings and loan associations and state building and loan
or savings and loan associations located within the State of Georgia which have deposits
insured by the Savings Association Insurance Fund of the Federal Deposit Insurance
Corporation or the Georgia Credit Union Deposit Insurance Corporation, including the
certificates of deposit of any bank, savings and loan association, or building and loan
association acting as depository, custodian, or trustee for any of the proceeds of the
Certificates. The portion of such certificates of deposit in excess of the amount insured
by the Federal Deposit Insurance Corporation, the Savings Association Insurance Fund of
the Federal Deposit Insurance Corporation or the Georgia Credit Union Deposit
Insurance Corporation, if any, shall be secured by deposit, with the Federal Reserve Bank
of Atlanta, Georgia, or with any national or state bank or federal savings and loan
association or state building and loan or savings and loan association located within the
State of Georgia or other states or with a trust office located within the State of Georgia,
of one or more of the following securities in an aggregate principal amount equal at least
to the amount of such excess: direct and general obligations of the State of Georgia or
5
other states or of any county or municipal corporation in the State of Georgia, obligations
of the United States or subsidiary corporations referred to in paragraph (c) above,
obligations of the agencies and instrumentalities of the United States government referred
to in paragraph (d) above, or bonds, obligations, or project notes of public housing
agencies, urban renewal agencies, or municipalities referred to in paragraph (e) above;
(g) securities of or other interests in any no -load, open -end management type
investment company or investment trust registered under the Investment Company Act of
1940, as from time to time amended, or any common trust fund maintained by any bank
or trust company which holds such proceeds as trustee or by an affiliate thereof so long
as:
(i) the portfolio of such investment company or investment trust or
common trust fund is limited to the obligations referred to in paragraphs (c) and
(d) above and repurchase agreements fully collateralized by any such obligations;
(ii) such investment company or investment trust or common trust
fund takes delivery of such collateral either directly or through an authorized
custodian;
(iii) such investment company or investment trust or common trust
fund is managed so as to maintain its shares at a constant net asset value; and
(iv) securities of or other interests in such investment company or
investment trust or common trust fund are purchased and redeemed only through
the use of national or state banks having corporate trust powers and located within
the State of Georgia; and
(h) interest - bearing time deposits, repurchase agreements, reverse repurchase
agreements, rate guarantee agreements, or other similar banking arrangements with a
bank or trust company having capital and surplus aggregating at least $50 million or with
any government bond dealer reporting to, trading with, and recognized as a primary
dealer by the Federal Reserve Bank of New York having capital aggregating at least $50
million or with any corporation which is subject to registration with the Board of
Governors of the Federal Reserve System pursuant to the requirements of the Bank
Holding Company Act of 1956, provided that each such interest - bearing time deposit,
repurchase agreement, reverse repurchase agreement, rate guarantee agreement or other
similar banking arrangement shall permit the moneys so placed to be available for use at
the time provided with respect to the investment or reinvestment of such moneys; and
(i) any other investments authorized by the laws of the State of Georgia from
time to time.
"Person" means any natural person, firm, association, corporation, limited liability
company, partnership, joint stock company, joint venture, trust, unincorporated organization or firm,
or a government or any agency or political subdivision thereof or other public body.
6
"Pledged Revenues" means the revenues described in Section 206 of this
Resolution.
"Project" means the improvements to the Solid Waste Facility, including
improvements to and replacement of components of the gas collection and control system of the
Solid Waste Facility to be acquired, constructed and equipped with the proceeds of the Series
2010 Bonds, as described in more detail in Exhibit D, attached hereto and by this reference
incorporated herein.
" Record Date" means with respect to any Interest Payment Date, the fifteenth
(15th) day of the calendar month next preceding such Interest Payment Date.
"Resolution" means this Bond Resolution, including any amendments or
supplements hereto.
"Revenue Bond Law" means Article 3 of Chapter 82 of Title 36 of the Official
Code of Georgia Annotated, entitled the "Revenue Bond Law," as amended.
"Securities Depository" means any securities depository that is a "clearing
corporation" within the meaning of the New York Uniform Commercial Code and a "clearing
agency" registered pursuant to provisions of Section 17A of the Securities Exchange Act of
1934, operating and maintaining, with its Participants or otherwise, a Book -Entry System to
record ownership of beneficial interest in bonds and bond service charges, and to effect transfers
of bonds in Book -Entry Form, and means, initially, The Depository Trust Company (a limited
purpose trust company), New York, New York.
"Securities Depository Nominee" means any nominee of a Securities Depository
and shall initially mean Cede and Co., New York, New York, as nominee of The Depository
Trust Company.
"Series 2010 Bonds" means the Authority's Revenue Bonds, Series 2010, in an
aggregate principal amount of $9,165,000, authorized to be issued pursuant to Article II of this
Bond Resolution.
"Sinking Fund" means the Solid Waste Authority of Augusta Sinking Fund 2010
created in Section 602 of this Resolution.
"Sinking Fund Custodian" means the financial institution at the time serving as
sinking fund custodian pursuant to Sections 602 and 701 of this Resolution; provided that the
Sinking Fund Custodian shall at all times be a commercial bank.
"Sinking Fund Investments" means (a) Government Obligations and forward
purchase agreements and repurchase agreements with respect thereto, (b) demand deposits or
certificates of deposit of banks which have deposits insured by the Federal Deposit Insurance
Corporation; provided, however, that the portion of such certificates of deposit in excess of the
amount insured by the Federal Deposit Insurance Corporation must be secured by direct
obligations of the State of Georgia or the United States which are of a par value equal to that
7
portion of such certificates of deposit which would be uninsured, and (c) the local government
investment pool established by Section 36 -83 -8 of the Official Code of Georgia Annotated.
"Sinking Fund Year" means the period commencing on October 2 of each year
and extending through October 1 in the next year.
"State" means the State of Georgia.
"Unassigned Rights" means all of the rights of the Authority to receive
reimbursements and payments pursuant to Sections 6.12 and 8.4 of the Contract, and to be held
harmless and indemnified pursuant to Section 6.12 of the Contract.
Section 102. Rules of Construction.
Words of the masculine gender shall be deemed and construed to include
correlative words of the feminine and neuter genders. Unless the context shall otherwise
indicate, the words "certificate," "owner," "holder," and "person" shall include the plural, as well
as the singular, number. The terms "herein," "hereby," "hereunder," "hereof," "hereinbefore,"
"hereinafter" and other equivalent words refer to this Resolution and not solely to the particular
portion hereof in which any such term is used.
The titles preceding each Section hereof are for convenience of reference only and
are not intended to define, limit or describe the scope or intent of any provisions of this
Resolution. Reference herein to an Article number or to a Section number should be construed
to be in reference to the designated Article number or Section number hereof unless the context
or use clearly indicates another or different meaning or intent.
Section 103. Findings.
The financing of the Project by the issuance of the Series 2010 Bonds is hereby
found and declared to be within the public purposes intended to be served by the Authority. The
Project will be located within the Consolidated Government.
8
ARTICLE II
AUTHORIZATION, FORM AND REGISTRATION OF THE SERIES 2010 BONDS
Section 201. Authorization and Terms of the Series 2010 Bonds.
(a) Under the authority of the Act and the Revenue Bond Law, there is
authorized to be issued revenue bonds to be designated "Solid Waste Management Authority of
Augusta Revenue Bonds, Series 2010," in an aggregate p rincipa l amount of $9,165,000. The
proceeds of the Series 2010 Bonds will be used for the purpose of (i) acquiring, constructing,
installing and equipping the Project and (ii) paying the costs of issuing the Series 2010 Bonds.
(b) The Series 2010 Bonds shall be dated their date of original issue, shall be
in the form of fully registered bonds numbered R -1 upward, shall be in Authorized
Denominations, shall bear interest (based on a 360 -day year comprised of twelve 30 -day months)
from the Interest Payment Date next preceding their date of authentication to which interest has
been paid (unless their date of authentication is an Interest Payment Date, in which case from
such Interest Payment Date, unless their date of authentication is after a Record Date but before
an Interest Payment Date, in which case from the next Interest Payment Date, or unless their date
of authentication is before the first Interest Payment Date, in which case from their date of issue)
at the rates per annum set forth below. The interest shall be payable April 1, 2011 and
semiannually thereafter on the 1st days of April and October in each year, and the principal shall
mature on the 1st day of October in the years and amounts set forth below.
Year Amount Interest Rate
2011 $250,000 3.000%
2012 330,000 3.000
2013 340,000 3.250
2014 350,000 3.500
2015 365,000 4.000
2016 380,000 4.000
2017 395,000 4.000
2018 410,000 4.000
2019 425,000 4.000
2020 445,000 3.125
2021 455,000 3.250
2022 470,000 4.000
2023 490,000 4.000
2024 510,000 4.000
2025 530,000 4.000
2030 3,020,000 4.500
9
Section 202. Payment of Principal and Interest; Certificate of Validation
and Authentication; Execution of the Series 2010 Bonds.
(a) Unless the Series 2010 Bonds are held in Book -Entry Form, the principal
of the Series 2010 Bonds shall be payable by the Paying Agent upon presentation and surrender
thereof at the principal corporate trust office of the Paying Agent. Unless the Series 2010 Bonds
are held in Book -Entry Form, payments of interest on the Series 2010 Bonds shall be made by
check or draft and mailed, by first class mail on the Interest Payment Date to the registered
owner as shown on the bond registration book kept by the Bond Registrar at the close of business
on the Record Date, notwithstanding any registration of transfer or exchange subsequent to such
Record Date and prior to such Interest Payment Date. Notwithstanding the foregoing, interest on
the Series 2010 Bonds shall be paid to any registered owner of more than $1,000,000 in
aggregate principal amount of the Series 2010 Bonds by wire transfer to such registered owner if
written instructions are given to the Paying Agent prior to the 15 day preceding the Interest
Payment Date, and interest shall continue to be so paid until such wire instructions are revoked
in writing. While the Series 2010 Bonds are held in Book -Entry Form, principal and interest
shall be payable as provided in Section 208 hereof. Both the principal of and interest on the
Series 2010 Bonds shall be payable in lawful money of the United States of America.
(b) The Series 2010 Bonds shall not be valid unless and until a certificate of
validation printed on or attached to the Series 2010 Bonds shall have been executed by the
manual or facsimile signature of the Clerk of the Superior Court of Richmond County, and the
official seal of such Court shall be impressed thereon. The Series 2010 Bonds shall not be valid
unless a certificate of authentication printed on or attached to the Series 2010 Bonds shall have
been executed by the manual signature of the Bond Registrar.
(c) The Series 2010 Bonds shall be signed by the manual or facsimile
signature of the Chairperson of the Authority, and the corporate seal of the Authority shall be
affixed to or printed on the Series 2010 Bonds and attested by the manual or facsimile signature
of the Secretary of the Authority. In case any officer whose signature shall appear on the Series
2010 Bonds shall cease to be such officer before delivery of the Series 2010 Bonds, such
signatures shall nevertheless be valid and sufficient for all purposes the same as if such officer
had remained in office until such delivery.
(d) Only those Series 2010 Bonds which shall have endorsed thereon a
certificate of authentication and registration substantially in the form contained in the form of the
Series 2010 Bond attached as Exhibit A hereto, duly executed by the manual signature of an
authorized officer of the Bond Registrar shall be entitled to any benefit or security under this
Resolution and such certificate upon any of such bonds when duly executed shall be conclusive
evidence that such bond has been duly authenticated, registered and delivered. It shall not be
necessary that the same authorized signatory of the Bond Registrar sign the certificate of
authentication and registration on all of the Series 2010 Bonds that may be issued hereunder at
any one time. The person in whose name any Series 2010 Bond shall be registered shall be
deemed and regarded as the absolute owner thereof for all purposes and the payment of the
principal amount, interest and premium, if any, shall be made only to or upon the order of the
registered owner thereof. All such payments shall be valid and effectual to satisfy and discharge
10
the liability upon such bond, including redemption premium, if any, and the interest thereon to
the extent of the sums so paid.
Section 203. Registration of Series 2010 Bonds; Transfer and Exchange.
The Bond Registrar shall keep the bond registration book of the Authority for the
registration of the Series 2010 Bonds and for the registration of transfers of the Series 2010
Bonds as herein provided. Unless the Series 2010 Bonds are held in Book -Entry Form, the
transfer of any Series 2010 Bond shall be registered upon the bond registration book upon the
surrender and presentation of the Series 2010 Bond to the Bond Registrar duly endorsed for
transfer or accompanied by an assignment duly executed by the registered owner or attorney duly
authorized in writing in such form as shall be satisfactory to the Bond Registrar. Upon any such
registration of transfer, the Bond Registrar shall authenticate and deliver in exchange for such
Series 2010 Bond or Series 2010 Bonds so surrendered, a new Series 2010 Bond or Series 2010
Bonds registered in the name of the transferee, in any denomination or denominations authorized
by this Resolution, and in an aggregate principal amount equal to the aggregate principal amount
of the Series 2010 Bonds so surrendered and of the same series, maturity and interest rate.
Unless the Series 2010 Bonds are held in Book -Entry Form, any Series 2010 Bond, upon
presentation and surrender thereof to the Bond Registrar, together with an assignment duly
executed by the registered owner or duly authorized attorney, in such form as may be satisfactory
to the Bond Registrar, may be exchanged, at the option of the registered owner, for an equal
aggregate principal amount of Series 2010 Bonds of the same series, maturity and interest rate of
the Series 2010 Bond so surrendered and of any Authorized Denomination. The Bond Registrar
may make a charge for every exchange or registration of transfer of the Series 2010 Bonds
sufficient to reimburse it for any tax or other governmental charge required to be paid with
respect to such exchange or registration of transfer, but no other charge shall be made to the
owner for the privilege of exchanging or registering the transfer of Series 2010 Bonds under this
Resolution. While the Series 2010 Bonds are held in Book -Entry Form, exchanges and
registrations of transfers shall be made in accordance with Section 209 hereof. The registered
owner of the Series 2010 Bonds shall be treated as the owner of the Series 2010 Bonds for all
purposes regardless of any actual knowledge to the contrary.
Section 204. Lost, Destroyed, Mutilated Series 2010 Bonds.
If any of the Series 2010 Bonds shall become mutilated, the Bond Registrar in its
discretion and at the expense of the owner of such bond shall authenticate and deliver a new
bond of the same series and of like tenor registered in the name of the owner in exchange and
substitution for such mutilated bond. If any Series 2010 Bond shall become lost, destroyed or
wrongfully taken, evidence of such loss, destruction or wrongful taking within a reasonable time
thereafter may be submitted to the Authority and if such evidence shall be satisfactory and
indemnity of a character and in an amount satisfactory to the Authority shall be given, then the
Authority shall at the expense of the owner cause a new bond of the same series and of like tenor
registered in the name of the owner to be authenticated by the Bond Registrar and delivered to
the registered owner.
11
Section 205. Blank Series 2010 Bonds.
The Authority shall make all necessary and proper provisions for the transfer and
exchange of the Series 2010 Bonds by the Bond Registrar and the Authority shall deliver or
cause to be delivered to the Bond Registrar a sufficient quantity of blank Series 2010 Bonds duly
executed on behalf of the Authority, together with the certificate of validation pertaining thereto
duly executed by the Clerk of the Superior Court of Richmond County, as herein provided in
order that the Bond Registrar shall at all times be able to register and authenticate the Series
2010 Bonds at the earliest practicable time in accordance with the provisions of this Resolution.
All Series 2010 Bond surrendered in any such exchange or registration of transfer shall be
forthwith canceled by the Bond Registrar and a record thereof duly entered in the permanent
records pertaining to the Series 2010 Bonds maintained by the Bond Registrar.
Section 206. Security; Limited Obligation.
In order to secure the payment of the principal of, and the interest on, all Series
2010 Bonds issued under this Resolution according to their tenor and effect, and the performance
and observance of each and every one of the covenants and conditions herein and in the Series
2010 Bonds contained, the Authority has pledged, assigned and set over, and by these presents
does pledge, assign and set over, all to the extent and upon the conditions herein set forth, unto
the Bondholders and their successors and assigns forever:
(a) all right, title and interest of the Authority in, to and under the Contract
and all revenues to be received by the Authority therefrom (excluding the Unassigned
rights under the Contract);
(b) all amounts held in the Construction Fund and the Sinking Fund; and
(c) any and all other property of every kind and nature from time to time
which heretofore or hereafter is by delivery or by writing of any kind conveyed,
mortgaged, pledged, assigned or transferred, as and for additional security hereunder, by
the Authority or by any other person, firm or corporation with the consent of the
Authority.
The Series 2010 Bonds, together with interest thereon, shall be limited and not
general obligations of the Authority giving rise to no pecuniary liability of the Authority, shall be
payable solely from the revenues and receipts derived by the Sinking Fund and the Authority
under the Contract, and shall be a valid claim of the respective owners thereof only against such
fund and the revenues and receipts from the Contract which have been pledged to such fund,
which revenues and receipts are hereby again specifically pledged and assigned for the equal and
ratable payment of the Series 2010 Bonds and shall be used for no other purpose than to pay the
principal of, premium, if any, and interest on the Series 2010 Bonds, except as may be otherwise
expressly authorized in this Resolution. The Series 2010 Bonds and the interest thereon shall not
constitute a general or moral obligation of the Authority nor a debt, indebtedness, or obligation
of, or a pledge of the faith and credit of the Consolidated Government, the State, or any other
political subdivision within the meaning of any constitutional or statutory provision whatsoever.
Neither the faith and credit nor the taxing power of the Consolidated Government, the State of
12
Georgia, or any political subdivision thereof is pledged to the payment of the principal of,
premium, if any, or interest on the Series 2010 Bonds. The Authority has no taxing power.
The lien created on the moneys and securities in the Sinking Fund and
Construction Fund, moneys payable to the Authority under the Contract and any other moneys or
funds pledged therefor to secure the Series 2010 Bonds shall be prior and superior to any lien
that may be hereafter created to secure any obligations having as their security a lien on such
moneys, and the Series 2010 Bonds shall enjoy a first lien on all of the moneys described above.
Section 207. Cancellation of Series 2010 Bonds.
If a Series 2010 Bond is paid, purchased or redeemed in full, either at or before
maturity, it shall be delivered to the Bond Registrar when such payment, purchase or redemption
is made, and the Series 2010 Bond shall thereupon be cancelled and shall not be reissued. If a
Series 2010 Bond is so cancelled, it shall be destroyed in accordance with the prevailing practice
of the Bond Registrar and a permanent record of such destruction shall be kept by the Bond
Registrar.
Section 208. Form of the Series 2010 Bonds.
The Series 2010 Bonds, the form of assignment, the form of authentication
certificate and the certificate of validation shall be in substantially in the form set forth in Exhibit
A hereto, with such variations, omissions and insertions as are required or permitted by this
Resolution.
Section 209. Global Form; Securities Depository; Ownership of Series 2010
Bonds.
(a) Upon the initial issuance, the ownership of each Series 2010 Bond shall be
registered in the name of the Securities Depository or the Securities Depository Nominee, and
ownership thereof shall be maintained in Book -Entry Form by the Securities Depository for the
account of the Agent Members thereof. Initially, each maturity of the Series 2010 Bonds shall be
registered in the name of Cede & Co., as the nominee of The Depository Trust Company. The
payment of principal of and interest on the Series 2010 Bonds, transfers of Series 2010 Bonds,
the receipt of notices and all similar provisions will be governed by rules established by the
Securities Depository from time to time. Beneficial Owners will not receive Series 2010 Bonds
from the Paying Agent evidencing their ownership interests. Except as provided in subsection
(c) of this Section 209, the Series 2010 Bonds may be transferred, in whole but not in part, only
to the Securities Depository or the Securities Depository Nominee, or to a successor Securities
Depository selected or approved by the Authority or to a nominee of such successor Securities
Depository.
(b) With respect to Series 2010 Bonds registered in the name of the Securities
Depository or the Securities Depository Nominee, the Consolidated Government, the Paying
Agent and the Bond Registrar shall have no responsibility or obligation to any Agent Member or
Beneficial Owner. Without limiting the foregoing, neither the Authority, the Consolidated
Government, the Paying Agent, the Bond Registrar nor their respective affiliates shall have any
responsibility or obligation with respect to:
13
(i) the accuracy of the records of the Securities Depository, the Securities
Depository Nominee or any Agent Member with respect to any beneficial ownership
interest in the Series 2010 Bonds;
(ii) the delivery to any Agent Member, any Beneficial Owner or any other
person, other than the Securities Depository or the Securities Depository Nominee, of any
notice with respect to the Series 2010 Bonds; or
(iii) the payment to any Agent Member, any Beneficial Owner or any other
person, other than the Securities Depository or the Securities Depository Nominee, of any
amount with respect to the principal, premium, if any, or interest on the Series 2010
Bonds.
