HomeMy WebLinkAboutINTERGOGVENMENTAL CONTRACT SOLID WASTE MANAGEMENT AUTHORITY OF AUGUSTA 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 DA'Z'E 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. Z7
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(f) 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(f) of the Code, appointed by the Consolidated
Government pursuant to Section 6.8 hereof to make the calculations required by Section 148(f)
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
CONSOLIDA'T'ED GOVERNMENT'S PURPOSES OR THE EX'T'ENT 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;
(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;
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 43. 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(f) 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:
7
By S �d iir
,r rA ry i
�J
(Intergovernmental Contract)
AUGUSTA, GEORGIA
(SEAL) c`
4 By:� _
Mayor
Attest:
lom
4
Clerk o G� ���° ��#
0 1 %, NV. ' ' _
. 0,
_ 0 A ,,,, ..,- fi % ®�
,l f ty
V` V O § ,,, " c, • d ,c
I 'LV1 40%,‘.itt+` y
(Intergovernmental Contract)