So long as any Series 2010 Bonds are registered in Book -Entry Form, the
Authority, the Consolidated Government and the Paying Agent may treat the Securities
Depository as, and deem the Securities Depository to be, the absolute owner of such Series 2010
Bonds for all purposes whatsoever, including without limitation:
(i) the payment of principal of, premium, if any, and interest on such Series
2010 Bonds;
(ii) giving notices of redemption and other matters with respect to the Series
2010 Bonds;
(iii) registering transfers with respect to such Series 2010 Bonds;
(iv) the selection of Series 2010 Bonds for redemption; and
(v) voting and obtaining consents under this Resolution.
So long as any Series 2010 Bonds are registered in Book -Entry Form, the Paying
Agent shall pay all principal of, premium, if any, and interest on the Series 2010 Bonds only to
the Securities Depository or the Securities Depository Nominee as shown in the bond register,
and all such payments shall be valid and effective to fully discharge the Authority's obligations
with respect to payment of principal of, premium, if any, and interest on the Series 2010 Bonds
to the extent so paid.
(c) If at any time (i) the Consolidated Government determines that the
Securities Depository is incapable of discharging its responsibilities described herein, (ii) if the
Securities Depository notifies the Authority and the Consolidated Government that it is unwilling
or unable to continue as Securities Depository with respect to the Series 2010 Bonds, or (iii) if
the Securities Depository shall no longer be registered or in good standing under the Securities
Exchange Act of 1934 or other applicable statute or regulation and a successor Securities
Depository is not appointed by the Consolidated Government within 90 days after the
Consolidated Government receives notice or becomes aware of such condition, as the case may
be, then this Section 208 shall no longer be applicable and the Authority shall execute and the
Bond Registrar shall authenticate and deliver certificates representing the Series 2010 Bonds to
the owners of the Series 2010 Bonds. Series 2010 Bonds issued pursuant to this subsection (c)
14
shall be registered in such names and authorized denominations as the Securities Depository,
pursuant to instructions from the Agent Member or otherwise, shall instruct the Bond Registrar.
Upon exchange, the Bond Registrar shall deliver such certificates representing the Series 2010
Bonds to the persons in whose names such Series 2010 Bonds are so registered on the business
day immediately preceding the date of such exchange.
15
ARTICLE III
REDEMPTION OF THE SERIES 2010 BONDS
Section 301. Redemption of Series 2010 Bonds.
The Series 2010 Bonds maturing on October 1, 2021 and thereafter are subject to
redemption prior to maturity, at the option of the Authority, on or after April 1, 2021, in whole or
in part at any time (in any order of maturity and by lot within a maturity), at a redemption price
equal to the principal amount of the Series 2010 Bonds to be redeemed, plus accrued interest to
the redemption date.
Section 302. Mandatory Sinking Fund Redemption.
The Series 2010 Bonds maturing on October 1, 2030 are subject to mandatory
sinking fund redemption prior to their maturity at a redemption price equal to 100% of the
principal amount thereof being redeemed, plus accrued interest, on October 1 of the following
years and in the following amounts (the October 1, 2030 amount to be paid rather than
redeemed):
Year Amount
2026 $550,000
2027 575,000
2028 605,000
2029 630,000
2030 660,000
At its option, to be exercised on or before the 45th day next preceding such
scheduled maturity redemption date, the Authority, may (a) receive a credit with respect to its
scheduled mandatory redemption obligation for any Series 2010 Bonds subject to scheduled
mandatory redemption which are delivered to the Paying Agent for cancellation and not
theretofore applied as a credit against a scheduled mandatory redemption obligation or
(b) receive a credit with respect to its scheduled mandatory redemption obligation for any Series
2010 Bonds which prior to said date have been redeemed (otherwise than through scheduled
mandatory redemption) and canceled by the Paying Agent and not theretofore applied as a credit
against said scheduled mandatory redemption obligation. Each Series 2010 Bond so delivered or
previously redeemed shall be credited by the Paying Agent, at the principal amount thereof to the
obligation of the Authority on such scheduled mandatory redemption date and the principal
amount of the Series 2010 Bonds to be redeemed by operation of such scheduled mandatory
redemption on such date shall be accordingly reduced.
Section 303. Procedure and Notice of Redemption.
Not more than 60 days and not less than 30 days before any date upon which any
such redemption is to be made a notice of redemption describing the conditions of the
redemption call (if any) and designating the Series 2010 Bonds to be redeemed shall be mailed,
postage prepaid, to all registered owners of the Series 2010 Bonds to be redeemed at addresses
16
which appear upon the bond registration book as of the date of giving such notice. It is expressly
provided, however, that the failure to receive any such notice or any defect therein shall not
affect the validity of the proceedings for such redemption or cause the interest to continue to
accrue on the principal amount of the Series 2010 Bonds so designated for redemption.
Section 304. Selection of Series 2010 Bonds to be Redeemed.
Series 2010 Bonds may be redeemed only in the principal amount of Authorized
Denominations of the Series 2010 Bonds. No portion of a Series 2010 Bond may be redeemed
that would result in a Series 2010 Bond which is smaller than the then permitted minimum
Authorized Denomination. For this purpose, the Paying Agent shall consider each Series 2010
Bond in a denomination larger than the minimum Authorized Denomination permitted at the
time to be separate Series 2010 Bonds each in the minimum Authorized Denomination.
Provisions of this Resolution that apply to Series 2010 Bonds called for redemption also apply to
portions of Series 2010 Bonds called for redemption.
If less than all Series 2010 Bonds of a particular maturity are to be redeemed, the
Series 2010 Bonds to be redeemed shall be selected by the Paying Agent by lot.
Any Series 2010 Bond which is to be redeemed only in part shall be surrendered
at the place of payment therefor (with, if the Paying Agent so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Paying Agent duly executed by, the
owner thereof or his attorney or legal representative duly authorized in writing) and the Paying
Agent shall authenticate and deliver to the owner of such Series 2010 Bond, without service
charge, a new Series 2010 Bond or Series 2010 Bonds of any Authorized Denomination or
denominations as requested by such owner in the aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Series 2010 Bond so surrendered. If
the owner of any such Series 2010 Bond shall fail to present such Series 2010 Bond to the
Paying Agent for payment and exchange as aforesaid, said Series 2010 Bond shall, nevertheless,
become due and payable on the redemption date to the extent of the unit or units of principal
amount in minimum Authorized Denominations called for redemption (and to that extent only).
The Paying Agent shall promptly notify the Authority in writing of the Series
2010 Bonds selected for redemption and, in the case of any Series 2010 Bond selected for partial
redemption, the principal amount thereof to be redeemed.
Notwithstanding the foregoing, the selection of Series 2010 Bonds to be redeemed
shall be made in accordance with the Book -Entry System as long as the Series 2010 Bonds are
held in Book -Entry Form.
Section 305. Purchase in Open Market.
Nothing herein contained shall be construed to limit the right of the Authority to
purchase with any excess moneys the Series 2010 Bonds in the open market at a price not
exceeding the callable price. Any such Series 2010 Bonds so purchased cannot be reissued and
shall be canceled.
17
Section 306. Effect of Call for Redemption.
Notice having been given in the manner and under the conditions hereinabove
provided, the Series 2010 Bonds so designated for redemption shall, on the redemption date
designated in such notice, become and be due and payable at the redemption price specified in
Section 301, and from and after the date of redemption so designated, unless default shall be
made in the payment of the Series 2010 Bonds so designated for redemption, interest on the
Series 2010 Bonds so designated for redemption shall cease to accrue, such Series 2010 Bonds or
portions of such Series 2010 Bonds will cease to be entitled to any lien, benefit or security under
this Resolution, and the owners of such Series 2010 Bonds or portions of Series 2010 Bonds will
have no rights in respect thereof except to receive payment of the redemption price thereof.
18
ARTICLE IV
ADVANCES AND APPLICATION OF BOND PROCEEDS
Section 401. Application of Bond Proceeds.
(a) The amount needed to pay the underwriting discount shall be retained by
the Purchaser.
(b) The balance shall be deposited into the Construction Fund to pay the costs
of the Project and the remaining costs of issuing the Series 2010 Bonds.
Notwithstanding the foregoing, if the Chairperson of the Authority shall
determine that a different application of funds is required to carry out the intent of this resolution
(including, but not limited to, the payment of the premium for a municipal bond insurance
policy), the different application of funds may be provided for in a supplemental resolution or the
Chairperson may provide for such different application of funds in the authentication order to be
delivered at the time of issuance of the Series 2010 Bonds.
19
ARTICLE V
CONSTRUCTION FUND; CONSTRUCTION OF PROJECT
Section 501. Creation of Construction Fund.
There is hereby created a special trust fund to be designated the "Solid Waste
Management Authority of Augusta Construction Fund 2010" to be maintained by the
Construction Fund Custodian. Upon the issuance of the Series 2010 Bonds, there shall be
deposited into the Construction Fund the moneys specified in Section 401.
All moneys deposited into the Construction Fund shall be held in trust by the
Construction Fund Custodian separate and apart from all other funds of the Authority and
withdrawn only in accordance with the provisions and restrictions set forth in this Article. The
Authority and the Construction Fund Custodian will not cause or permit to be paid from the
Construction Fund any sums except in accordance herewith; provided, however, that any moneys
in the Construction Fund not needed at the time for the payment of current obligations during the
course of the acquisition and construction of the Project with respect to which such moneys were
deposited, may, upon direction of the Consolidated Government in writing or by telephone and
confirmed in writing, and subject to Section 805 hereof, be invested and reinvested by the
Construction Fund Custodian in Permitted Investments and shall be held by the Construction
Fund Custodian for the account of the Construction Fund until maturity or until sold. At
maturity or upon such sale, the proceeds received therefrom, including accrued interest and
premium (if any) shall be immediately deposited by Construction Fund Custodian in the
Construction Fund and shall be disposed of in the manner and for the purposes hereinafter
provided or permitted. provided that no such investment shall be made unless the same shall
mature or be subject to redemption at the Construction Fund Custodian's option on or before the
earlier of (i) three years from the date of purchase, or (ii) the date or dates on which the moneys
so invested will be required to be used for construction purposes.
Section 502. Authorized Construction Fund Disbursements.
Withdrawals from the Construction Fund may be made for the purpose of paying
(including the reimbursing of the Authority or the Consolidated Government for advances from
their other funds to accomplish the purposes hereinafter described) the cost of the Project,
including the purchase of such property and equipment as may be useful in connection therewith,
and, without intending thereby to limit or to restrict or to extend any proper definition of such
cost contained in the Act, as it has been amended and as it may hereafter be amended, shall
include:
(a) payment of (i) the cost of the preparation of plans and specifications
(including any preliminary study or planning of the Project or any aspect thereof), (ii) the
cost of acquisition, construction, equipping and installation of the Project and all
construction, acquisition, equipping and installation expenses required to provide utility
services or other facilities and all real or personal properties deemed necessary in
connection with the Project (including development, architectural, engineering, and
20
supervisory services with respect to any of the foregoing), and (iii) any other costs and
expenses relating to the Project;
(b) payment of the purchase price of any component of the Project, including all
costs incident thereto, payment for labor, services, materials, and supplies used or furnished
in site improvement and in the construction of the Project, including all costs incident
thereto, payment for the cost of the construction, acquisition, installation, equipping of
utility services or other facilities, payment for all real and personal property deemed
necessary in connection with the Project, payment of consulting and development fees, and
payment for the miscellaneous expenses incidental to any of the foregoing items including
the premium on any surety bond;
(c) payment of the costs of issuing the Series 2010 Bonds;
(d) payment of expenses incurred in seeking to enforce any remedy against any
contractor or subcontractor or their surety in respect of any default under a contract relating
to the Project;
(e) payment of the fees or out -of- pocket expenses of the Consolidated
Government or the Authority, if any, relating to the Project, including, but not limited to,
architectural, engineering, and supervisory services with respect to the Project;
(f) payment of the fees, or out -of- pocket expenses, if any, of those providing
services with respect to the Project, including, but not limited to, architectural, engineering,
legal, accounting, and supervisory services;
(g) payment to the Consolidated Government or the Authority of such amounts,
if any, as shall be necessary to reimburse the Consolidated Government or the Authority in
full for all advances and payments made by either of them for any of the items set forth in
clauses (a) through (e) above;
(h) payment of any other costs and expenses (including administrative fees and
expenses of the Authority) relating to the Project permitted to be paid by the Authority
under the Act; and
(i) all proceeds of the Series 2010 Bonds remaining in the Construction Fund
after the Completion Date, less amounts retained or set aside to meet costs not then due and
payable or which are being contested, shall be deposited in the Sinking Fund.
Upon completion of the Project and after payment of all expenses with respect
thereto, all moneys credited to the Construction Fund shall be credited to the Sinking Fund and
used to pay debt service on the Series 2010 Bonds. Prior to such application, the Authority shall
receive an opinion of counsel of recognized expertise in matters pertaining to municipal bonds to
the effect that (a) such use does not violate the Act and (b) such use will not adversely affect the
exclusion from gross income for federal income tax purposes of the interest on the Series 2010
Bonds.
21
Section 503. Requisition Procedure.
(a) Except as specifically provided herein, all payments from the Construction
Fund shall be made by wire transfer or checks signed by the Construction Fund Custodian or an
Authorized Consolidated Government Representative upon receipt by the Construction Fund
Custodian of a requisition and certification in substantially the form of Exhibit C attached hereto
for such payment signed by an Authorized Consolidated Government Representative and an
Authorized Authority Representative. The Construction Fund Custodian shall retain a record of
all such requisitions.
(b) In the event the Construction Fund Custodian shall receive a written
direction from the Consolidated Government to transfer moneys in the Construction Fund to the
Sinking Fund, the Construction Fund Custodian is authorized to make such transfer without the
necessity of receiving any other requisition or certificate hereunder.
Section 504. Completion of the Project.
When the acquisition, construction and equipping of the Project has been
completed, said fact shall be evidenced by a certificate signed by an Authorized Consolidated
Government Representative as provided in Section 3.3 of the Contract. Should there be any
balance in the Construction Fund, such balance shall be applied as provided in Section 502.
Section 505. Transfer Upon Event of Default.
Upon the occurrence of an Event of Default, no further moneys shall be disbursed
from the Construction Fund, except that all moneys in the Construction Fund shall be transferred,
as soon as practicable, to the Sinking Fund.
22
ARTICLE VI
SINKING FUND
Section 601. Source of Payment of Series 2010 Bonds.
The Series 2010 Bonds, together with the interest thereon, and all payments
required of the Authority hereunder are not and shall never become general or moral obligations
of the Authority but are special, limited obligations payable solely and only from the payments
under the Contract collaterally assigned and pledged under the terms of the Contract and from
such other sources as authorized and provided in this Resolution.
The payments provided for pursuant to Section 4.2(a) of the Contract are to be
paid directly to the Sinking Fund for the account of the Authority. Payments under the Contract
are required to be sufficient in amount to pay the principal of, premium, if any, and interest on,
the Series 2010 Bonds, and the entire amount of revenues and receipts from said Contract are
pledged to the payment of the principal of, premium, if any, and interest on, the Series 2010
Bonds. The Authority hereby covenants and agrees that it will not create any lien or security
interest upon said revenues, except as set forth herein.
Section 602. Sinking Fund.
(a) There is hereby created a special trust fund to be designated as the "Solid
Waste Management Authority of Augusta Sinking Fund 2010" to be maintained by the Sinking
Fund Custodian. The Authority shall continue to maintain or cause to be maintained the Sinking
Fund separate and apart from its other funds so long as the Series 2010 Bonds remain
outstanding under this Resolution.
(b) There shall be deposited into the Sinking Fund, as and when received, the
payments specified in Section 4.2(a) of the Contract, and all other moneys received by the
Sinking Fund Custodian under and pursuant to any of the provisions of the Contract, if any,
when accompanied by written directions from the Authority or the Consolidated Government
that such moneys are to be paid into the Sinking Fund.
The Authority hereby covenants and agrees that, so long as any of the Series 2010
Bonds issued hereunder are Outstanding, it will deposit, or cause to be deposited, promptly into
the Sinking Fund sufficient sums from payments received pursuant to the Contract, if any, to
meet and pay the principal of, premium, if any, or interest on, the Series 2010 Bonds as and
when the same become due and payable. Nothing herein shall be construed as requiring the
Authority to use or to provide any funds or revenues from any source other than the sources
herein provided.
(c) Moneys in the Sinking Fund shall be used solely as a fund for
of the principal of, premium, any, and interest, on the Series 2010 Bonds, for redemption ton of
the Series 2010 Bonds at or prior to maturity, and to purchase Series 2010 Bonds in the open
market pursuant to Section 305 of this Resolution. Except as provided in Article III hereof or
any corresponding article in a resolution supplement hereto, no part of payments in the Sinking
Fund shall be used to redeem, prior to maturity, a part of the Series 2010 Bonds Outstanding;
23
provided, that whenever the amount in the Sinking Fund from any source whatsoever is
sufficient to redeem all of the Series 2010 Bonds Outstanding hereunder, to pay interest to accrue
thereon to such redemption date, and to pay all costs and expenses accrued and to accrue to such
redemption date, the Authority, at the direction of the Consolidated Government, covenants and
agrees to take, and cause to be taken, the necessary steps to redeem all of said Series 2010 Bonds
on the next succeeding redemption date for which the required redemption notice may be given;
and, provided further that any moneys in the Sinking Fund, other than payments received
pursuant to the Contract, may be used to redeem a part of the Series 2010 Bonds Outstanding on
the next succeeding redemption date for which the required notice of redemption may be given
or to purchase Series 2010 Bonds pursuant to Section 305 of this Resolution to the extent said
moneys are in excess of the amount required for payment of Series 2010 Bonds theretofore
matured or called for redemption and past due interest in all cases where such Series 2010 Bonds
have not been presented for payment.
Section 603. Repayment to the Consolidated Government from the Sinking
Fund.
Any amounts remaining in the Sinking Fund after payment in full of all Series
2010 Bonds (taking into consideration that sufficient monies or obligations such as are described
in Section 1001 hereof must be retained in the Sinking Fund to pay all principal of and interest
then due and payable with respect to each Series 2010 Bond not yet presented for payment and to
pay all principal and interest relating to each Series 2010 Bond which is not yet due and payable
but with respect to which the lien of this Resolution has been defeased upon compliance with
Article X hereof), and after payment of all of the fees, charges, and expenses of the Paying
Agent, Bond Registrar, Sinking Fund Custodian and Construction Fund Custodian which have
accrued and which will accrue and all other items required to be paid hereunder, if any, shall be
paid to the Consolidated Government upon the expiration or sooner termination of the term of
the Contract as provided in the Contract.
Section 604. Transfers from the Sinking Fund.
The Authority covenants and agrees that all transfers from the Sinking Fund, and
all payments from said fund into another fund, or to other sources shall be made by checks
signed by the Sinking Fund Custodian or by bank wire, as directed by the Authority or by the
Consolidated Government, as appropriate.
Section 605. Investments of Sinking Fund Moneys.
Moneys on deposit in the Sinking Fund shall be invested in Sinking Fund
Investments as directed by the Consolidated Government in writing or by telephone confirmed in
writing. Any such securities so purchased shall be held by the Sinking Fund Custodian in trust
until paid at maturity or sold, and all income therefrom shall be immediately deposited to the
credit of the fund from which the moneys to make such investment were derived. All
investments in the Sinking Fund shall mature not later than the date on which such moneys will
be needed to pay the principal of and interest on the Series 2010 Bonds.
24
Section 606. Lien on Funds.
Pursuant to Section 206 hereof, the Authority hereby pledges to owners of the
Series 2010 Bonds all the moneys and securities held in the Sinking Fund and the Construction
Fund. Said moneys and securities shall immediately be subject to the lien of this pledge without
any physical delivery thereof or further act, and the lien of this pledge shall be valid and binding
against the Authority, and against all parties having claims of any kind against the Authority,
whether such claims shall have arisen in contract, tort or otherwise and irrespective of whether or
not such parties have notice thereof.
25
ARTICLE VII
DEPOSITORIES OF MONEYS AND SECURITIES FOR
DEPOSIT; DESIGNATION OF AUTHENTICATING AGENT;
PAYING AGENT AND BOND REGISTRAR
Section 701. Depositories and Custodians.
(a) All moneys received by the Authority under the terms hereof shall, subject
to the giving of security as hereinafter provided, be deposited with the proper depository or with
the Sinking Fund Custodian in the name of the Authority and shall be deposited in banks insured
by the Federal Deposit Insurance Corporation, or any successor thereto. All moneys on deposit
in the funds created herein shall constitute trust funds to be applied in accordance with the terms
and for the purposes as set forth in this Resolution and shall not be subject to lien or attachment
by any creditor of the Authority or the Consolidated Government.
(b) No moneys belonging to any of the funds created hereunder shall be
deposited or remain on deposit with any depository or custodian in an amount in excess of the
amount guaranteed or insured by the Federal Deposit Insurance Corporation or other federal
agency, unless such institution shall have pledged for the benefit of the Authority and the
Bondholders as collateral security for the moneys deposited, direct obligations of or obligations
the principal and interest of which are unconditionally guaranteed by the United States of
America, or other marketable securities eligible as security for the deposit of trust funds under
regulations of the Board of Governors of the Federal Reserve System and having a market value
(exclusive of accrued interest) at least equal to the amount of such deposits.
(c) The Bank of New York Mellon Trust Company, N.A. is hereby designated
as Sinking Fund Custodian and as the Construction Fund Custodian. The Authority may, from
time to time, designate a successor custodian or depository of any of the funds created hereunder;
provided such custodian or depository complies with all of the provisions of this Article. In the
event any custodian or depository shall resign or fail to perform its duties hereunder, the
Authority shall appoint a new custodian or depository for such fund.
(d) In the event the Sinking Fund Custodian and the Paying Agent are the
same bank acting in both capacities, then the Sinking Fund Custodian shall, without any further
direction on the part of or any further authorization from the Authority, use, invest and disburse
the moneys in the Sinking Fund as required by this Resolution; except that, if, as provided under
Article III of this Resolution, it redeems or buys any Series 2010 Bonds with moneys in the
Sinking Fund, then proper authorization from the Authority and the Consolidated Government
shall be furnished for such use and disbursement. If the Sinking Fund Custodian and the Paying
Agent are not the same bank, the Sinking Fund Custodian shall transfer to the Paying Agent from
moneys held in the Sinking Fund, in immediately available funds, moneys in amounts and at or
before such times as shall be required to pay the principal of and interest on the Series 2010
Bonds as and when the same are payable.
26
Section 702. Administrative Fees and Expenses.
The Authority shall pay, or cause the Consolidated Government to pay, to the
custodians and depositories appointed in accordance with Section 701 of this Resolution, and to
their successors and assigns, and to the Paying Agent and Bond Registrar and to their respective
successors and assigns from time to time, as the same are due and payable their reasonable fees
and reasonable expenses for serving under this Resolution. The Authority's obligation to pay
such fees and expenses shall be limited to the moneys it receives pursuant to the Contract.
Section 703. Appointment of Paying Agent and Bond Registrar.
(a) The Bank of New York Mellon Trust Company, N.A. is hereby designated
as the Paying Agent and Bond Registrar. The Authority may, from time to time, designate a
successor Paying Agent or Bond Registrar. In the event the Paying Agent or the Bond Registrar
shall resign or fail to perform its duties hereunder, the Authority shall appoint a new Paying
Agent or Bond Registrar, as appropriate.
(b) Not less than four days prior to any Interest Payment Date, the Paying
Agent shall ascertain whether amounts sufficient to make the payment due on such Interest
Payment Date are on deposit in the Sinking Fund and, if so, shall make appropriate arrangements
with the Sinking Fund Custodian and the Consolidated Government for the transfer of such
sufficient amount to the Paying Agent in order to effect timely payment of the Series 2010 Bonds
on such Interest Payment Date in accordance with the terms hereof.
Section 704. Employment of Attorneys, Agents, Etc.
The Construction Fund Custodian, Sinking Fund Custodian and Paying Agent and
Bond Registrar may execute any of the powers hereof and perform any of their duties by or
through attorneys, agents, receivers or employees, but shall not be answerable for the conduct of
the same if appointed with due care, and shall be entitled to advice of counsel concerning their
duties hereunder, and may in all cases pay such reasonable compensation to all such attorneys,
agents, receivers and employees as may reasonably be employed in connection with the exercise
of powers hereunder. The Construction Fund Custodian, Sinking Fund Custodian, Paying Agent
and Bond Registrar may act upon the opinion or advice of any attorney (who may be the attorney
or attorneys for the Authority) selected by the Construction Fund Custodian, Sinking Fund
Custodian, Paying Agent, and Bond Registrar in the exercise of reasonable care. The
Construction Fund Custodian, Sinking Fund Custodian, Paying Agent, and Bond Registrar shall
not be responsible for any loss or damage resulting from any action or inaction taken or not
taken, as the case may be, in good faith in reliance upon such opinion or advice.
Section 705. Reliance on Documents.
The Construction Fund Custodian, Sinking Fund Custodian, Paying Agent, and
Bond Registrar shall be protected in acting upon any notice, request, consent, certificate, order,
affidavit, letter, telegram or other paper or document believed to be genuine and correct and to
have been signed or sent by the proper person or persons.
27
Section 706. Evidence of Facts.
As to the existence or nonexistence of any fact or as to the sufficiency or validity
of any instrument, paper or proceeding, the Construction Fund Custodian, Sinking Fund
Custodian, Paying Agent, and Bond Registrar shall be entitled to rely upon a certificate signed
by an Authorized Authority Representative or an Authorized Consolidated Government
Representative as sufficient evidence of the facts therein contained and prior to the occurrence of
an event of default, shall also be at liberty to accept a similar certificate to the effect that any
particular dealing, transaction or action is necessary or expedient, but may at its discretion secure
such further evidence deemed by it to be necessary or advisable, but shall in no case be bound to
secure the same.
Section 707. Release of Liability.
The Authority hereby releases the Construction Fund Custodian, Sinking Fund
Custodian, Paying Agent and Bond Registrar and covenants not to sue any of them for any loss
or damage suffered or caused directly or indirectly by the Construction Fund Custodian, Sinking
Fund Custodian, Paying Agent and Bond Registrar or their agents or employees and arising out
of or related to the performance of the duties of the Construction Fund Custodian, Sinking Fund
Custodian, Paying Agent and Bond Registrar under this Resolution or the Contract; provided,
however, that this release and covenant not to sue shall not cover acts of gross negligence or
willful misconduct.
28
ARTICLE VIII
PARTICULAR COVENANTS AND FINDINGS
Section 801. Payment of Series 2010 Bonds.
The Authority covenants that it will promptly pay the principal of and interest on
each and every Series 2010 Bond at the place, on the dates and in the manner herein, and in the
Series 2010 Bonds specified, and any premium required for the redemption of the Series 2010
Bonds, according to the true intent and meaning thereof. The principal of, interest on,
redemption premium (if any) are payable solely out of moneys in the Sinking Fund, which shall
be sufficient to make all payments required to be made.
Section 802. Management of Project.
Pursuant to the Contract, the Consolidated Government covenanted that it will
maintain the Project in an efficient and economical manner, that it will at all times maintain the
Project in good repair and in sound operating condition, that it will make all necessary repairs
and replacements to the Project, and that it will comply with all valid acts, rules, regulations,
orders and directions of any legislative, executive, administrative or judicial body applicable to
the Project and its operation thereof.
Section 803. Maintenance of Insurance.
Pursuant to the Contract, the Consolidated Government has agreed to maintain
insurance with respect to the Project as set forth therein.
Section 804. Books and Records.
The Authority covenants that it will keep the funds and accounts created
hereunder separate from all other funds and accounts of the Authority, or any of its departments,
and of the revenues collected from the Contract and the application thereof. Such records and
accounts shall be open to the inspection of all interested persons at reasonable times and upon
reasonable request.
Section 805. Prohibited Activities; Project Covenants.
(a) The Authority shall not use or knowingly permit the use of any proceeds
to the Series 2010 Bonds or any other funds of the Authority, directly or indirectly, to acquire
any securities or obligations, and shall not use or permit the use of any amounts received by the
Authority in any manner, and shall not take or permit to be taken any other action or actions, that
would cause any Series 2010 Bond to be an "arbitrage bond" within the meaning of Section 148
of the Code. If at any time the Authority is of the opinion that for purposes of this subsection (a)
it is necessary to restrict or limit the yield on or change in any way the investment of any moneys
held by the Construction Fund Custodian or other custodian of funds under this Resolution, the
Authority shall so instruct such custodian in writing, and the custodian shall take such action as
may be necessary in accordance with such instructions.
29
(b) The Authority shall not use or permit the use of any proceeds of Series
2010 Bonds or any other funds of the Authority, directly or indirectly, in any manner, and shall
not take or permit to be taken any other action or actions, which would result in any of the Series
2010 Bonds being treated as a "private activity bond," as defined in Section 141 of the Code.
(c) Reference is made to the tax compliance and non - arbitrage certificate by
the Authority delivered concurrently with the issuance of the Series 2010 Bonds; the
representations and covenants made therein are hereby incorporated by reference as if contained
herein and shall constitute part of this Resolution.
Section 806. No Diminishment of Lien Granted.
So long as any of the Series 2010 Bonds shall be outstanding, the Authority shall
not hereafter create, or cause to be created, any debt, lien, pledge, assignment, encumbrance or
other charge having priority to or being on a parity with the lien hereof and of the Series 2010
Bonds upon any revenues which are derived by the Authority from the Contract.
Section 807. Maintenance of Existence.
The Authority will undertake reasonable efforts to maintain its existence or assure
the assumption of its obligations hereunder and under the Contract by any corporation or
political subdivision succeeding to its powers under the Act.
Section 808. Authority will not Cancel Contract.
The Authority agrees that so long as any of the Series 2010 Bonds shall be
Outstanding, it will not consent or agree to any change, amendment, modification or termination
of the Contract except as provided in Sections 1103 and 1104 hereof; that it will promptly,
faithfully and satisfactorily perform all of the agreements and obligations made and undertaken
by it pursuant to the Contract required to enforce Section 4.2 of the Contract; and that it will
enforce Section 4.2 of the Contract in accordance with its terms.
30
ARTICLE IX
EVENTS OF DEFAULTS; REMEDIES
Se ction 901. Events of Default.
An "Event of Default" shall mean the occurrence of any one or more of the
following events:
(a) payment of any installment of principal on the Series 2010 Bonds, either
at maturity or by proceedings for redemption or otherwise, shall not be made when the
same shall become due and payable;
(b) payment of any installment of interest on the Series 2010 Bonds shall not
be made when the same become due and payable;
(c) an order or decree shall be entered, with the consent or acquiescence of the
Authority, appointing a receiver, or receivers, of the Authority, or any proceedings shall
be instituted, with the consent or acquiescence of the Authority, for the purpose of
effecting a composition between the Authority and its creditors, pursuant to any federal
or state statute now or hereafter enacted, or if such order or decree, having been entered
without the consent and acquiescence of the Authority, shall not be vacated or discharged
or stayed on appeal within 60 days after entry thereof, or if such proceeding, having been
instituted without the consent or acquiescence of the Authority, shall not be withdrawn,
or any orders entered shall not be vacated, discharged or stayed on appeal within 60 days
after the institution of such proceedings, or the entry of such orders;
(d) the Authority shall fail to duly and punctually perform any other of the
covenants, conditions, agreements or provisions contained in the Series 2010 Bonds or in
this Resolution, on the part of the Authority to be performed, and such failure shall
continue for a period of 30 days after written notice, specifying such failure and requiring
same to be remedied, shall have been given to the Authority by any Bondholder; or
(e) the Authority shall, for any reason, be rendered incapable of fulfilling its
obligations hereunder; or
(f) an Event of Default shall occur under the Contract.
Section 902. Reserved.
Section 903. Remedies.
Upon the happening and continuance of any Event of Default, then and in every
such case any Bondholder may proceed, subject to the provisions of Section 905, to protect and
enforce the rights of the Bondholders hereunder by a suit, action or special proceeding in equity
or at law for the specific performance of any covenant or agreement contained herein or in the
Contract or in aid or execution of any power herein granted, or for the enforcement of any proper
31
legal or equitable remedy as the Bondholders shall deem most effectual to protect and enforce
the rights aforesaid, insofar as such may be authorized by law.
Section 904. Abandonment of Proceedings.
In case any proceeding taken by any Bondholder on account of any Event of
Default shall have been discontinued or abandoned for any reason, or shall have been determined
adversely to such Bondholder, then and in every such case the Authority and the Bondholders
shall be restored to their former positions and rights hereunder, respectively, and all rights,
remedies, power and duties of the Bondholders shall continue as though no such proceedings had
been taken.
Section 905. Limitation of Actions by Bondholders; Equal Benefit.
No one or more owners of the Series 2010 Bonds shall have any right in any
manner whatever by his or their action to affect, disturb or prejudice the security granted and
provided for herein, or to enforce any right hereunder, except in the manner herein provided. All
proceedings at law or in equity shall be instituted for the equal benefit of all owners of
outstanding Series 2010 Bonds.
Section 906. Non - Exclusivity of Remedies.
No remedy herein conferred upon the Bondholders is intended to be exclusive of
any other remedy, or remedies, and each and every such remedy shall be cumulative, and shall
be in addition to every other remedy given hereunder or now or hereafter existing at law or in
equity, or by statute.
Section 907. Delays.
No delay or omission of any Bondholder to exercise any right or power accruing
upon any Event of Default occurring and continuing, as aforesaid, shall impair any Event of
Default or be construed as an acquiescence therein and every power and remedy given by this
Article to the Bondholders may be exercised from time to time and as often as may be deemed
expedient.
32
ARTICLE X
DEFEASANCE
Section 1001. Payment and Defeasance.
If (a) the Authority shall pay or cause to be paid to the Bondholders the principal
of and the interest to become due on the Series 2010 Bonds at the times and in the manner
stipulated therein and herein, (b) all fees, charges and expenses of the Paying Agent, Bond
Registrar, depositories and custodians shall have been paid or provision for such payment has
been made, and (c) the Authority shall keep, perform and observe all of its agreements in the
Series 2010 Bonds and herein expressed as to be kept, performed and observed by it or on its
part, then these presents and the rights hereby granted shall cease, determine and be discharged;
provided, however, that no such discharge shall affect the Authority's obligations under Sections
805 hereof.
The Series 2010 Bonds shall be deemed to be paid within the meaning of this
Resolution if (a)(i) sufficient moneys shall have been irrevocably deposited with the Paying
Agent to pay the same when they become due or (ii) there shall have been irrevocably deposited
with the Paying Agent moneys or Government Obligations, which, without any reinvestment
thereof or of the interest thereon, will produce moneys sufficient to pay the same when they
become due (whether upon or prior to the stated maturity of the Series 2010 Bonds), (b) a report
of an independent firm of nationally recognized certified public accountants or such other
accountant ( "Accountant ") verifying the sufficiency of the escrow established to pay the Series
2010 Bonds in full on the maturity or redemption date ( "Verification ") shall be delivered to the
Authority, (c) the Authority shall execute an escrow deposit agreement if the escrow period
exceeds 90 days, and (d) an opinion of nationally recognized bond counsel shall be delivered to
the Authority and the Consolidated Government to the effect that the Series 2010 Bonds are no
longer "Outstanding" under this Resolution. Each Verification and defeasance opinion shall be
acceptable in form and substance, and addressed, to the Authority and the Consolidated
Government. Any such deposit is subject to Sections 805 hereof. In the event the Authority
shall have made a deposit of moneys or Government Obligations, the Authority shall retain the
right to substitute Government Obligations for those previously pledged provided that such
Government Obligations will provide sufficient moneys in a timely fashion (without any
reinvestment as described above) to make the required payments of principal and interest on the
Series 2010 Bonds, and the Authority shall receive at the time of such substitution an opinion of
a firm of recognized bond attorneys to the effect that such substitution will not adversely affect
the status of interest on the Series 2010 Bonds as being excludable from gross income for federal
income tax purposes under the Code. The Authority, at the direction of the Consolidated
Government, may defease all of the Series 2010 Bonds or any portion of the Series 2010 Bonds
as it may elect.
Section 1002. Termination of Liability.
If the Authority shall determine that it is desirable to terminate the rights and liens
hereunder of the Bondholders (pursuant to a refunding or otherwise) and shall cause the Series
2010 Bonds to be deemed to be paid within the meaning of Section 1001 hereof, then the Series
33
2010 Bonds shall thereafter have no right or lien under this Resolution other than the right to
receive payment from said special fund and the same shall not be considered to be Outstanding
hereunder for any purpose.
34
ARTICLE XI
SUPPLEMENTAL RESOLUTIONS AND
AMENDMENT OF CONTRACT
Section 1101. Supplemental Resolutions Not Requiring Consent of
Bondholders.
The Authority may, without the consent of, or notice to, any of the Bondholders,
adopt a resolution or resolutions supplemental to this Resolution for any one or more of the
following purposes:
(a) to cure any ambiguity or formal defect or omission in this Resolution;
(b) to grant to or confer for the benefit of the Bondholders any additional
rights, remedies, powers, or authorities that may lawfully be granted to or conferred upon
the Bondholders;
(c) to subject to the lien and pledge of this Resolution additional rents,
revenues, receipts, properties, or collateral;
(d) to comply with the requirements of the Trust Indenture Act of 1939, as
from time to time amended, or any similar federal statute hereafter in effect, in either case
lawfully made applicable to this Resolution;
(e) to add, delete or revise provisions required in connection with the issuance
of bond insurance or any other credit facility with respect to the Series 2010 Bonds;
(f) to make the Series 2010 Bonds eligible for acceptance by The Depository
Trust Company or any similar holding institution or to permit issuance of the Series 2010
Bonds or interests therein in book -entry form;
(g) to obtain, maintain or upgrade a rating on the Series 2010 Bonds; or
(h) in connection with any other changes hereto that in the opinion of counsel
are not materially adverse to the interests of the Bondholders.
Section 1102. Supplemental Resolutions Requiring Consent of
Bondholders.
Exclusive of supplemental resolutions covered by Section 1101 hereof and subject
to the terms and provisions contained in this Section, and not otherwise, the holders of not less
than a majority in principal amount of the Series 2010 Bonds then outstanding shall have the
right, from time to time, anything contained in this Resolution to the contrary notwithstanding, to
consent to and approve the adoption by the Authority of such other resolution or resolutions
supplemental hereto as shall be deemed necessary or desirable by the Authority for the purpose
of modifying, altering, amending, adding to, or rescinding, in any particular, any of the terms or
35
provisions contained in this Resolution or in any supplemental resolution; provided, however,
that nothing in this Section shall permit, or be construed as permitting:
(i) an extension of the maturity date or due date of any mandatory sinking
fund redemption on which the principal of or the interest on any Series 2010 Bond is, or
is to become, due and payable,
(ii) a reduction in the principal amount of any Series 2010 Bond or Series
2010 Bonds or the rate of interest thereon,
(iii) a privilege or priority of any Series 2010 Bond or Series 2010 Bonds over
any other Series 2010 Bond or Series 2010 Bonds,
(iv) a reduction in the principal amount of the Series 2010 Bonds required for
consent to any supplemental resolution,
(v) an alteration of the date fixed in any of the Series 2010 Bonds for the
payment of the principal of or interest on any Series 2010 Bond or other modification of
the terms of payment of the principal at maturity of or interest on any Series 2010 Bond
or imposition of any conditions with respect to such payment or adversely affecting the
right of the owner of any Series 2010 Bond, which is absolute and unconditional, to
institute suit for the enforcement of any such payment as provided herein,
(vi) any action affecting the rights of the owners of less than all of the Series
2010 Bonds then outstanding, or
(vii) the creation of any lien or charge on any of the Pledged Revenues prior to
or superior to the lien or charge created on the Pledged Revenues as security for the
payment of the Series 2010 Bonds.
If the Authority shall desire to adopt any such supplemental resolution for any of
the purposes of this Section, it shall cause notice of the proposed adoption of such supplemental
resolution to be given in writing by registered or certified mail postage prepaid to the registered
owners of all Outstanding Series 2010 Bonds. Such notice shall briefly set forth the nature of the
proposed supplemental resolution and shall state that copies thereof are on file at the principal
office of the Authority for inspection by all Bondholders. If, within sixty (60) days, or such
longer period as shall be prescribed by the Authority, following the mailing of such notice, the
holders of not less than a majority in principal amount of the Series 2010 Bonds shall have
consented to and approved the adoption of such supplemental resolution as herein provided, no
holder of any Series 2010 Bond shall have the right to object to any of the terms and provisions
contained therein, or the operation thereof, or in any manner to question the propriety of the
execution thereof, or to enjoin or restrain the Authority from adopting the same or from taking
any action pursuant to the provisions thereof. Upon the adoption of any such supplemental
resolution as in this Section permitted and provided, this Resolution shall be modified and
amended in accordance therewith.
Anything herein to the contrary notwithstanding, a supplemental resolution under
this Article XI which affects any right of the Consolidated Government under the Contract shall
36
not become effective unless and until the Consolidated Government shall have consented to the
execution and delivery of such supplemental resolution. In this regard, the Authority shall cause
notice of the proposed execution and delivery of any such supplemental resolution together with
a copy of the proposed supplemental resolution to be delivered to the Consolidated Government
at least fifteen (15) days prior to the proposed date of adoption of any such supplemental
resolution.
Section 1103. Amendments, etc., to Contract Not Requiring Consent of
Bondholders.
The Authority and the Consolidated Government shall without the consent of, or
notice to, the bondholders consent to any amendment, change or modification of the Contract (a
"Contract amendment ") as may be required (i) by the provisions of the Contract or this
Resolution, (ii) for the purpose of curing any ambiguity or formal defect or omission in the
Contract or (iii) in connection with any other change therein which, in the judgment of the
Consolidated Government and the Authority, is not contrary to or inconsistent with the Contract
and is not to the prejudice of the bondholders.
Section 1104. Amendments, etc., to Contract Requiring Consent of
Bondholders.
Except for the amendments, changes or modifications as provided in Section 1103
hereof, neither the Authority nor the Consolidated Government shall consent to any other
amendment, change or modification of the Contract without the mailing of notice and the written
approval or consent of the holders of not less than a majority in principal amount of the Series
2010 Bonds then Outstanding given and procured as provided in Section 1102 hereof; provided,
however, that nothing contained in this Article shall permit, or be construed as permitting, any
amendment, change or modification of the Consolidated Government's unconditional obligations
to make payments under the Contract or the Consolidated Government's covenants with respect
to the use of the proceeds of the Series 2010 Bonds. If the Authority or the Consolidated
Government, as the case may be, shall request the consent of the bondholders to any such
proposed amendment, change or modification of the Contract, the Bond Registrar shall, upon
being satisfactorily indemnified with respect to expenses, cause notice of such proposed
amendment, change or modification to be mailed in the manner as provided by Section 1102
hereof with respect to proposed supplemental resolutions. Such notice shall briefly set forth the
nature of such proposed amendment, change or modification and shall state that copies of the
instrument embodying the same are on file at the principal office of the Bond Registrar for
inspection by bondholders.
Section 1105. Legal Action.
(a) Any action or proceeding in any court objecting to such supplemental
resolution or Contract amendment or to any of the terms and provisions therein contained or the
operation thereof, or in any manner questioning the propriety of the adoption thereof or the
execution by any bondholder of any instrument purporting to approve the adoption of such
supplemental resolution or Contract amendment, or to enjoin or restrain the Authority from
taking any action pursuant to the provisions thereof, must be commenced within 30 days after the
37
Authority shall have determined that the adoption of such supplemental resolution or Contract
amendment has been duly approved.
(b) Upon the expiration of such 30 -day period, or, if any such action or
proceedings shall be commenced, upon any judgment or decree sustaining such supplemental
resolution or Contract amendment becoming final, this Resolution, any supplemental resolutions,
the Contract and any Contract amendment shall be, and be deemed to be, modified and amended
in accordance with such supplemental resolution or Contract amendment, and the respective
rights, duties and obligations under this Resolution and any supplemental resolution and the
Contract and any Contract amendment and all owners of outstanding Series 2010 Bonds shall
thereafter be determined, exercised and enforced hereunder, subject, in all respects, to such
modifications and amendments.
Section 1106. Incorporation.
Any supplemental resolution adopted and becoming effective in accordance with
the provisions of this Article shall thereafter form a part of this Resolution and all conditions of
this Resolution for any and all purposes, and shall be effective as to all owners of Series 2010
Bonds then outstanding and no notation or legend of such modifications and amendments shall
be required to be made thereon.
38
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 1201. Validation.
The Series 2010 Bonds shall be validated in the manner provided in the Revenue
Bond Law, and to that end notice of the adoption of this Resolution and a certified copy thereof
shall be immediately served on the District Attorney of the Augusta Judicial Circuit in order that
proceedings for the confirmation and validation of the Series 2010 Bonds by the Superior Court
of Richmond County may be instituted by said District Attorney.
Section 1202. Severability.
In case any one or more of the provisions of this Resolution, or the Series 2010
Bonds, shall for any reason be held to be illegal or invalid, such illegality or invalidity shall not
affect any other provision of this Resolution, or the Series 2010 Bonds, but this Resolution and
the Series 2010 Bonds shall be construed and enforced as if such illegal or invalid provisions had
not been contained therein.
Section 1203. Resolution as a Contract.
The provisions of this Resolution shall constitute a contract by and between the
Authority and the Bondholders, and after the issuance of the Series 2010 Bonds this Resolution
shall not be repealed, revoked, supplemented rescinded or amended in any respect which will
adversely affect the rights and interest of the owners of the Series 2010 Bonds, nor shall the
Authority pass any proceedings in any way adversely affecting the rights of such owners or
issuers, so long as any of the Series 2010 Bonds authorized by this Resolution, or the interest
thereon, shall remain unpaid. This covenant shall not be construed as prohibiting modifications
hereof or amendments hereto to the extent and in the manner as provided in Article XI hereof.
Section 1204. Payments Due on Saturdays, Sundays and Holidays.
In any case where the date of payment of the principal of or interest on the Series
2010 Bonds shall be in the Authority of payment a Saturday, Sunday or a legal holiday or a day
on which banking institutions are authorized by law to close, then payment of such principal or
interest need not be made on such date but may be made on the next succeeding business day
with the same force and effect as if made on the date of stated maturity, and no interest shall
accrue for the period after such date.
Section 1205. Resolution Constitutes Trust Indenture.
This Resolution has been duly authorized, executed and delivered by the
Authority and is not subject to qualification under the Trust Indenture Act of 1939, as amended.
39
Section 1206. Applicable Provisions of Law.
This Resolution shall be governed by and construed and enforced in accordance
with the laws of the State of Georgia.
Section 1207. Repeal of Conflicting Resolutions.
Any and all resolutions, or parts of resolutions, if any, in conflict with this
Resolution are hereby repealed, and this Resolution shall be in full force and effect from and
after its adoption.
Section 1208. Authorization of Contract.
The execution, delivery and performance of the Contract, a copy of which is
attached hereto as Exhibit B, are hereby authorized. The Contract shall be executed by the
Chairperson or the Vice Chairperson of the Authority and attested by the Secretary or Assistant
Secretary of the Authority, and the seal of the Authority shall be impressed thereon. The
Contract shall be in substantially the form attached hereto, with such changes, insertions or
omissions as may be approved by the Chairperson or Vice Chairperson of the Authority, and the
execution and delivery by the Authority of the Contract as hereby authorized shall be conclusive
evidence of the approval of any such changes, omissions or insertions.
Section 1209. Waiver of Bond Audit.
The Authority hereby approves the publication of the requisite legal notice
waiving the performance audit and performance review requirements of Section 36 -82 -100 of the
Official Code of Georgia Annotated.
Section 1210. Approval and Authentication of Offering Documents;
Winning Bidder.
The preparation, use and distribution of the Official Notice of Sale and the
Preliminary Official Statement presented at this meeting are hereby ratified and approved. The
execution, use and distribution of the Official Statement are authorized and approved, provided
that the Official Statement shall be in substantially the same form as the Preliminary Official
Statement presented at this meeting. The Authority hereby deems the Preliminary Official
Statement final, except for "Permitted Omissions," as of its date for purposes of Rule 15c2 -12
promulgated under the Securities Exchange Act of 1934, as amended (the "Rule "). As used
herein, "Permitted Omissions" shall mean the offering price(s), interest rate(s), selling
compensation, aggregate principal amount, principal amount per maturity, delivery dates,
ratings, the identity of the underwriter or bond insurer and other terms of the Series 2010 Bonds
and any underlying obligations depending on such matters, all with respect to the Series 2010
Bonds and any underlying obligations. The execution and delivery of the 15c2 -12 Certificate
required by the Rule are hereby ratified and approved. The execution, delivery and performance
of the Series 2010 Disclosure Certificate summarized in the Preliminary Official Statement are
hereby authorized and approved.
40
BB &T Capital Markets, a division of Scott & Stringfellow Inc., is hereby
approved as the winning bidder for the Series 2010 Bonds upon the terms set forth in its bid.
Section 1211. No Individual Responsibility of Members and Officers of
Authority.
No stipulations, obligations or agreements of any member or of any officer of the
Authority shall be deemed to be stipulations, obligations or agreements of any such member or
officer in his or her individual capacity.
Section 1212. General Authority.
The Authority, at the direction of and in consultation with the Consolidated
Government, shall execute and deliver a tax compliance and non - arbitrage certificate and all
other documents and certificates necessary to effectuate the transactions contemplated by this
Resolution. All actions heretofore taken and all documents heretofore executed in connection
with the issuance of the Series 2010 Bonds are hereby ratified and approved. It is hereby ratified
and approved that the Chairperson and any other proper officers, members, agents and
employees of the Authority hereby are 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 this Resolution and further are authorized to take any and all further actions and
execute and deliver any and all other certificates, papers and documents as may be necessary or
desirable to effect the actions contemplated by this Resolution. Such other certificates, papers
and documents shall be in such form and contain such terms and conditions as may be necessary
or desirable to effect the actions contemplated by this Resolution. Such other certificates, papers
and documents shall be in such form and contain such terms and conditions as may be approved
by the Chairperson or Vice Chairperson or the Authority, and the execution of such other
certificates, papers and documents by the Chairperson or Vice Chairperson of the Authority as
herein authorized shall be conclusive evidence of any such approval. The Secretary or any
Assistant Secretary of the Authority is hereby authorized to attest the signature of the
Chairperson or Vice Chairperson of the Authority and impress, imprint or otherwise affix the
seal of the Authority on any of the certificates, papers and documents executed in connection
with this Resolution, but shall not be obligated to do so, and the absence of the signature of the
Secretary or Assistant Secretary or the Authority' s seal on any such other certificates, papers and
documents shall not affect the validity or enforceability of the Authority's obligations
thereunder.
Section 1213. Consents of Bondholders.
(a) Any request, demand, authorization, direction, notice, consent, waiver, or
other action provided by this Resolution to be given or taken by Bondholders may be embodied
in and evidenced by one or more instruments of substantially similar tenor signed by such
Bondholders in person or by their agents duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Authority, and, where it is expressly required, to the Authority
and the Consolidated Government. Proof of execution of any such instrument or of a writing
41
appointing any such agent shall be sufficient for any purpose of this Resolution and conclusive if
made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by the certificate of any
notary public or other officer authorized by law to take acknowledgments of deeds, certifying
that the individual signing such instrument or writing acknowledged to him the execution
thereof. Where such execution is by an officer of a corporation or a member of a partnership, on
behalf of such corporation or partnership, such certificate or affidavit shall also constitute proof
of his authority.
(c) The fact and date of execution of any such instrument or writing may also
be proved in any other manner which the Authority deems sufficient, and the Authority or the
Paying Agent, as the case may be, may in any instance require further proof with respect to any
of the matters referred to in this Section.
(d) The ownership of Series 2010 Bonds shall be proved by the registration
books kept by the Bond Registrar.
(e) Any request, demand, authorization, direction, notice, consent, waiver, or
other action by any Bondholder shall bind every future holder of the same Series 2010 Bond in
respect of anything done or suffered to be done by any Paying Agent, Bond Registrar or the
Authority in reliance thereon, whether or not notation of such action is made upon such Series
2010 Bond.
Section 1214. Limitation of Rights.
With the exception of rights herein expressly conferred, nothing expressed or
mentioned in or to be implied from this Resolution or the Series 2010 Bonds is intended or shall
be construed to give to any person or company other than the Authority and the holders of the
Series 2010 Bonds, any legal or equitable right, remedy or claim under or in respect of this
Resolution or any covenants, contracts, conditions, and provisions herein contained; this
Resolution and all of the covenants, contracts, conditions and provisions hereof being intended to
be and being for the sole exclusive benefit of the Consolidated Government and the holders of
the Series 2010 Bonds as herein provided.
Section 1215. Notices.
All notices, certificates, and other communications provided for hereunder shall be in
writing and sent (a) by telecopy if the sender on the same day sends a confirming copy of such
notice by a recognized overnight delivery service (charges prepaid), or (b) by registered or
certified mail with return receipt requested (postage prepaid), or (c) by a recognized overnight
delivery service (with charges prepaid). Any such notice must be sent to any party hereto at the
following addresses or to such other address as any party hereto shall have specified in writing to
the other party:
42
If to the Authority:
Solid Waste Management Authority of Augusta
Attn: Chairperson
Municipal Building
530 Greene Street
Augusta, GA 30911
With a copy to the Consolidated Government.
If to the Consolidated Government:
Augusta, Georgia
Attn: Administrator
530 Greene Street, Room 801
Augusta, GA 30901
If to the Paying Agent:
The Bank of New York Mellon Trust Company, N.A.
Attn: Corporate Trust
Suite 425
900 Ashwood Parkway
Atlanta, GA 30338
A duplicate copy of each notice, certificate or other communication given
hereunder by either the Authority, the Consolidated Government, or the Paying Agent to any one
of the others shall also be given to all of the others.
Section 1216. Acknowledgment of Acceptance of Contract.
The Authority accepts the terms of the Contract and agrees that it will effectively
carry out the purpose and intention of the Contract and has accepted the Contract for and on
behalf of itself and for and on behalf of all Bondholders.
Section 1217. Requirements and Conditions Met.
The Authority agrees that all the terms, conditions, requirements of all acts and
things required to be done, both under the Constitution of the State of Georgia and the Act, have
been done as required, and the Authority agrees to take any and all necessary steps to comply
with each and every requirement and condition referred to herein.
43
Adopted and approved this 7th day of December, 2010.
SOLID WASTE MANAGEMENT AUTHORITY
OF AUGUSTA
(SEAL)
By:
Vice Chairperson
Attest:
ecretary
44
EXHIBIT A
(FORM OF THE BOND)
No. R- $
STATE OF GEORGIA
SOLID WASTE MANAGEMENT AUTHORITY OF AUGUSTA
REVENUE BONDS
SERIES 2010
BOND DATE INTEREST RATE MATURITY DATE CUSIP
, 2010 % October 1,
FOR VALUE RECEIVED, Solid Waste Management Authority of Augusta, a public
body corporate and politic duly created and validly existing under the Constitution and the laws
of the State of Georgia (the "Authority "), hereby promises to pay solely from the special fund
provided therefor, as hereinafter set forth, to Cede & Co., as nominee of The Depository Trust
Company, or registered assigns, the principal sum of
DOLLARS
in lawful money of the United States of America, on the date specified above, unless redeemed
prior thereto as hereinafter provided, upon presentation and surrender hereof at the principal
corporate trust office of The Bank of New York Trust Company, N.A., Atlanta, Georgia, Paying
Agent and Bond Registrar, and to pay to the registered owner hereof solely from the special fund
interest on the principal amount from the Interest Payment Date (hereinafter defined) next
preceding the date of authentication of this bond to which interest has been paid, unless the date
of authentication hereof is an Interest Payment Date to which interest has been paid, then from
the date hereof, or unless no interest has been paid hereon, then from , 2010;
provided, however, that if the date of authentication of this bond is after a Record Date
(hereinafter defined) and prior to the next succeeding Interest Payment Date, then interest hereon
shall be paid from such Interest Payment Date, at the rate per annum specified above, on April 1,
2011 and semiannually thereafter on the 1st days of April and October in each year (each an
"Interest Payment Date "), until payment of the principal amount hereof. Payments of interest on
this bond shall be made by check or draft payable to the registered owner as shown on the bond
registration book of the Authority kept by the Bond Registrar at the close of business on the
fifteenth day of the calendar month next preceding each Interest Payment Date (a "Record Date ")
and such interest payments shall be mailed to such registered owner at the address shown on the
bond registration book. Notwithstanding the foregoing, so long as this bond is registered in the
name of the Securities Depository or the Securities Depository Nominee, payment of principal
and interest on this certificate shall be made by wire transfer to the Securities Depository.
A -1
This bond is one of a duly authorized issue in the aggregate principal amount of
$9,165,000 of like tenor, except as to numbers, denominations, interest rates and dates of
maturity (the "Series 2010 Bonds "), issued for the purpose of (a) improving the solid waste
facility, including improvements to and replacement of components of the gas collection and
control system of Augusta, Georgia's (the "Consolidated Government ") solid waste facility (the
"Project ") and (b) paying the costs of issuing the Series 2010 Bonds. The Series 2010 Bonds are
issued under the authority of the Constitution and laws of the State of Georgia and pursuant to a
resolution of the Authority adopted on December 7, 2010 (the "Resolution "). Reference to the
Resolution is hereby made for a complete description of the fund charged with, and pledged to,
the payment of the principal of and the interest on the Series 2010 Bonds, the nature and extent
of the security therefor, a statement of rights, duties and obligations of the Authority, and the
rights of the owners of the Series 2010 Bonds, to all the provisions of which the owner hereof, by
the acceptance of this bond, assents.
This bond shall not be valid or become obligatory for any purpose or be entitled to any
security or benefit under the Resolution until this bond shall have been authenticated and
registered upon the bond registration book of the Authority kept for that purpose by the Bond
Registrar, which authentication and registration shall be evidenced by the execution by the
manual signature of a duly authorized signatory of the Bond Registrar of the certificate hereon.
The Series 2010 Bonds are being issued by means of a Book -Entry System, with actual
Series 2010 Bonds immobilized at The Depository Trust Company, New York, New York, or its
successor as Securities Depository, evidencing ownership of the Series 2010 Bonds in principal
amounts of $5,000 or integral multiples thereof, and with transfers of Beneficial Ownership
effected on the records of the Securities Depository and its participants pursuant to the rules and
procedures established by the Securities Depository. Actual Series 2010 Bonds are not available
for distribution to the Beneficial Owners, except under the limited circumstances set forth in the
Resolution. The principal and interest on the Series 2010 Bonds are payable by the Paying
Agent to Cede & Co., as nominee of the Securities Depository. Transfer of principal and interest
payments to participants of the Securities Depository is the responsibility of the Securities
Depository; transfers of principal and interest to Beneficial Owners by participants of the
Securities Depository will be the responsibility of such participants and other nominees of
Beneficial Owners. The Authority and the Paying Agent are not responsible or liable for
maintaining, supervising or reviewing the records maintained by the Securities Depository, its
participants or persons acting through such participants. If the Series 2010 Bonds are no longer
registered to a Securities Depository or its nominee, this bond may be registered as transferred
only upon the registration books kept for that purpose at the principal corporate trust office of the
Bond Registrar by the registered owner hereof in person, or by his or her attorney duly
authorized in writing, upon presentation and surrender to the Bond Registrar of this bond duly
endorsed for registration of transfer or accompanied by an assignment duly executed by the
registered owner or his or her attorney duly authorized in writing, and thereupon a new registered
bond, in the same aggregate principal amount and of the same maturity shall be issued to the
transferee in exchange therefor. In addition, if the Series 2010 Bonds are no longer registered to
a Securities Depository, this bond may be exchanged by the registered owner hereof or his or her
duly authorized attorney upon presentation at the principal corporate trust office of the Bond
Registrar for an equal aggregate principal amount of Series 2010 Bonds of the same maturity and
A -2
in any authorized denominations in the manner, subject to the conditions and upon payment of
charges, if any, provided in the Resolution.
The Authority and the Consolidated Government have entered into an Intergovernmental
Contract, dated as of December 7, 2010 (the "Contract ") with respect to the Project. Pursuant to
the Contract, the Consolidated Government has agreed to pay the Authority amounts sufficient to
pay the principal of, premium, if any, and interest on the Series 2010 Bonds. Such payments
made by the Consolidated Government have been pledged to the payment of the Series 2010
Bonds and will be deposited by the Authority into a sinking fund for that purpose. In order to
secure its obligations to make payments under the Contract, the Consolidated Government has
granted a lien on the proceeds of the levy an ad valorem property tax, within the millage
limitation prescribed by law, on all property in the Consolidated Government subject to taxation
for such purposes in order to make such payments under the Contract.
The principal of and interest on the Series 2010 Bonds are payable solely from the
moneys payable to the Authority under the Contract. The Series 2010 Bonds will not constitute
a general obligation of the State of Georgia, the Consolidated Government, or any political
subdivision of the State of Georgia within the meaning of any constitutional or statutory
limitation upon indebtedness. No owner of the Series 2010 Bonds shall ever have the right to
compel the exercise of the taxing power of the State of Georgia, the Consolidated Government or
any political subdivision of the State of Georgia to pay the same or the interest thereon.
To the extent permitted by the Resolution, modifications or alterations of the Resolution
and the Contract may be made by the Authority. As provided in the Resolution, certain
modifications may only be made with the consent of the owners of at least a majority in
aggregate principal amount of the Series 2010 Bonds then outstanding.
The Series 2010 Bonds maturing on October 1, 2021 and thereafter are subject to
redemption prior to maturity, at the option of the Authority, on or after April 1, 2021, in whole or
in part at any time (in any order of maturity and by lot within a maturity), at a redemption price
equal to the principal amount of the Series 2010 Bonds to be redeemed, plus accrued interest to
the redemption date.
The Series 2010 Bonds maturing on October 1, 2030 are subject to mandatory sinking
fund redemption prior to their maturity at a redemption price equal to 100% of the principal
amount thereof being redeemed, plus accrued interest, on October 1 of the following years and in
the following amounts (the October 1, 2030 amount to be paid rather than redeemed):
Year
2026
2027
2028
2029
Amount
$550,000
575,000
605,000
630,000
2030 660,000
A -3
At its option, to be exercised on or before the 45th day next preceding such scheduled
maturity redemption date, the Authority, may (a) receive a credit with respect to its scheduled
mandatory redemption obligation for any Series 2010 Bonds subject to scheduled mandatory
redemption which are delivered to the Paying Agent for cancellation and not theretofore applied
as a credit against a scheduled mandatory redemption obligation or (b) receive a credit with
respect to its scheduled mandatory redemption obligation for any Series 2010 Bonds which prior
to said date have been redeemed (otherwise than through scheduled mandatory redemption) and
canceled by the Paying Agent and not theretofore applied as a credit against said scheduled
mandatory redemption obligation. Each Series 2010 Bond so delivered or previously redeemed
shall be credited by the Paying Agent, at the principal amount thereof to the obligation of the
Authority on such scheduled mandatory redemption date and the principal amount of the Series
2010 Bonds to be redeemed by operation of such scheduled mandatory redemption on such date
shall be accordingly reduced.
Not more than 60 days and not less than 30 days before any date upon which any such
redemption is to be made a notice of redemption designating the Series 2010 Bonds to be
redeemed shall be mailed, postage prepaid, to all registered owners of the Series 2010 Bonds to
be redeemed at addresses which appear upon the bond registration book as of the date of giving
such notice. It is expressly provided, however, that the failure to receive any such notice or any
defect therein shall not affect the validity of the proceedings for such redemption or cause the
interest to continue to accrue on the principal amount of the Series 2010 Bonds so designated for
redemption.
This bond is issued with the intent that the laws of the State of Georgia shall govern its
construction. In case of default, the owner of this bond shall be entitled to the remedies provided
by the Resolution and the Revenue Bond Law and any amendments thereto.
It is hereby recited and certified that all acts, conditions and things required to be done
precedent to and in the issuance of this bond have been done, have happened and have been
performed in due and legal form as required by law, and that provision has been made for the
allocation from the Consolidated Government' s payments under the Contract of amounts
sufficient to pay the principal of and the interest on all of the Series 2010 Bonds as same mature
and that such payments are irrevocably allocated and pledged to the payment thereof and the
interest thereon.
A -4
IN WITNESS WHEREOF, the Solid Waste Management Authority of Augusta has
caused this bond to be executed by the manual signature of its Chairperson and its official seal to
be impressed hereon and attested by the manual signature of its Secretary.
SOLID WASTE MANAGEMENT
AUTHORITY OF AUGUSTA
(SEAL)
By:
Chairperson
Attest:
Secretary
A -5
CERTIFICATE OF AUTHENTICATION AND REGISTRATION
This bond is one of the Series 2010 Bonds described above.
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.
as Bond Registrar
By:
Authorized Officer
A -6
VALIDATION CERTIFICATE
STATE OF GEORGIA )
)
COUNTY OF RICHMOND )
The undersigned Clerk of the Superior Court of Richmond County, State of Georgia,
HEREBY CERTIFIES that this bond was validated and confirmed by judgment of the Superior
Court of Richmond County, Georgia, Civil Action File Number , on the
day of December, 2010, and that no intervention or objection was filed in the
proceedings validating same and that no appeal from said judgment of validation has been taken.
WITNESS, my signature and seal of the Superior Court of Richmond County, Georgia.
Clerk, Superior Court, Richmond County, Georgia
(SEAL)
A -7
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
the within bond and all rights thereunder and
hereby irrevocably constitutes and appoints
attorney to transfer this bond on the bond registration book kept for such purpose by the Bond
Registrar, with full power of substitution in the premises.
Dated
NOTE: The signature to this assignment must
correspond with the name as it appears upon the
face of the within bond in every particular, without
alteration or enlargement or any change whatever.
Signature Guaranteed:
Signature(s) must be guaranteed by
an institution which is a participant
in the Securities Transfer Agent
Medallion Program ( "STAMP ") or
similar program.
(END OF BOND FORM)
II
A -8
Exhibit B
SOLID WASTE MANAGEMENT AUTHORITY OF AUGUSTA
and
AUGUSTA, GEORGIA
INTERGOVERNMENTAL CONTRACT
Dated as of December 7, 2010
The rights and interest of the Solid Waste Authority of Augusta in this Intergovernmental
Contract and the revenues and receipts derived therefrom, have been assigned and pledged under
a Bond Resolution of the Solid Waste Authority of Augusta adopted on December 7, 2010.
INTERGOVERNMENTAL CONTRACT
TABLE OF CONTENTS
(This Table of Contents is not a part of the Intergovernmental Contract and is only for
convenience of reference.)
ARTICLE I. DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION 3
Section 1.1. Definitions. 3
Section 1.2. Construction of Certain Terms 5
Section 1.3. Table of Contents; Titles and Headings 5
Section 1.4. Contents of Certificates or Opinions 6
ARTICLE II. REPRESENTATIONS 7
Section 2.1. Representations of Authority 7
Section 2.2. Representations of the Consolidated Government. 9
Section 2.3. Reliance by Bondholders 12
ARTICLE III. ISSUANCE OF THE SERIES 2010 BONDS; ACQUISITION,
CONSTRUCTION, AND EQUIPPING OF THE PROJECT 13
Section 3.1. Agreement to Issue the Series 2010 Bonds; Application of Bond
Proceeds 13
Section 3.2. Agreement to Acquire, Construct and Equip the Project. 13
Section 3.3. Establishment of Completion Date 14
Section 3.4. In Event Construction Fund Insufficient. 14
Section 3.5. Title to the Project. 15
Section 3.6. Application of Moneys in the Construction Fund. 15
Section 3.7. Disbursements from the Construction Fund 16
Section 3.8. Authorized Consolidated Government and Authority
Representatives 16
ARTICLE IV. EFFECTIVE DATE OF THIS CONTRACT; DURATION OF TERM;
CONTRACT PAYMENT PROVISIONS 17
Section 4.1. Effective Date of this Contract; Duration of Term 17
Section 4.2. Contract Payments and Additional Payments. 17
Section 4.3. Obligations of the Consolidated Government Hereunder
Unconditional. 18
Section 4.4. Security for Contract Payments 19
Section 4.5. Security for Series 2010 Bonds. 21
ARTICLE V. DAMAGE, DESTRUCTION AND CONDEMNATION; USE OF NET
PROCEEDS 22
Section 5.1. Damage, Destruction and Condemnation 22
Section 5.2. Application of Net Proceeds 22
Section 5.3. Cooperation of the Authority. 22
ARTICLE VI. SPECIAL COVENANTS 23
Section 6.1. No Warranty of Condition or Suitability by Authority. 23
Section 6.2. Access to the Project. 23
Section 6.3. Further Assurances and Corrective Instruments. 23
Section 6.4. Authority and Consolidated Government Representatives. 23
Section 6.5. Provisions Respecting Insurance. 23
Section 6.6. Investment of Funds and Accounts. 23
Section 6.7. Special Investment Covenants 24
Section 6.8. Calculation and Payment of Rebate Amount. 24
Section 6.9. Consolidated Government's Obligations in the Bond Resolution. 24
Section 6.10. Operation and Maintenance of the Project; Modification of Project. 25
Section 6.11. Books and Records 25
Section 6.12. Release and Indemnification Covenants. 25
Section 6.13. Continuing Disclosure. 26
Section 6.14. Tax Status of Series 2010 Bonds 26
ARTICLE VII. ASSIGNMENT; PREPAYMENTS 27
Section 7.1. No Assignment by Consolidated Government. 27
Section 7.2. Redemption of Series 2010 Bonds. 27
Section 7.3. Prepayment of Amounts Due Hereunder. 27
Section 7.4. Option to Prepay Amounts Due Hereunder and Redeem the Series
2010 Bonds 27
ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES 29
Section 8.1. Events of Default Defined. 29
Section 8.2. Remedies on Default. 30
Section 8.3. No Remedy Exclusive. 30
Section 8.4. Agreement to Pay Fees and Expenses. 30
Section 8.5. No Additional Waiver Implied by One Waiver. 31
ARTICLE IX. MISCELLANEOUS 32
Section 9.1. Notices 32
Section 9.2. Binding Effect. 32
Section 9.3. Severability 32
Section 9.4. Amounts Remaining in Funds. 33
Section 9.5. Amendments, Changes and Modifications; Assignment. 33
Section 9.6. Execution in Counterparts. 33
Section 9.7. Applicable Law. 33
ii
THIS INTERGOVERNMENTAL CONTRACT is dated as of December 7, 2010,
between SOLID WASTE MANAGEMENT AUTHORITY OF AUGUSTA (the "Authority "), a
public body corporate and politic and AUGUSTA, GEORGIA (the "Consolidated
Government "), a political subdivision of the State of Georgia.
WITNESSETH:
WHEREAS, the Solid Waste Management Authority of Augusta (the "Authority ") has
heretofore been created pursuant to the Regional Solid Waste Management Authorities Act
(O.C.G.A. Section 12 -8 -50 et seq.), as amended (the "Act "), and the Authority is now existing
and operating and its members have been duly appointed and entered into their duties; and
WHEREAS, the Authority was created for the general purpose of collecting, transporting,
managing and disposal of solid waste in Augusta, Georgia; and
WHEREAS, pursuant to the authority granted in the Act, the Authority is empowered to
(a) acquire, construct, improve or modify and to cause to be placed into operation and operated a
project (as defined in the Act) within the Consolidated Government and (b) pay all or part of the
cost of any project from proceeds of revenue bonds of the Authority; and
WHEREAS, the Consolidated Government is a political subdivision of the State of
Georgia, legally created and validly existing under the laws of the State of Georgia; and
WHEREAS, pursuant to the Constitution and the laws of the State of Georgia, including
the Revenue Bond Law, the Consolidated Government has the power to provide for the
collection, treatment, reuse or disposal of solid waste; and
WHEREAS, Article IX, Section III, Paragraph I (a) of the Constitution of the State of
Georgia of 1983 provides that any ". . . county, municipality, school district or other political
subdivision of the state may contract for any period not exceeding 50 years with each other or
with any other public agency, public corporation, or public authority for joint services, for the
provision of services, or for the joint or separate use of facilities or equipment; but such contracts
must deal with activities, services and facilities which the contracting parties are authorized by
law to undertake or provide ... "; and
WHEREAS, the Authority, after its own independent study and investigation, has
determined that improvements to the Consolidated Government's municipal solid waste facility
(the "Solid Waste Facility "), including improving and equipping the gas collection and control
system (the "Project ") will further the public purposes for which the Authority was created; and
WHEREAS, to finance the overall undertaking now contemplated, the Authority and the
Consolidated Government have determined that it is in the best interest of the Authority and the
Consolidated Government for the Authority to issue its revenue bonds, designated as "Solid
Waste Management Authority of Augusta Revenue Bonds, Series 2010," in an aggregate
principal amount of $9,165,000 (the "Series 2010 Bonds ") for the purpose of financing the
Project and paying costs of issuance associated therewith; and
WHEREAS, the Series 2010 Bonds will be issued pursuant to the Act and a resolution of
the Authority adopted on December 7, 2010 (the "Bond Resolution "); and
WHEREAS, the Authority and the Consolidated Government have determined that the
Project should be constructed in accordance with, or substantially in accordance with, the
description of the project attached as Appendix D to the Bond Resolution, which by this
reference hereby incorporated herein and made a part hereof; and
WHEREAS, the Authority and the Consolidated Government propose to enter into this
Intergovernmental Contract pursuant to which the Authority will agree, among other things, to
issue the Series 2010 Bonds to finance costs of the Project; and in consideration therefor, the
Consolidated Government will agree, among other things, to cause the acquisition, construction
and equipping of the Project and to make payments to the Authority for such services and in such
amounts sufficient to enable the Authority to pay, when due, the principal of, redemption
premium, if any, and interest on the Series 2010 Bonds and other amounts due under the Bond
Resolution and pledge its full faith and credit and taxing power to the extent necessary to make
the payments required by this Intergovernmental Contract.
NOW, THEREFORE, for and in consideration of the premises, the mutual covenants
hereinafter contained and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Authority and the Consolidated Government agree as
follows:
2
ARTICLE I.
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions.
All capitalized, undefined terms used in this Contract shall have meanings ascribed to
them in the Resolution. The following words and phrases shall have the following meanings:
"Additional Contract" means a contract or supplemental agreement entered into after the
date hereof binding the Consolidated Government pursuant to Article IX, Section III, Paragraph I
of the Constitution of the State of Georgia of 1983, pursuant to the terms of which a payment
obligation is created or expanded from the Consolidated Government to the other party to such
contract.
"Authorized Authority Representative" means the person at the time designated to act on
behalf of the Authority by written certificate furnished to the Consolidated Government and the
Construction Fund Custodian, containing the specimen signature of such person and signed on
behalf of the Authority by its Chairperson or Vice Chairperson. Such certificate or any
subsequent or supplemental certificate so executed may designate an alternate or alternates.
"Authorized Consolidated Government Representative" means the person at the time
designated to act on behalf of the Consolidated Government by written certificate furnished to
the Authority and the Construction Fund Custodian, containing the specimen signature of such
person and signed on behalf of the Consolidated Government by its Mayor or Mayor Pro
Tempore.
"Bond Resolution" means the resolution of the Authority adopted on December 7, 2010,
pursuant to which the Series 2010 Bonds are authorized to be issued, including any resolution
supplemental thereto.
"Coliseum Bonds" means the revenue bonds designated "Augusta- Richmond County
Coliseum Authority Revenue Bonds (Coliseum and TEE Center Project), Series 2010 ", which
are secured by payments under the Sale Agreement and the Service Agreement.
"Contract Payments" means the payments due pursuant to Section 4.2(a) of this Contract
in an amount equal to the principal of, premium, if any, and interest on the Series 2010 Bonds.
"Constitutional Amendment" means an amendment to Article VII, Section I, Paragraph II
of the Constitution of the State of Georgia of 1945 (1980 Ga. Laws 2177 to 2180, inclusive),
now specifically continued as a part of the Constitution of the State of Georgia of 1983 pursuant
to an Act of the General Assembly of the State of Georgia (1983 Ga. Laws 3870 to 3872,
inclusive).
"Completion Date" means the date the Project is complete as evidenced by the certificate
required by Section 3.3 hereof.
3
"Default" and "Event of Default" mean with respect to any Default or Event of Default
under this Contract any occurrence or event specified and defined by Section 8.1 hereof.
"Fiscal Year" means any period of twelve consecutive months adopted by the
Consolidated Government as its fiscal year for financial reporting purposes and shall initially
mean the period beginning on January 1 of each calendar year and ending on December 31 of the
same calendar year.
"Governing Body" means, in the case of the Authority, its members and, in the case of
the Consolidated Government, the Augusta- Richmond County Commission.
"Net Proceeds," when used with respect to any condemnation award or insurance
proceeds from policies required by Section 6.5 hereof, means the amount remaining after
deducting all expenses (including attorneys' fees) incurred in the collection of such proceeds
from the gross proceeds thereof.
"Official Statement" means the Official Statement, dated December 7, 2010, pursuant to
which the Series 2010 Bonds were offered for sale.
"Prior Contracts" means, collectively, the Intergovernmental Contract, dated as of
September 1, 2004, between the Authority and the Consolidated Government, the
Intergovernmental Contract, dated as of June 1, 2010, between the Urban Redevelopment
Agency of Augusta and the Consolidated Government, the Service Agreement and the Sale
Agreement, as the same may be supplemented and amended from time to time in accordance
with the provisions thereof.
"Purchaser" means BB &T Capital Markets, a division of Scott & Stringfellow, Inc., the
purchaser of the Series 2010 Bonds.
"Rebate Amount" means the rebatable arbitrage in connection with the Series 2010
Bonds that is payable to the United States Treasury pursuant to Section 148(0 of the Code and
any Regulations proposed or promulgated in connection therewith.
"Rebate Calculator" means any recognized bond counsel, recognized firm of certified
public accountants, or other firm reasonably acceptable to the Authority, which is expert in
making the calculations required by Section 148(0 of the Code, appointed by the Consolidated
Government pursuant to Section 6.8 hereof to make the calculations required by Section 148(0
of the Code and any Regulations proposed or promulgated in connection therewith.
"Regulations" means the Treasury Regulations promulgated under and pursuant to the
Code.
"Sale Agreement" means the Agreement of Sale, dated as of August 1, 2010, between the
Augusta - Richmond County Coliseum Authority and the Consolidated Government, as the same
may be supplemented and amended from time to time in accordance with the terms thereof.
4
"Series 2010 Disclosure Certificate" means the Continuing Disclosure Certificate, dated
the date of issuance of the Series 2010 Bonds, of the Consolidated Government, as originally
executed and as it may be amended from time to time in accordance with the terms thereof.
"Service Agreement" means the Intergovernmental Service Agreement, dated as of
August 1, 2010, by and between the Consolidated Government and the Augusta - Richmond
County Coliseum Authority, as the same may be supplemented and amended from time to time
in accordance with the provisions thereof.
"State" means the State of Georgia.
"Term" means the duration of this Contract as specified in Section 4.1 hereof.
"Unassigned Rights" means all of the rights of the Authority to receive reimbursements
and payments pursuant to Sections 6.12 and 8.4 hereof, and to be held harmless and indemnified
pursuant to Section 6.12 hereof.
Section 1.2. Construction of Certain Terms. For all purposes of this Contract,
except as otherwise expressly provided or unless the context otherwise requires, the following
rules of construction shall apply:
(1) The use of the masculine, feminine, or neuter gender is for convenience
only and shall be deemed and construed to include correlative words of the masculine,
feminine, or neuter gender, as appropriate.
(2) "This Contract" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more agreements of sale
supplemental hereto entered into pursuant to the applicable provisions hereof.
(3) All references in this instrument to designated "Articles," "Sections," and
other subdivisions are to the designated Articles, Sections, and other subdivisions of this
instrument. The words "herein," "hereof," and "hereunder" and other words of similar
import refer to this Contract as a whole and not to any particular Article, Section, or other
subdivision.
(4) The terms defined in this Article shall have the meaning assigned to them
in this Article and include the plural as well as the singular.
(5) All accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles as
promulgated by the American Institute of Certified Public Accountants, on and as of the
date of this instrument.
Section 1.3. Table of Contents; Titles and Headings. The table of contents, the titles
of the articles, and the headings of the sections of this Contract are solely for convenience of
reference, are not a part of this Contract, and shall not be deemed to affect the meaning,
construction, or effect of any of its provisions.
5
Section 1.4. Contents of Certificates or Opinions. Every certificate or opinion with
respect to the compliance with a condition or covenant provided for in this Contract shall
include: (i) a statement that the person or persons making or giving such certificate or opinion
have read such covenant or condition and the definitions herein relating thereto, (ii) a brief
statement as to the nature and scope of the examination or investigation upon which the
statements or opinions contained in such certificate or opinion are based, (iii) a statement that, in
the opinion of the signers, they have made or caused to be made such examination or
investigation as is necessary to enable them to express an informed opinion as to whether or not
such covenant or condition has been complied with, and (iv) a statement as to whether, in the
opinion of the signers, such condition or covenant has been complied with.
Any such certificate or opinion made or given by an official of the Authority or the
Consolidated Government may be based, insofar as it relates to legal or accounting matters, upon
a certificate or an opinion of counsel or an accountant, which certificate or opinion has been
given only after due inquiry of the relevant facts and circumstances, unless such official knows
that the certificate or opinion with respect to the matters upon which his certificate or opinion
may be based as aforesaid is erroneous or in the exercise of reasonable care should have known
that the same was erroneous. Any such certificate or opinion made or given by counsel or an
accountant may be based (insofar as it relates to factual matters with respect to information that
is in the possession of an official of the Authority or the Consolidated Government or any third
party) upon the certificate or opinion of or representations by an official of the Authority or the
Consolidated Government or any third party on whom counsel or an accountant could reasonably
rely unless such counsel or such accountant knows that the certificate or opinion or
representations with respect to the matters upon which his certificate or opinion may be based as
aforesaid are erroneous or in the exercise of reasonable care should have known that the same
were erroneous. The same official of the Authority or the Consolidated Government, or the
same counsel or accountant, as the case may be, need not certify or opine to all of the matters
required to be certified or opined under any provision of this Contract, but different officials,
counsel, or accountants may certify or opine to different matters, respectively.
6
ARTICLE II.
REPRESENTATIONS
Section 2.1. Representations of Authority.
The Authority represents as follows:
(a) Creation and Authority. The Authority is a public corporation duly created and
validly existing under the laws of the State, including the provisions of the Act. The Authority
has all requisite power and authority under the Act and the laws of the State (1) to issue the
Series 2010 Bonds to finance the costs of acquiring, constructing, and installing the Project, (2)
to adopt the Bond Resolution, and (3) to enter into, perform its obligations under, and exercise its
rights under this Contract and the Bond Resolution. The Bond Resolution has been adopted and
has not been modified or repealed. The Act authorizes the Authority to issue revenue bonds of
the Authority for the purpose of paying all or any part of the cost of any one or more "projects,"
which includes the acquisition, construction and equipping of any property, real or personal, used
as or in connection with a facility for the composting, extraction, collection, storage, treatment,
processing, utilization or final disposal of resources contained in solid waste, including the
conversion of solid waste or resources contained therein into compost, gas or any other product
or energy source and the collection, storage, treatment, utilization, processing or final disposal of
solid waste in connection with the foregoing. The Authority is authorized and empowered
under and pursuant to the provisions of the Revenue Bond Law to issue revenue bonds to
finance, in whole or in part, the cost of the acquisition, construction, reconstruction,
improvement, betterment, or extension of any "undertaking," which includes systems, plants,
works, instrumentalities and properties used or useful in connection with the collection,
treatment, reuse or disposal of solid waste. The Act also authorizes the Authority (1) to make
contracts, and to execute all instruments necessary or convenient, with any all political
subdivisions, departments, instrumentalities, or agencies of the State or of local government,
including contracts or other undertakings relative to the furnishing of project activities and
facilities or either of them by the Authority to municipal corporations and counties and by such
municipal corporations and counties for a term not exceeding 50 years, and (2) to pledge all or
any part of its revenues, income or charges derived from any project as security for repayment of
its revenue bonds. The Authority has found that the Project constitutes a "project" within the
meaning of that term as defined in the Act, has found that the Project constitutes an
"undertaking" within the meaning of that term as defined in the Revenue Bond Law, and has
found that the Project is for the lawful and valid public purposes set forth in the Act.
(b) Pending Litigation. There are no actions, suits, proceedings, inquiries, or
investigations pending or, to the knowledge of the Authority, after making due inquiry with
respect thereto, threatened against or affecting the Authority in any court or by or before any
governmental authority or arbitration board or tribunal, which involve the possibility of
materially and adversely affecting the transactions contemplated by this Contract or which, in
any way, would adversely affect the validity or enforceability of the Series 2010 Bonds, the
Bond Resolution, the Contract, 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
7
hereby or thereby, nor is the Authority aware of any facts or circumstances presently existing
that would form the basis for any such actions, suits, or proceedings.
(c) Agreements Are Legal and Authorized. The execution and delivery by the
Authority of the Contract, the Series 2010 Bonds, and the Bond Resolution and the compliance
by the Authority with all of the provisions of each thereof (i) are within the purposes, powers,
and authority of the Authority, (ii) have been done in full compliance with the provisions of the
Act and have been approved by the Authority and are legal and will not conflict with or
constitute on the part of the Authority a violation of or a breach of or a default under any organic
document, indenture, mortgage, security deed, pledge, note, lease, loan, or installment sale
agreement, contract, or other agreement or instrument to which the Authority is a party or by
which the Authority or its properties are otherwise subject or bound, or any license, judgment,
decree, law, statute, order, writ, injunction, demand, rule, or regulation of any court or
governmental agency or body having jurisdiction over the Authority or any of its activities or
properties, and (iii) have been duly authorized by all necessary action on the part of the
Authority.
(d) Governmental Consents. Neither the nature of the Authority nor any of its
activities or properties, nor any relationship between the Authority and any other Person, nor any
circumstance in connection with the offer, issue, sale, or delivery of the Series 2010 Bonds is
such as to require the consent, approval, permission, order, license, or authorization of, or the
filing, registration, or qualification with, any governmental authority on the part of the Authority
in connection with the execution, delivery, and performance of the Contract and the Bond
Resolution or the consummation of any transaction therein contemplated, or the offer, issue, sale,
or delivery of the Series 2010 Bonds, except as shall have been obtained or made and as are in
full force and effect.
(e) No Defaults. To the knowledge of the Authority, after making due inquiry with
respect thereto, no event has occurred and no condition exists that would constitute an event of
default under the Bond Resolution or that, with the lapse of time or with the giving of notice or
both, would become such an event of default. To the knowledge of the Authority, after making
due inquiry with respect thereto, the Authority is not in default or violation in any material
respect under the Act or under any organic document or other agreement or instrument to which
it is a party or by which it may be bound.
(f) No Prior Pledge. Neither this Contract nor any of the payments or amounts to be
received by the Authority hereunder have been or will be assigned, pledged, or hypothecated in
any manner or for any purpose or have been or will be the subject of a grant of a security interest
by the Authority other than as provided in the Bond Resolution.
(g) Compliance with Conditions Precedent to the Issuance of the Series 2010 Bonds.
All acts, conditions, and things required to exist, happen, and be performed precedent to and in
the execution and delivery by the Authority of the Series 2010 Bonds do exist, have happened,
and have been performed in due time, form, and manner as required by law; the issuance of the
Series 2010 Bonds, together with all other obligations of the Authority, do not exceed or violate
any constitutional or statutory limitation, and the revenues, funds, property, and amounts pledged
8
to the payment of the principal of, premium, if any, and interest on the Series 2010 Bonds, as the
same become due, have been calculated to be sufficient in amount for that purpose.
(h) Authority's Tax Certificate. The representations and warranties of the Authority
set forth in the Authority's Tax Certificate, dated the date of issuance and delivery of the Series
2010 Bonds, are hereby incorporated herein and made a part hereof by this reference thereto, as
if fully set forth herein, and are true and correct as of the date hereof.
THE AUTHORITY MAKES NO REPRESENTATION OR WARRANTY WITH
RESPECT TO THE PROJECT, EXCEPT AS SET FORTH ABOVE. THE AUTHORITY
MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE CONDITION
OR WORKMANSHIP OF ANY PART OF THE PROJECT OR ITS SUITABILITY FOR THE
CONSOLIDATED GOVERNMENT'S PURPOSES OR THE EXTENT TO WHICH
PROCEEDS OF THE SERIES 2010 BONDS WILL PAY THE COSTS INCURRED IN
CONNECTION THEREWITH.
The Authority makes no representation as to the financial position or business condition
of the Consolidated Government and does not represent or warrant as to any of the statements,
materials (financial or otherwise), representations or certifications furnished or to be made and
furnished by the Consolidated Government in connection with the sale of the Series 2010 Bonds,
or as to the correctness, completeness or accuracy of such statements.
Section 2.2. Representations of the Consolidated Government.
The Consolidated Government represents as follows:
(a) Creation and Authority. The Consolidated Government is a political subdivision
duly created and validly existing under the laws of the State including the charter of the
Consolidated Government (Ga. Laws 1995, p. 3648, et. seq.), as amended (the "Charter ").
Under the Charter, the State Constitution, the Act and the other laws of the State, the
Consolidated Government has all requisite power and authority under the laws of the State to
enter into, perform its obligations under, and exercise its rights under this Contract. The
Consolidated Government is authorized by Article IX, Section III, Paragraph I(a) of the
Constitution of the State of Georgia of 1983, to contract for any period not exceeding fifty years
with the Authority for joint services, for the provision of services, or for the joint or separate use
of facilities or equipment but such contracts must deal with activities, services, or facilities which
the contracting parties are authorized by law to undertake or provide.
(b) Pending Litigation. There are no actions, suits, proceedings, inquiries, or
investigations pending or, to the knowledge of the Consolidated Government, after making due
inquiry with respect thereto, threatened against or affecting the Consolidated Government in any
court or by or before any governmental authority or arbitration board or tribunal, which involve
the possibility of materially and adversely affecting the properties, activities, prospects, profits,
operations, or condition (financial or otherwise) of the Consolidated Government, or the ability
of the Consolidated Government to perform its obligations under this Contract, or the
transactions contemplated by this Contract or which, in any way, would adversely affect the
validity or enforceability of this Contract or any agreement or instrument to which the
9
Consolidated Government is a party and which is used or contemplated for use in the
consummation of the transactions contemplated hereby or thereby, nor is the Consolidated
Government aware of any facts or circumstances presently existing that would form the basis for
any such actions, suits, or proceedings. The Consolidated Government is not in default with
respect to any judgment, order, writ, injunction, decree, demand, rule, or regulation of any court,
governmental authority, or arbitration board or tribunal.
(c) Agreement Is Legal and Authorized. The execution and delivery by the
Consolidated Government of this Contract, the consummation of the transactions herein
contemplated, and the fulfillment of or the compliance with all of the provisions hereof (i) are
within the power, legal right, and authority of the Consolidated Government, (ii) are legal and
will not conflict with or constitute on the part of the Consolidated Government a violation of or a
breach of or a default under, any organic document, indenture, mortgage, security deed, pledge,
note, lease, loan, or installment sale agreement, contract, or other agreement or instrument to
which the Consolidated Government is a party or by which the Consolidated Government or its
properties are otherwise subject or bound, or any license, law, statute, rule, regulation, judgment,
order, writ, injunction, decree, or demand of any court or governmental agency or body having
jurisdiction over the Consolidated Government or any of its activities or properties, and (iii) have
been duly authorized by all necessary and appropriate official action on the part of the Governing
Body of the Consolidated Government. This Contract is the valid, legal, binding, and
enforceable obligation of the Consolidated Government. The officials of the Consolidated
Government executing this Contract are duly and properly in office and are fully authorized and
empowered to execute the same for and on behalf of the Consolidated Government.
(d) Governmental Consents. Neither the Consolidated Government nor any of its
activities or properties, nor any relationship between the Consolidated Government and any other
Person, nor any circumstances in connection with the execution, delivery, and performance by
the Consolidated Government of its obligations under this Contract or the offer, issue, sale, or
delivery by the Authority of the Series 2010 Bonds, is such as to require the consent, approval,
permission, order, license, or authorization of, or the filing, registration, or qualification with,
any governmental authority on the part of the Consolidated Government in connection with the
execution, delivery, and performance of this Contract or the consummation of any transaction
herein contemplated, or the offer, issue, sale, or delivery of the Series 2010 Bonds, except as
shall have been obtained or made and as are in full force and effect and except as are not
presently obtainable. To the knowledge of the Consolidated Government, after making due
inquiry with respect thereto, the Consolidated Government will be able to obtain all such
additional consents, approvals, permissions, orders, licenses, or authorizations of governmental
authorities as may be required on or prior to the date the Consolidated Government is legally
required to obtain the same.
(e) No Defaults. No event has occurred and no condition exists that would constitute
an Event of Default or that, with the lapse of time or with the giving of notice or both, would
become an Event of Default. To the knowledge of the Consolidated Government, after making
due inquiry with respect thereto, the Consolidated Government is not in default or violation in
any material respect under any organic document or other agreement or instrument to which it is
a party or by which it may be bound.
10
(f) Compliance with Law. To the knowledge of the Consolidated Government, after
making due inquiry with respect thereto, the Consolidated Government is not in violation of any
laws, ordinances, or governmental rules or regulations to which it or its properties are subject
and has not failed to obtain any licenses, permits, franchises, or other governmental
authorizations (which are presently obtainable) necessary to the ownership of its properties or to
the conduct of its affairs, which violation or failure to obtain might materially and adversely
affect the properties, activities, prospects, profits, and condition (financial or otherwise) of the
Consolidated Government, and there have been no citations, notices, or orders of noncompliance
issued to the Consolidated Government under any such law, ordinance, rule, or regulation.
(g) Restrictions on the Consolidated Government. The Consolidated Government is
not a party to or bound by any contract, instrument, or agreement, or subject to any other
restriction, that materially and adversely affects its activities, properties, assets, operations, or
condition (financial or otherwise). The Consolidated Government is not a party to any contract
or agreement that restricts the right or ability of the Consolidated Government from entering into
this Contract and performing its obligations hereunder.
(h) Disclosure. The representations of the Consolidated Government contained in
this Contract and any certificate, document, written statement, or other instrument furnished by
or on behalf of the Consolidated Government to the Authority or the Purchaser of the Series
2010 Bonds in connection with the transactions contemplated hereby, do not contain any untrue
statement of a material fact and do not omit to state a material fact necessary to make the
statements contained herein or therein not misleading. There is no fact that the Consolidated
Government has not disclosed to the Authority or the Purchaser of the Series 2010 Bonds in
writing that materially and adversely affects or in the future may (so far as the Consolidated
Government can now reasonably foresee) materially and adversely affect the acquisition,
construction, and installation of the Project by the Consolidated Government, the properties,
activities, prospects, operations, profits, or condition (financial or otherwise) of the Consolidated
Government, or the ability of the Consolidated Government to perform its obligations under this
Contract or any of the documents or transactions contemplated hereby or thereby or any other
transactions contemplated by this Contract, which has not been set forth in the Official Statement
relating to the Series 2010 Bonds or in the certificates, documents, and instruments furnished to
the Purchaser of the Series 2010 Bonds by or on behalf of the Consolidated Government prior to
the date of execution of this Contract in connection with the transactions contemplated hereby.
(i) Consolidated Government's Tax Certificate. The representations and warranties
of the Consolidated Government set forth in the Consolidated Government's Tax Certificate,
dated the date of issuance and delivery of the Series 2010 Bonds, are hereby incorporated herein
and made a part hereof by this reference thereto, as if fully set forth herein, and are true and
correct as of the date hereof.
(j) Financial Statements. The balance sheet of the Consolidated Government as of
December 31, 2009, and the statement of revenues, expenditures, and changes in fund balance
and the statement of cash flow for the year ended December 31, 2009 (copies of which, audited
by Cherry, Bekaert & Holland, L.L.P., independent certified public accountants, are included in
the Official Statement relating to the Series 2010 Bonds) present fairly the financial position of
the Consolidated Government as of December 31, 2009, and the results of its operations and its
11
cash flows for the year ended December 31, 2009, with such exceptions as may be disclosed in
the audit report. Since December 31, 2009, there has been no material adverse change in the
financial position or results of operations or cash flows of the Consolidated Government.
(k) Other Contracts. The Consolidated Government represents that there is not
presently in force and effect any other contract or agreement which obligates the Consolidated
Government to levy an annual ad valorem tax on all taxable property located within the
territorial limits of the Consolidated Government, as now existent and as the same may hereafter
be extended, at such rate or rates, within the mill limit prescribed by the Constitutional
Amendment, to provide revenues to fulfill the Consolidated Government's obligations under
such contract or agreement, except for the Prior Contracts and the Contract.
(1) Project Compliance. Except as otherwise disclosed in the Official Statement, the
Solid Waste Facility complies and, after completion of the Project, will comply with all presently
applicable building and zoning, health, environmental, and safety ordinances and laws and all
other applicable laws, rules, and regulations of any and all governmental and quasi - governmental
authorities having jurisdiction over any portion of the Project.
(m) Requirements of Service Agreement. This Contract constitutes an Additional
Contract and the Consolidated Government meets the requirements of Section 3.02(e) of the
Service Agreement and the Sale Agreement permitting the Consolidated Government to enter
into Additional Contracts.
Section 2.3. Reliance by Bondholders.
The Authority and the Consolidated Government acknowledge and agree that the
representations and warranties made by the Authority and the Consolidated Government in this
Contract are made for the benefit of the Bondholders and may be relied upon by the
Bondholders.
12
ARTICLE III.
ISSUANCE OF THE SERIES 2010 BONDS; ACQUISITION,
CONSTRUCTION, AND EQUIPPING OF THE PROJECT
Section 3.1. Agreement to Issue the Series 2010 Bonds; Application of Bond
Proceeds.
The Authority is expected to adopt the Bond Resolution authorizing the issuance of the
Series 2010 Bonds and agrees that it will proceed with the issuance thereof. The proceeds from
the sale of the Series 2010 Bonds shall be applied as provided in the Bond Resolution, and the
Consolidated Government, through the execution of this Contract, hereby approves the issuance
of the Series 2010 Bonds. The Authority shall provide the Consolidated Government a certified
copy of the Bond Resolution, which resolution in the proposed form to be approved by the
Authority is hereby approved and incorporated by reference.
Section 3.2. Agreement to Acquire, Construct and Equip the Project.
(a) The Authority will cause the Project to be acquired, constructed, equipped and
installed. The Authority hereby appoints the Consolidated Government as its sole and exclusive
agent to proceed with the acquiring, constructing, equipping and installing of the Project. The
Consolidated Government hereby agrees that it will proceed with acquiring, constructing and
installing the Project. The Consolidated Government shall obtain or cause to be obtained all
necessary approvals from any and all governmental agencies requisite to undertaking the
acquisition, construction and equipping of the Project. The Project shall be acquired, constructed
and installed in compliance with all federal, state and local laws, ordinances and regulations
applicable thereto. The Consolidated Government will take or cause to be taken such action and
institute or cause to be instituted such proceedings as it shall deem appropriate to cause and
require all contractors and suppliers of materials to complete their contracts, including the
correcting of any defective work, and the Authority agrees that the Consolidated Government,
from time to time, in its own name or in the name of the Authority, may take or cause to be taken
such action as may be necessary or advisable, as determined by the Consolidated Government, to
assure that the construction and the installation of the Project will proceed in an efficient and
workmanlike manner. Any amounts recovered by way of damages, refunds, adjustments or
otherwise in connection with the foregoing shall (i) if the Consolidated Government has
corrected at its own expense the matter which gave rise to such default or breach, be paid to the
Consolidated Government or (ii) if the Consolidated Government has not corrected at its own
expense the matter which gave rise to such default or breach, be paid into the Construction Fund
created under the Bond Resolution.
(b) The Consolidated Government will do all things, and take all reasonable and
prudent measures, necessary to continue construction with due diligence and to expend the
moneys credited to the Construction Fund as expeditiously as possible in order to assure the
completion of the Project, on the earliest practicable date, and will indemnify itself against the
usual hazards incident to the construction of the Project, and without in any way limiting the
generality of the above, agrees to: (i) require each construction contractor to furnish a bond, or
bonds, of such type and in amounts adequate to assure the faithful performance of their contracts
13
and the payment of all bills and claims for labor and material arising by virtue of such contract;
and (ii) require each construction contractor or the subcontractor to maintain at all times until the
completion and acceptance of the undertaking adequate compensation insurance for all of their
employees and adequate public liability and property damage insurance for the full and complete
protection of the Authority and the Consolidated Government from any and all claims of every
kind and character which may arise by virtue of the operations under their contracts, whether
such operations be by themselves or by anyone directly or indirectly for them, or under their
control.
(c) The moneys credited to the Construction Fund from the sale of the Series 2010
Bonds shall be used and applied for the purpose of paying the cost of the Project described in the
Project Report as provided in the Bond Resolution.
Section 3.3. Establishment of Completion Date.
The Completion Date shall be evidenced to the Construction Fund Custodian by a
certificate signed by a duly authorized representative of the Consolidated Government stating
that, except for amounts retained by the Construction Fund Custodian at the Consolidated
Government's direction to pay any cost of the Project not then due and payable, (a) the Project
has been completed and all costs of labor, services, materials and supplies have been paid, and
(b) all other facilities necessary in connection with the Project have been acquired, constructed,
improved, and equipped and all costs and expenses incurred in connection therewith have been
paid (the `Completion Certificate "). Notwithstanding the foregoing, the Completion Certificate
shall state that it is given without prejudice to any rights against third parties which exist at the
date of the Completion Certificate or which may subsequently come into being. Upon receipt of
the Completion Certificate, the Construction Fund Custodian shall retain in the Construction
Fund a sum equal to the amounts necessary for payment of the costs of the Project not then due
and payable according to the Completion Certificate. If any such amounts so retained are not
subsequently used, prior to any transfer of such amounts to the Sinking Fund, the Construction
Fund Custodian shall give notice to the Authority and the Consolidated Government of the
failure to apply such funds for payment of the costs of the Project. Any amount not to be
retained in the Construction Fund for payment of the costs of the Project, and all amounts so
retained but not subsequently used, shall be applied in accordance with Section 502 of the Bond
Resolution.
Section 3.4. In Event Construction Fund Insufficient.
The Authority does not make any warranty, either express or implied, that the moneys
which will be paid into the Construction Fund will be sufficient to pay all the costs of the
Project. The Consolidated Government and the Authority agree that, if after exhaustion of the
moneys in the Construction Fund the Consolidated Government should pay any additional costs
of the Project, neither the Consolidated Government nor the Authority shall be entitled to any
diminution in or postponement or abatement of the amount of the Contract Payments and other
amounts payable under Article IV hereof.
14
Section 3.5. Title to the Project.
The Project shall be constructed on land owned by the Consolidated Government and title
to the Project shall be in the Consolidated Government.
Section 3.6. Application of Moneys in the Construction Fund.
As provided in Section 503 of the Bond Resolution and hereinbelow, the Consolidated
Government covenants to submit requisitions to the Construction Fund Custodian for the use of
the moneys in the Construction Fund for the following purposes (but for no other purposes):
(a) payment of (i) the cost of the preparation of plans and specifications
(including any preliminary study or planning of the Project or any aspect thereof), (ii) the
cost of acquisition, construction, equipping and installation of the Project and all
construction, acquisition, equipping and installation expenses required to provide utility
services or other facilities and all real or personal properties deemed necessary in
connection with the Project (including development, architectural, engineering, and
supervisory services with respect to any of the foregoing), and (iii) any other costs and
expenses relating to the Project;
(b) payment of the purchase price of any component of the Project, including
all costs incident thereto, payment for labor, services, materials, and supplies used or
furnished in site improvement and in the construction of the Project, including all costs
incident thereto, payment for the cost of the construction, acquisition, installation,
equipping of utility services or other facilities, payment for all real and personal property
deemed necessary in connection with the Project, payment of consulting and
development fees, and payment for the miscellaneous expenses incidental to any of the
foregoing items including the premium on any surety bond;
(c) payment of the costs of issuing the Series 2010 Bonds;
(d) payment of expenses incurred in seeking to enforce any remedy against
any contractor or subcontractor or their surety in respect of any default under a contract
relating to the Project;
(e) payment of the fees or out -of- pocket expenses of the Consolidated
Government or the Authority, if any, relating to the Project, including, but not limited to,
architectural, engineering, and supervisory services with respect to the Project;
(0 payment of the fees, or out -of- pocket expenses, if any, of those providing
services with respect to the Project, including, but not limited to, architectural,
engineering, legal, accounting, and supervisory services;
(g) payment to the Consolidated Government or the Authority of such
amounts, if any, as shall be necessary to reimburse the Consolidated Government or the
Authority in full for all advances and payments made by either of them for any of the
items set forth in clauses (a) through (e) above;
15
(h) payment of any other costs and expenses (including administrative fees
and expenses of the Authority) relating to the Project permitted to be paid by the
Authority under the Act; and
(i) all proceeds of the Series 2010 Bonds remaining in the Construction Fund
after the Completion Date, less amounts retained or set aside to meet costs not then due
and payable or which are being contested, shall be deposited in the Sinking Fund.
Section 3.7. Disbursements from the Construction Fund.
All disbursements from the Construction Fund shall be made upon draft, signed by the
Authorized Consolidated Government Representative and Authorized Authority Representative
following the submission of a requisition in substantially the form of Exhibit "C" attached to the
Bond Resolution.
Section 3.8. Authorized Consolidated Government and Authority Representatives.
The Consolidated Government and the Authority, respectively, shall designate, in the
manner prescribed in Section 1.1 hereof, the Authorized Consolidated Government
Representative and the Authorized Authority Representative. In the event that any person so
designated and his alternate or alternates, if any, should become unavailable or unable to take
any action or make any certificate provided for or required in this Contract, a successor shall be
appointed in the same manner.
16
ARTICLE IV.
EFFECTIVE DATE OF THIS CONTRACT;
DURATION OF TERM; CONTRACT PAYMENT PROVISIONS
Section 4.1. Effective Date of this Contract; Duration of Term.
This Contract shall become effective upon its delivery and shall be in full force and effect
until October 1, 2030, subject to the provisions of this Contract permitting earlier termination
(including particularly Article VII hereof), or if all of the Series 2010 Bonds have not been paid
or retired (or provision has not been made as provided in the Bond Resolution), until the date as
such payment or provisions shall have been made; provided however, that the covenants and the
obligations expressed herein to so survive shall survive the termination of this Contract, but in no
event shall the term of this Contract exceed 50 years.
Section 4.2. Contract Payments and Additional Payments.
(a) The Consolidated Government agrees to pay to the Authority on or before each
April 1 and October 1, commencing April 1, 2011, until the principal of, premium, if any, and
interest on the Series 2010 Bonds shall have been fully paid or provision for the payment thereof
shall have been made in accordance with the Bond Resolution, in immediately available funds, a
sum which, together with other moneys available therefor in the Sinking Fund, will enable the
Sinking Fund Custodian to pay to the Paying Agent the amount payable on such date as principal
of (whether at maturity, by mandatory redemption or otherwise), and interest on the Series 2010
Bonds as provided in the Bond Resolution.
Any payment shall be reduced and need not be made to the extent that there are monies
on deposit in the Sinking Fund in excess of the amount required for the payment of Series 2010
Bonds theretofore matured or called for redemption, the amount required for the payment of
interest for which checks or drafts have been mailed by or on behalf of the Authority, and past
due interest in all cases where Series 2010 Bonds have not been presented for payment. Further,
if the amount held by the Sinking Fund Custodian in the Sinking Fund should be sufficient to
pay at the times required the principal of, premium, if any, and interest on the Series 2010 Bonds
then remaining unpaid, the Consolidated Government shall not be obligated to make any further
payments under the provisions of this Section. There shall also be a credit against remaining
payments for Series 2010 Bonds purchased, redeemed, or cancelled, as provided in Article III of
the Bond Resolution. Any payment not received by the Sinking Fund Custodian when due shall
continue as an obligation of the Consolidated Government until paid and shall bear interest at the
rate of interest on the Series 2010 Bonds to which such payment relates.
(b) In addition to the foregoing Contract Payments, the Consolidated Government
will also pay the reasonable fees and expenses of all custodians and depositories, the Paying
Agent and Bond Registrar and of their successors and assigns as provided by Section 702 of the
Bond Resolution, such reasonable fees and expenses to be paid directly to the party to whom the
payment is due when such reasonable fees and expenses become due and payable.
17
(c) The Consolidated Government will also pay all costs of operating and
maintaining the Project and any taxes or governmental charges of any kind whatsoever that may
levied against the Project. The Consolidated Government acknowledges that the Authority is not
obligated to pay any obligations with respect to the Project and that the Consolidated
Government shall pay the same.
(d) The Consolidated Government will also pay any costs payable for transfers and
exchanges of the Series 2010 Bonds and the expenses for printing any temporary Series 2010
Bonds.
(e) In the event the Consolidated Government should fail to make any of the
payments required in this Section 4.2, the item or installment so in Default shall continue as an
obligation of the Consolidated Government until the amount in Default shall have been fully
paid, and the Consolidated Government agrees to pay the same with interest thereon at the rate
borne by the Series 2010 Bonds, to the extent permitted by law, from the date thereof.
Section 4.3. Obligations of the Consolidated Government Hereunder
Unconditional.
(a) The obligations of the Consolidated Government to make the payments required
in Section 4.2 and other sections hereof and to perform and observe the other agreements
contained herein shall be a general obligation of the Consolidated Government and absolute and
unconditional and shall not be subject to any defense or any right of setoff, counterclaim or
recoupment it may have against the Authority. Until such time as the principal of and interest on
the Series 2010 Bonds shall have been fully paid or provision for the payment thereof shall have
been made in accordance with the Bond Resolution, the Consolidated Government (i) will not
suspend, abate, reduce, abrogate, diminish, postpone, modify or discontinue any payments
provided for in Section 4.2 hereof, (ii) fail to observe any of its other agreements contained in
this Contract, or (iii) will not terminate the Contract for any cause, including, without limiting
the generality of the foregoing, failure of the Consolidated Government's title in and to the
Project or any part thereof, failure to complete the Project, any acts or circumstances that may
constitute failure of consideration, eviction or constructive eviction, destruction of or damage to
the Project, the taking by eminent domain of title to or the use of all or any part of the Project,
commercial frustration of purpose, any change in the tax or other laws of the United States of
America or of the State or any political subdivision of either, any declaration or finding that any
of the Series 2010 Bonds are unenforceable or invalid, the invalidity of any provision of this
Contract or any failure of the Authority to perform and observe any agreement, whether express
or implied, or any duty, liability or obligation arising out of or connected with this Contract or
the Bond Resolution.
(b) Nothing contained in this Section shall be construed to release the Authority
from the performance of any of the agreements on its part herein contained, and in the event the
Authority should fail to perform any such agreement on its part, the Consolidated Government
may institute such action against the Authority as the Consolidated Government may deem
necessary to compel performance so long as such action does not abrogate the obligations of the
Consolidated Government hereunder. The Authority hereby agrees that it shall not take or omit
to take any action that would cause this Contract to be terminated. The Consolidated
18
Government may, however, at its own cost and expense and in its own name or in the name of
the Authority, prosecute or defend any action or proceeding or take any other action involving
third persons that the Consolidated Government deems reasonably necessary in order to secure
or protect its rights hereunder, and in such event the Authority hereby agrees to cooperate fully
with the Consolidated Government and to take all action necessary to effect the substitution of
the Consolidated Government for the Authority in any such action or proceeding if the
Consolidated Government shall so request.
Section 4.4. Security for Contract Payments.
(a) As security for the payments required to be made and the obligations required to
be performed by the Consolidated Government under this Contract, the Consolidated
Government hereby pledges to the Authority its full faith and credit and taxing power for such
payment and performance. The Consolidated Government covenants that, in order to make any
payments when due from its general funds to the extent required hereunder, it will exercise its
power of taxation to the extent necessary to pay the amounts required to be paid under this
Contract, including, but not limited to the amounts set forth in Section 4.2 hereof, and it will
make available and use for the payment of its obligations incurred hereunder all such taxes
levied and collected for that purpose together with funds received from any other sources. The
Consolidated Government further covenants and agrees that in order to make such funds
available for such purpose in each Fiscal Year, it will, in its revenue, appropriation, and
budgetary measures whereby its tax funds or revenues and the allocation thereof are controlled or
provided for, include sums sufficient (within the millage limitation prescribed by law) to satisfy
any such payments that may be required to be made under this Contract, whether or not any
other sums are included in such measure, until all payments required to be made under this
Contract shall have been made in full. The obligation of the Consolidated Government to make
the Contract Payments constitutes a general obligation of the Consolidated Government and a
pledge of the full faith and credit and taxing powers of the Consolidated Government to provide
the funds required to fulfill any such obligation. In the event for any reason any such provision or
appropriation is not made as provided in this Section 4.4, then the fiscal officers of the
Consolidated Government are hereby authorized and directed to set up as an appropriation on
their accounts in the appropriate Fiscal Year the amounts required to pay the obligations that
may be due from the general funds of the Consolidated Government. The amount of such
appropriation shall be due and payable and shall be expended for the purpose of paying any such
obligations, and such appropriation shall have the same legal status as if the Consolidated
Government had included the amount of the appropriation in its general revenue, appropriation,
and budgetary measures, and the fiscal officers of the Consolidated Government shall make such
payments to the Authority if for any reason the payment of such obligations shall not otherwise
have been made.
(b) The Consolidated Government covenants and agrees that it shall, to the extent
necessary, levy an annual ad valorem tax on all taxable property located within the territorial
limits of the Consolidated Government, as now existent and as the same may hereafter be
extended, at such rate or rates, within the mill limit prescribed by the Constitutional Amendment
or within such greater millage as may hereafter be prescribed by applicable law, as may be
necessary to produce in each year revenues that will be sufficient to fulfill the Consolidated
Government's obligations under this Contract, from which revenues the Consolidated
19
Government agrees to appropriate sums sufficient to pay in full when due all of the Consolidated
Government's obligations under this Contract. The Consolidated Government hereby grants a
lien in favor of the Authority on any and all revenues realized by the Consolidated Government
from such tax, to make the payments that are required under this Contract, which lien (i) is
granted pursuant to Section 3.02(e) of the Service Agreement and the Sale Agreement, (ii) shall
rank on a parity with the lien created and granted with respect to the Service Agreement and the
Sale Agreement and which covers the other Prior Contracts and (iii) is superior to any that can be
created, except that the lien covers the other Prior Contracts and can be extended to cover
Additional Contracts, as set forth in Section 3.02(e) of the Sale Agreement and the Service
Agreement and Section 4.4(e) hereof. Nothing herein contained, however, shall be construed as
limiting the right of the Consolidated Government to make the payments called for by this
Contract out of any funds lawfully available to it for such purpose, from whatever source derived
(including general funds).
(c) The Consolidated Government's obligation to levy an annual ad valorem tax
within the mill limit prescribed by the Constitutional Amendment, or such greater millage
hereafter authorized by law, for the purpose of providing funds to meet the Consolidated
Government's payment obligations under this Contract shall not be junior and subordinate, but
shall be superior or equal to the Consolidated Government's obligation to levy an annual ad
valorem tax at such rate or rates within such mill limit or such greater millage as now or
hereinafter prescribed by law pursuant to the provisions of the Prior Contracts and any
Additional Contract. It is expressly provided, however, that the Consolidated Government shall
not be required to levy a tax in any year at a rate or rates exceeding in the aggregate the
maximum millage prescribed by the Constitutional Amendment for such year, or any greater
millage hereafter prescribed by law, in order to meet its obligations under the Prior Contracts,
this Contract and any Additional Contracts (collectively, the "Consolidated Government
Contracts ").
(d) So long as the Coliseum Bonds and the Series 2010 Bonds are unpaid, the
Consolidated Government shall not:
(1) enter into an Additional Contract that creates a lien on the revenues to be
derived from the tax to be levied hereunder by the Consolidated Government to fulfill its
obligations hereunder, which is superior to the lien created hereunder,
(2) enter into any other contract or agreement creating a lien on such tax
revenues for any purpose other than debt service payments (including creation and
maintenance of reasonable reserves therefor) superior to or on a parity with the lien
created thereon to fulfill the obligations of the Consolidated Government hereunder, and
(3) enter into any Additional Contract that provides for payment to be made
by the Consolidated Government from monies derived from the levy of a tax within the
maximum millage now or hereafter authorized by law if each annual payment of all
amounts payable with respect to debt service or which are otherwise fixed in amount or
currently budgeted in amount under all Consolidated Government Contracts then in
existence, together with each annual payment to be made under the proposed Additional
Contract, in each future Fiscal Year, would exceed the amount then capable of being
20
produced by a levy of a tax within the maximum millage now or hereafter authorized by
law on the taxable value of property located within the territorial limits of the
Consolidated Government subject to taxation for such purposes, as shown by the latest
tax digest available immediately preceding the execution of any such Additional
Contract.
(e) It is further expressly provided that so long as the Coliseum Bonds and the Series
2010 Bonds are unpaid, the Consolidated Government shall not hereafter enter into any
Additional Contract for the purpose of debt service payments (including creation and
maintenance of reserves therefor), unless the amount then capable of being produced by the levy
of an ad valorem tax within the maximum millage then prescribed by the Constitutional
Amendment or any successor provision on all taxable property within the territorial limits of the
Consolidated Government, as shown by the latest tax digest available immediately preceding the
execution of such Additional Contract, is equal to the maximum combined amount payable in
any future Fiscal Year with respect to debt service under all existing Consolidated Government
Contracts and any such Additional Contract. Debt service for purposes of this paragraph (e)
shall mean required payments of principal, including principal to be paid through mandatory
redemption, interest, and amounts required to be paid for creation and maintenance of reasonable
debt service reserves and to establish and maintain mandatory investment programs, less
principal and interest received or to be received from investment of any of the foregoing amounts
(except funds on hand or to be on hand in any debt service reserve) required to be applied to debt
service in each Fiscal Year. So long as the Coliseum Bonds are outstanding, the Consolidated
Government shall furnish the Authority, not less than five (5) nor more than sixty (60) days prior
to the date of execution and delivery of any such Additional Contract, a report of an independent
certified public accountant to the effect that, based upon an affidavit of the Tax Commissioner of
Richmond County as to the taxable value of property located within the territorial limits of the
Consolidated Government, the requirements of this paragraph (e) have been met.
Section 4.5. Security for Series 2010 Bonds.
As security for the payment of the Series 2010 Bonds, the Authority has adopted the
Bond Resolution. The Consolidated Government hereby assents to the assignment and pledge
made in the Bond Resolution and hereby agrees that its obligations to make all payments under
this Contract shall be absolute and shall not be subject to any defense, except payment, or to any
right of setoff, counterclaim, or recoupment arising out of any breach by the Authority of any
obligation to the Consolidated Government, whether hereunder or otherwise, or arising out of
any indebtedness or liability at any time owing to the Consolidated Government by the
Authority. The Consolidated Government further agrees that all payments required to be made
under this Contract, except for those arising out of Unassigned Rights, shall be paid directly to
the Sinking Fund Custodian for the account of the Authority for deposit in the Sinking Fund.
The Bondholders shall have all rights and remedies herein accorded to the Authority (except for
Unassigned Rights), and any reference herein to the Authority shall be deemed, with the
necessary changes in detail, to include the Bondholders, and the Bondholders are deemed to be
and are third party beneficiaries of the representations, covenants, and agreements of the
Consolidated Government herein contained.
21
ARTICLE V.
DAMAGE, DESTRUCTION AND CONDEMNATION; USE OF NET PROCEEDS
Section 5.1. Damage, Destruction and Condemnation.
If prior to full payment of the Series 2010 Bonds (or provisions for payment thereof in
accordance with the provisions of the Bond Resolution) (i) the Project or any portion thereof is
destroyed (in whole or in part) or is damaged by fire or other casualty or is unavailable for any
reason whatsoever or (ii) title to or any interest in, or the temporary use of, the Project or any
part thereof shall be taken under the exercise of the power of eminent domain, the Consolidated
Government shall be obligated to continue to pay the amounts specified in Section 4.2 hereof.
Section 5.2. Application of Net Proceeds.
The Authority and the Consolidated Government will cause the Net Proceeds of any
insurance proceeds or condemnation award resulting from any events described in Section 5.1
hereof to be paid to the Consolidated Government and such Net Proceeds shall be applied in the
manner as follows:
(a) promptly to repair, rebuild, or replace the property damaged or taken; or
(b) to redeem the Series 2010 Bonds in accordance with the Bond Resolution.
Any application of Net Proceeds under Paragraphs (a) or (b) above shall not affect the
Consolidated Government's obligation under Section 4.2 hereof.
Notwithstanding the foregoing, the Consolidated Government shall not apply the Net
Proceeds under paragraphs (a) or (b) above until it delivers an opinion of recognized bond
counsel to the Authority to the effect that such application is permitted under the laws of the
State and will not cause the interest on the Series 2010 Bonds to be included in the gross income
of the owners thereof.
Section 5.3. Cooperation of the Authority.
The Authority shall cooperate fully with the Consolidated Government, at the expense of
the Consolidated Government, in filing any proof of loss with respect to any insurance policy
covering the casualties described in Section 5.1 hereof and in the prosecution or defense of any
prospective or pending condemnation proceeding with respect to the Project or any part thereof
or any property of the Consolidated Government in connection with which the Project is used
and will, to the extent it may lawfully do so, permit the Consolidated Government to litigate in
any proceeding resulting therefrom in the name and on behalf of the Authority. In no event will
the Authority voluntarily settle, or consent to the settlement of, any proceeding arising out of any
insurance claim with respect to the Project or any part thereof without the written consent of the
Consolidated Government.
22
ARTICLE VI.
SPECIAL COVENANTS
Section 6.1. No Warranty of Condition or Suitability by Authority.
The Authority makes no warranty, either express or implied, as to the habitability,
merchantability, condition or workmanship of any part of the Project, or that the Project will be
suitable for the purposes or needs of the Consolidated Government.
Section 6.2. Access to the Project.
The Consolidated Government agrees that the Authority and its duly authorized agents
shall have such rights of access to the Project as may be reasonably necessary to ensure that the
Consolidated Government is performing its obligations hereunder.
Section 6.3. Further Assurances and Corrective Instruments.
The Authority and the Consolidated Government agree that they will, from time to time,
execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, such
supplements hereto and such further instruments as may reasonably be required for carrying out
the expressed intention of this Contract.
Section 6.4. Authority and Consolidated Government Representatives.
Whenever under the provisions of this Contract the approval of the Authority or the
Consolidated Government is required or the Authority or the Consolidated Government is
required to take some action at the request of the other, such approval or such request shall be
given for the Authority by its Authorized Authority Representative and for the Consolidated
Government by its Authorized Consolidated Government Representative.
Section 6.5. Provisions Respecting Insurance.
The Consolidated Government agrees to cause to be maintained all necessary insurance
with respect to the Project in accordance with its customary insurance practices.
Section 6.6. Investment of Funds and Accounts.
Subject to Section 701 of the Bond Resolution and Section 6.7 hereof, any moneys held
as a part of the Sinking Fund, the Construction Fund, or any other special trust account shall be
invested or reinvested by the Sinking Fund Custodian or the Construction Fund Custodian, as the
case may be, at the written direction of the Authorized Consolidated Government Representative
in such Permitted Investments as may be designated by the Consolidated Government. The
Sinking Fund Custodian or the Construction Fund Custodian, as the case may be, may make any
and all such investments through its own bond or investment department or through its
broker - dealer affiliate.
23
The investments so purchased shall be held by the Sinking Fund Custodian or the
Construction Fund Custodian, as the case may be, and shall be deemed at all times a part of the
Sinking Fund, the Construction Fund, or the trust account described in the preceding paragraph,
as the case may be, and the interest accruing thereon and any profit realized therefrom shall be
credited to such fund or account, and any losses resulting from such investments shall be charged
to such fund or account therein and paid by the Consolidated Government.
Section 6.7. Special Investment Covenants.
The Authority and the Consolidated Government each covenant that it will not directly or
indirectly use or permit the use of any proceeds (as defined in the Regulations) of any Series
2010 Bonds or any other funds of the Authority or the Consolidated Government, or take or omit
to take any action, or direct the Construction Fund Custodian or the Sinking Fund Custodian to
invest any funds held by it, in such manner as will, or allow any "related party" (as defined in
Section 1.150 -1(b) of the Regulations) to enter into any arrangement, formal or informal, as will,
cause any Series 2010 Bonds to be "federally guaranteed," as such term is used and defined in
Section 149(b) of the Code, or to be "arbitrage bonds" within the meaning of Section 148 of the
Code, and any Regulations proposed or adopted in connection therewith. To that end, the
Authority and the Consolidated Government shall comply with all requirements of Section
149(b) and Section 148 of the Code to the extent applicable to any the Series 2010 Bonds. In the
event that at any time the Authority or the Consolidated Government is of the opinion that for
purposes of this Section 6.7 it is necessary to dispose of any investment or to restrict or limit the
yield on any investment held under the Bond Resolution or otherwise, the Authority or the
Consolidated Government, as the case may be, shall so instruct the Construction Fund Custodian
or the Sinking Fund Custodian in writing.
Section 6.8. Calculation and Payment of Rebate Amount.
The Consolidated Government agrees to appoint and pay a Rebate Calculator to calculate
and determine the Rebate Amount, if any, as required by Section 148(0 of the Code and any
Regulations proposed or promulgated in connection therewith. All calculations and
determinations made by a Rebate Calculator shall be accompanied by the opinion of a Rebate
Calculator that such calculations and determinations have been made in accordance with the
requirements of Section 148(0 of the Code. The Consolidated Government agrees to pay to the
United States Treasury for and on behalf of the Authority the amount determined by the Rebate
Calculator to be due to the United States Treasury before the due date specified by the Rebate
Calculator. The obligations created by this Section 6.8 shall survive the termination of this
Contract. The Authority hereby delegates to the Consolidated Government the authority and
responsibility for compliance with Section 148(0 of the Code.
Section 6.9. Consolidated Government's Obligations in the Bond Resolution.
The Consolidated Government agrees to perform all of its obligations (and those
applicable to it as the Authority's agent) under, and to comply with all of the terms of, the Bond
Resolution.
24
Section 6.10. Operation and Maintenance of the Project; Modification of Project.
(a) The Consolidated Government agrees that, at all times during the Term (i) the
Consolidated Government will cause the Project to be operated and maintained in good repair
and in accordance herewith and (ii) the Consolidated Government will be responsible for
maintaining and operating the Project. Without limiting the foregoing, the Consolidated
Government agrees that it will maintain the Project in an efficient and economical manner, that it
will at all times maintain the Project in good repair and in sound operating condition, that it will
make all necessary repairs and replacements to the Project, and that it will comply with all valid
acts, rules, regulations, orders and directions of any legislative, executive, administrative or
judicial body applicable to the Project and its operation thereof.
(b) The Consolidated Government may, from time to time, in its sole discretion and
at its own expense, make any additions, modifications or improvements to the Project, which it
may deem desirable for its business purposes; provided that all such additions, modifications and
improvements do not adversely affect the structural integrity of the Project.
Section 6.11. Books and Records.
The Consolidated Government agrees that it will keep accurate records and accounts of
all items relating to the Project. Such records and accounts shall be open to the inspection of the
Authority at reasonable times and upon reasonable request.
Section 6.12. Release and Indemnification Covenants.
(a) To the extent permitted by law, Consolidated Government hereby agrees to
release the Authority from and to indemnify the Authority for any and all liabilities and claims
against the Authority arising from the conduct or management of the Project, or from any work
or thing done on or with respect to the Project, or the financing or refinancing of the Project,
including without limitation, (i) any condition of the Project, (ii) any breach or Default on the
part of the Consolidated Government in the performance of any of its obligations under this
Contract, (iii) any act or negligence of the Consolidated Government or of any of its agents,
contractors, servants, employees or licensees, or (iv) any act or negligence of any assignee or
sublessee of the Consolidated Government, or of any agents, contractors, servants, employees or
licensees of any assignee or sublessee of the Consolidated Government or (v) any material
statement or omission by the Consolidated Government in connection with the sale of the Series
2010 Bonds. Upon notice from the Authority, the Consolidated Government shall defend the
Authority in any such action or proceeding. In addition, to the extent permitted by law, the
Consolidated Government agrees to release the Construction Fund Custodian, the Sinking Fund
Custodian, the Paying Agent, and the Bond Registrar and shall indemnify and hold them
harmless against any loss, liability or other expense incurred without gross negligence or bad
faith on the part of the Construction Fund Custodian, the Sinking Fund Custodian, the Paying
Agent, or the Bond Registrar arising out of or in connection with the acceptance or
administration of the duties of the Construction Fund Custodian, the Sinking Fund Custodian, the
Paying Agent, or the Bond Registrar under the Bond Resolution, including the costs and
expenses of defending against any such claim or liability.
25
(b) Any one or more of the parties indemnified in this Section 6.12 shall have the
right to employ separate counsel in any such action and to participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of such parties unless the
employment of such counsel has been specifically authorized by the Consolidated Government.
(c) Notwithstanding the foregoing provisions of this Section 6.12, the Consolidated
Government shall not indemnify the Authority, the Construction Fund Custodian, the Sinking
Fund Custodian, the Paying Agent or the Bond Registrar for any claim or loss arising as a result
of the gross negligence or willful misconduct of the Authority, the Construction Fund Custodian,
the Sinking Fund Custodian, the Paying Agent, or the Bond Registrar, or for any claim that the
Consolidated Government is prohibited by law from providing indemnification to such party.
(d) For purposes of this Section 6.12, all references to the Authority, the Construction
Fund Custodian, the Sinking Fund Custodian, the Paying Agent, and the Bond Registrar shall
include its present and future directors, officers, members, agent and employees.
(e) The provisions of this Section 6.12 shall survive the termination of this Contract.
Section 6.13. Continuing Disclosure.
The Consolidated Government hereby covenants and agrees that it will comply and carry
out all of the provisions of the Series 2010 Disclosure Certificate. Notwithstanding any
provision of this Contract, failure of the Consolidated Government to comply with the Series
2010 Disclosure Certificate shall not be considered an Event of Default; however, any beneficial
owner of the Series 2010 Bonds may take such actions as may be necessary and appropriate,
including seeking specific performance by court order, to cause the Consolidated Government to
comply with its obligations under this Section 6.13.
Section 6.14. Tax Status of Series 2010 Bonds.
The Consolidated Government recognizes that the purchasers and owners of the Series
2010 Bonds will have accepted the Series 2010 Bonds on, and paid an amount therefor
reflecting, the understanding that interest on the Series 2010 Bonds is excluded from the gross
income of the owners for federal income tax purposes under laws in force at the time the Series
2010 Bonds shall have been delivered. The Consolidated Government covenants that it will not
take or omit to take any action nor permit any action to be taken or omitted that would cause the
interest on any Series 2010 Bonds to become includable in the gross income of any owner
thereof.
The Consolidated Government further covenants and agrees that it shall comply with the
representations and certifications it made in its Consolidated Government's Tax Certificate dated
the date of issuance of the Series 2010 Bonds and that it shall take no action nor omit to take any
action that would cause such representations and certifications to be untrue.
The Consolidated Government agrees to furnish the Authority any items (including,
without limitation, certificates of the Consolidated Government and opinions of Bond Counsel)
reasonably requested by it to evidence compliance with the covenants contained in this
Section 6.14.
26
ARTICLE VII.
ASSIGNMENT; PREPAYMENTS
Section 7.1. No Assignment by Consolidated Government.
This Contract may not be sold, assigned, delegated, or encumbered by the Consolidated
Government.
Section 7.2. Redemption of Series 2010 Bonds.
The Authority, at the written request of the Consolidated Government at any time and if
the Series 2010 Bonds are then callable or available for purchase, and if there are funds available
therefor, shall forthwith take all steps that may be necessary under the applicable redemption or
purchase provisions of the Bond Resolution to effect redemption or purchase of all or part of the
then outstanding Series 2010 Bonds, as may be specified by the Consolidated Government, on
the earliest date on which such redemption or purchase may be made under such applicable
provisions.
Section 7.3. Prepayment of Amounts Due Hereunder.
There is expressly reserved to the Consolidated Government the right, and the
Consolidated Government is authorized and permitted, at any time it may choose, to prepay all
or any part of the amounts payable under Section 4.2(a) hereof, and the Authority agrees that the
Sinking Fund Custodian may accept such prepayments when the same are tendered by the
Consolidated Government. All payments so prepaid shall at the written direction of the
Consolidated Government be credited toward the payments specified in Section 4.2(a) hereof, in
the order of their due dates, or applied to the retirement of Series 2010 Bonds prior to maturity
(either by redemption or purchase) in accordance with the Bond Resolution. The Consolidated
Government shall also have the right to surrender Series 2010 Bonds acquired by it in any
manner whatsoever to the Authority for cancellation, and such Series 2010 Bonds, upon such
surrender and cancellation, shall be deemed to be paid and retired and shall be allocated as
credits to payments as provided in the Bond Resolution.
Section 7.4. Option to Prepay Amounts Due Hereunder and Redeem the Series
2010 Bonds.
The Consolidated Government shall also have the option to prepay the amounts required
to be paid under Section 4.2(a) hereof related to the Series 2010 Bonds and other amounts
payable under this Contract in such manner and amounts as will enable the Authority to redeem
the Series 2010 Bonds prior to maturity on or after April 1, 2021, in whole or in part on any date,
as provided in Section 301 of the Bond Resolution. Series 2010 Bonds redeemed pursuant to
this Section shall be redeemed in accordance with the procedures set forth in Article III of the
Bond Resolution. The aggregate amount payable by the Consolidated Government in the event
of its exercise of the option granted under this Section shall be (i), in the case of partial
redemption, the amount necessary to pay principal, all interest to accrue to the redemption date,
the applicable redemption premium, as provided in Section 301 of the Bond Resolution, and any
redemption expense, and (ii) in the case of a total redemption, the amounts set forth in Article X
27
of the Bond Resolution and the applicable redemption premium, as provided in Section 301 of
the Bond Resolution.
28
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
Section 8.1. Events of Default Defined.
The following shall be "Events of Default" under this Contract and the terms "Event of
Default" and "Default" shall mean, whenever they are used in this Contract, any one or more of
the following events:
(a) Failure by the Consolidated Government to make the payments required to be
paid under Section 4.2(a) hereof at the times specified therein.
(b) Failure by the Consolidated Government or the Authority to observe and perform
any covenant, condition or agreement on its part to be observed or performed, other than as
referred to in subparagraph (a) of this Section 8.1, for a period of 30 days after written notice
specifying such failure and requesting that it be remedied is given to the defaulting party by the
nondefaulting party, unless the nondefaulting party shall agree in writing to an extension of such
time prior to its expiration. In the case of any such breach or default that cannot with due
diligence be cured within such thirty (30) day period but can be wholly cured within a period of
time not materially detrimental to the rights of the Authority and the Bondholders, to be
determined conclusively by the Bondholders, it shall not constitute an Event of Default if
corrective action is instituted by the Consolidated Government within the applicable period and
diligently pursued until the breach or default is corrected in accordance with and subject to any
directions or limitations of time established in writing by the Bondholders.
(c) The occurrence of an Event of Default under the Bond Resolution.
(d) The Consolidated Government shall (i) apply for or consent to the appointment of
or the taking of possession by a receiver, custodian, trustee, or liquidator of it or of all or a
substantial part of its property, (ii) enter into an agreement of composition with its creditors,
(iii) admit in writing its inability to pay its debts as such debts become due, (iv) make a general
assignment for the benefit of its creditors, (v) commence a voluntary case under the federal
bankruptcy law (as now or hereafter in effect), (vi) file a petition or answer seeking to take
advantage of any other law relating to bankruptcy, insolvency, reorganization, winding -up, or
composition or adjustment of debts, (vii) fail to controvert in a timely or appropriate manner or
acquiesce in writing to any petition filed against it in an involuntary case under such federal
bankruptcy law, or (viii) take any action for the purpose of effecting any of the foregoing.
(e) A proceeding or case shall be commenced, without the application of the
Consolidated Government, in any court of competent jurisdiction, seeking (i) the liquidation,
reorganization, dissolution, winding -up, or composition or adjustment of debts of the
Consolidated Government, (ii) the appointment of a trustee, receiver, custodian, liquidator, or the
like of the Consolidated Government or of all or any substantial part of the assets of it, or
(iii) similar relief in respect of the Consolidated Government under any law relating to
bankruptcy, insolvency, reorganization, winding -up, or composition and adjustment of debts, and
such proceeding or case shall continue undismissed or an order, judgment, or decree approving
29
or ordering any of the foregoing shall be entered and shall continue unvacated and unstayed and
in effect for a period of sixty (60) days, whether consecutive or not.
Section 8.2. Remedies on Default.
Whenever any Event of Default referred to in Section 8.1 hereof shall have happened and
be continuing, the Authority, in its discretion, may exercise any one or more of the following
remedies:
(a) The Authority may have access to and inspect, examine, and make copies of the
books and records and any and all accounts and similar data of the Consolidated Government.
(b) The Authority may from time to time take whatever action at law or in equity or
under the terms of this Contract may appear necessary or desirable to collect the amounts
payable by the Consolidated Government hereunder then due or thereafter to become due, or to
enforce performance and observance of any obligation, agreement, or covenant of the
Consolidated Government under this Contract.
No action taken pursuant to this Section 8.2 shall relieve the Consolidated Government
from its obligations pursuant to Section 4.2 hereof, all of which shall survive any such action,
and the Authority may take whatever action at law or in equity as may appear necessary and
desirable to collect the amounts then due and thereafter to become due or to enforce the
performance and observance of any obligation, agreement, or covenant of the Consolidated
Government hereunder.
Any amounts collected pursuant to action taken under this Section 8.2 shall be paid into
the Sinking Fund and applied in accordance with the provisions of the Bond Resolution.
Section 8.3. No Remedy Exclusive.
No remedy herein conferred upon or reserved to the Authority is intended to be exclusive
of any other remedy or remedies, but each and every such remedy shall be cumulative and shall
be in addition to every other remedy given under this Contract or now or hereafter existing at law
or in equity. No delay or omission to exercise any right or power accruing upon any default shall
impair any such right or power or shall be construed to be a waiver thereof, but any such right or
power may be exercised from time to time and as often as may be deemed expedient. In order to
entitle the Authority to exercise any remedy reserved to it in this Article, it shall not be necessary
to give any notice, other than such notice as may be required in this Article. Such rights and
remedies as are given to the Authority hereunder shall also extend to Bondholders, and the
Bondholders shall be deemed to be third -party beneficiaries of all covenants and agreements
herein contained.
Section 8.4. Agreement to Pay Fees and Expenses.
In the event the Consolidated Government should default under any of the provisions of
this Contract and the Authority should employ attorneys, accountants or other experts or incur
other expenses for the collection of payments or the enforcement of performance or observance
of any obligation or agreement on the part of the Consolidated Government herein contained, the
30
Consolidated Government agrees that it will on demand therefor pay to the Authority or to the
Bondholders for the account of the Authority the reasonable fees of such attorneys, accountants,
experts and such other expenses and such other reasonable expenses so incurred by the
Authority.
Section 8.5. No Additional Waiver Implied by One Waiver.
The Authority may waive any Event of Default hereunder and its consequences. In case
of any such waiver, or in case any proceeding taken by the Authority or the Bondholders on
account of any such Event of Default shall be discontinued or abandoned or determined
adversely to the Authority or the Bondholders, then and in every such case the Authority and the
Consolidated Government shall be restored to their former position and rights hereunder, but no
such waiver or rescission shall extend to or affect any subsequent or other Event of Default or
impair or exhaust any right, power, or remedy consequent thereon.
31
ARTICLE IX.
MISCELLANEOUS
Section 9.1. Notices.
All notices, certificates, and other communications provided for hereunder shall be in
writing and sent (a) by telecopy if the sender on the same day sends a confirming copy of such
notice by a recognized overnight delivery service (charges prepaid), or (b) by registered or
certified mail with return receipt requested (postage prepaid), or (c) by a recognized overnight
delivery service (with charges prepaid). Any such notice must be sent to any party hereto at the
following addresses or to such other address as any party hereto shall have specified in writing to
the other party:
If to the Authority:
Solid Waste Management Authority of Augusta
Attn: Chairperson
Municipal Building
530 Greene Street
Augusta, GA 30911
With a copy to the Consolidated Government.
If to the Consolidated Government:
Augusta, Georgia
Attn: Administrator
530 Greene Street, Room 801
Augusta, GA 30901
Notices under this Section 9.1 shall be deemed given only when actually received.
Section 9.2. Binding Effect.
This Contract constitutes the entire agreement of the parties concerning the subject matter
hereof and superseded any prior agreement with respect thereto. This Contract shall inure to the
benefit of and shall be binding upon the Authority, the Consolidated Government, the owners of
the Series 2010 Bonds and their respective successors and assigns, subject, however, to the
limitations contained in Section 7.1.
Section 9.3. Severability.
In the event any provision of this Contract shall be held invalid or unenforceable by any
court of competent jurisdiction, such holding shall not invalidate or render unenforceable any
other provision hereof.
32
Section 9.4. Amounts Remaining in Funds.
It is agreed by the parties hereto that any amounts remaining in the Sinking Fund, the
Construction Fund or other funds provided for herein upon expiration or earlier termination of
the Contract, as provided in this Contract, after payment in full of the Series 2010 Bonds (or
provision for payment thereof having been made in accordance with the provisions of the Bond
Resolution) and all other amounts owing hereunder, shall belong to and be paid to the
Consolidated Government by the Authority as an overpayment of amounts due hereunder.
Section 9.5. Amendments, Changes and Modifications; Assignment.
This Contract may not be effectively amended, changed, modified, altered or terminated
except as provided in the Bond Resolution.
Section 9.6. Execution in Counterparts.
This Contract may be simultaneously executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same instrument.
Section 9.7. Applicable Law.
This Contract is prepared and entered into with the intention that the laws of the State of
Georgia, exclusive of such State's rules governing choice of law, shall govern its construction.
33
IN WITNESS WHEREOF, the Authority has caused this Contract to be executed in its
corporate name and with its corporate seal hereunto affixed and attested by its duly authorized
officials. The Consolidated Government has caused this Contract to be executed in its corporate
name and with its corporate seal hereunto affixed and attested by its duly authorized officials all
of the above occurred as of the date first above written.
SOLID WASTE MANAGEMENT AUTHORITY
OF AUGUSTA
(SEAL)
By:
Chairperson
Attest:
By:
Secretary
(Intergovernmental Contract)
AUGUSTA, GEORGIA
(SEAL)
By:
Mayor
Attest:
By:
Clerk
(Intergovernmental Contract)
EXHIBIT C
FORM OF
REQUISITION
The Bank of New York Mellon Trust Company, N.A.
Atlanta, Georgia
Re: Direction to Make Disbursement from the Construction Fund for the Solid Waste
Management Authority of Augusta Revenue Bonds, Series 2010
To the Addressee:
Pursuant to the resolution of the Solid Waste Management Authority of Augusta
(the "Authority ") adopted on December , 2010 (the "Resolution "), you are hereby directed to
disburse from the Construction Fund (as defined in the Resolution) the amount set forth below in
accordance with the instructions set forth below:
1. This requisition should be paid from the Construction Fund.
2. This is requisition number from the Construction Fund.
3. The name and address of the person, firm or corporation to whom the
disbursement is due is as follows:
4. The amount to be disbursed is $
5. The purpose of the payment is as follows:
6. In connection herewith, the undersigned hereby certifies as follows:
a. That an obligation in the stated amount has been incurred, that the same is
a proper charge against the Construction Fund and has not been paid, and that the bill or
statement of account for such obligation is attached hereto;
b. That no notice of any vendors, mechanic's or other liens or rights to liens,
chattel mortgages, conditional sales contracts or any security interest, which should be
satisfied or discharged before such payment is made;
C -1
c. That this requisition contains no item representing payment on account or
any retained percentages which the Consolidated Government or the Authority is, at the
date of such certificate, entitled to retain; and
d. That insofar as such obligation was incurred for work, materials, supplies
or equipment in connection with the undertaking, such work was actually performed, or
such materials, supplies or equipment were actually installed in or about the construction
or delivered at the site of the work for that purpose.
This requisition shall be retained by the Construction Fund Custodian, subject at
all times to inspection by any officer of the Consolidated Government, Authority or any
bondholder.
Dated this day of
AUGUSTA, GEORGIA
By:
Authorized Representative
SOLID WASTE MANAGEMENT AUTHORITY
OF AUGUSTA
By:
Authorized Representative
C -2
EXHIBIT D
DESCRIPTION OF PROJECT
The Consolidated Government will use the proceeds of the Series 2010 Bonds, together
with investment earnings, to improve and equip its Solid Waste Facility. The improvements will
include replacement of components of the existing gas collection and control system at the Solid
Waste Facility including the gas compression and conditioning station and the flare. Additional
improvements include (a) the installation of separate inlet pipes into each landfill cell, (b) the
installation of additional wells, and (c) associated site work, including road construction. Any
remaining proceeds of the Series 2010 Bonds will be used to upgrade the quality of the gas
produced by the landfill or the construction of a gas station on the site of the Solid Waste Facility
that will ultimately provide compressed natural gas to municipal and other vehicles.
D -1
SECRETARY'S CERTIFICATE
STATE OF GEORGIA
COUNTY OF RICHMOND
The undersigned Secretary of the Solid Waste Management Authority of Augusta
(the "Authority ") and keeper of the records and seal thereof, DOES HEREBY CERTIFY that the
foregoing pages of typewritten matter constitute a true and correct copy of the Resolution
adopted by the Authority in a meeting duly called and assembled on the 7th day of December,
2010, which meeting was open to the public and at which a quorum was presenting and acting
throughout, the original of which Resolution has been duly recorded in the Minute Book of the
Authority which is in my custody and control.
WITNESS my official hand and seal of the Authority, this 7th day of December,
2010.
/
ary
(SEAL)