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Home My WebLink AboutMODIFICATION OF PROMISSORY NOTE AND LOAN AGREEMENT LOAN/PROJECT NO CWSRF 09-096Statement of Facts Statement of Terms Loan /Project No. CWSRF 09 -096 MODIFICATION OF PROMISSORY NOTE AND LOAN AGREEMENT THIS MODIFICATION OF, PROMISSORY NOTE AND LOAN AGREEMENT (this "Modification ") dated L t ,'qtr , 20 i , by and between AUGUSTA - RICHMOND COUNTY, Georgia, a Georgia public body corporate and politic (the "Borrower "), and the CLEAN WATER STATE REVOLVING FUND, ADMINISTERED BY GEORGIA ENVIRONMENTAL FINANCE AUTHORITY, a Georgia public corporation (the "Lender"). A. The Lender and the Borrower are parties to that certain Contract for Financing Environmental Facilities and for Other Services, dated AUGUST 6, 2010, as amended prior to the date hereof (as so amended, the "Loan Agreement "; all capitalized terms used in this Modification but not defined herein have the meanings given in the Loan Agreement), pursuant to which the Lender made a loan to the Borrower in accordance with the terms and conditions thereof. The Borrower's obligation to repay such loan is evidenced by that certain Promissory Note, dated JULY 16, 2010, as amended prior to the date hereof (as so amended, the "Note "). B. The Lender and the Borrower desire to modify the Loan Agreement and Note in certain respects in accordance with the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the premises, the covenants and agreements contained herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Lender and the Borrower further agree as follows: 1. Amendments of Note. Subject to the fulfillment of the conditions precedent to the effectiveness of this Modification that are set forth below, the Note is hereby amended as follows: a. Accrued interest on this Note shall be payable monthly on the first day of each calendar month until the first day of the calendar month following the earlier of (1) the Completion Date (as defined in the hereinafter defined Loan Agreement), (2) DECEMBER 1, 2012, or (3) the date that the loan evidenced by this Note is fully disbursed (the "Amortization Commencement Date"). Principal of and interest on this Note shall be payable in TWO HUNDRED THIRTY -NINE (239) consecutive monthly installments equal to the Installment Amount (as hereinafter defined), commencing on the first day of the calendar month following the Amortization Commencement Date, and continuing to be due on the first day of each succeeding calendar month thereafter, together with a final installment equal to the entire remaining unpaid principal balance of and all accrued interest on this Note, which shall be due and payable on the date that is 20 years from the Amortization Commencement Date (the "Maturity Date "). 2. Amendments of Loan Agreement. Subject to the fulfillment of the conditions precedent to the effectiveness of this Modification that are set forth below, the Loan Agreement is hereby amended as follows: Section 2 (a) of the Loan Agreement is hereby amended and restated to read as follows: "The Lender agrees to advance to the Borrower, on or prior to the earlier of (1) the Completion Date (as hereinafter defined), (2) DECEMBER 1, 2012, or (3) the date that the loan evidenced by this Note is fully disbursed, the Loan in a principal amount of up to $10,570,003 which Loan may be disbursed in one or more advances but each such disbursement shall reduce the Lender's loan commitment hereunder and any sums advanced hereunder may not be repaid and then re- borrowed." Exhibit A is amended and restated to read as written in the attached Exhibit A. 3. No Other Waivers or Amendments. Except for the amendments expressly set forth and referred to in Section 1 and 2 above, the Note and the Loan Agreement shall remain unchanged and in full force and effect. Nothing in this Modification is intended, or shall be construed, to constitute a novation or an accord and satisfaction of any of the obligations created by the Note. 4. Representations and Warranties. To induce the Lender to enter into this Modification, the Borrower does hereby warrant, represent, and covenant to the Lender that: (a) each representation or warranty of the Borrower set forth in the Loan Agreement is hereby restated and reaffirmed as true and correct on and as of the date hereof as if such representation or warranty were made on and as of the date hereof (except to the extent that any such representation or warranty expressly relates to a prior specific date or period), and. no Event of Default has occurred and is continuing as of this date under the Loan Agreement; and (b) the Borrower has the power and is duly authorized to enter into, deliver, and perform this Modification, and this Modification is the legal valid, and binding obligation of the Borrower enforceable against it in accordance with its terms. 5. Conditions Precedent to Effectiveness of this Modification. The effectiveness of this Modification is subject to the truth and accuracy in all material respects of the representations and warranties of the Borrower contained in Section 4 above and to the fulfillment of the following additional conditions precedent: a. the Lender shall have received one or more counterparts of this Modification duly executed and delivered by the Borrower; and b. the Lender shall have received (1) a certified copy of the resolution adopted by the Borrower's governing body, substantially in the form of Exhibit E attached hereto, and (2) a signed opinion of counsel to the Borrower, substantially in the form of Exhibit F attached hereto. 6. Counterparts. This Modification may be executed in multiple counterparts, each of which shall be deemed to be an original and all of which when taken together shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Modification to be duly executed and delivered as of the date specified at the beginning hereof AUGUSTA- RICHMOND COUNTY orrower's Attorney By: 7 iDIIl Name: 17 4 Title: Approved As to Form:EAL) ttest: -- • D � CLEWICWAT S TATE REVOLVING FUND, ADMINISTERED BY GEORGIA ENVIRONMENTAL FINANCE AUTHORITY By: c\ w,.1, L( Kevin Clark Executive Director (SEAL) AUGUSTA - RICHMOND COUNTY CWSRF 0 Recipient: Loan Number: DESCRIPTION OF THE PROJECT PROJECT SCHEDULE 096 EXHIBIT A PAGE3OF3 This project consists of replacement of the Butler Creek Interceptor sewer line and all related appurtenances. DESCRIPTION OF THE PROJECT PROJECT BUDGET Recipient: AUGUSTA - RICHMOND COUNTY Loan Number: CWSRF 09-096 Construction Engineering Services During Construction Legal, etc. TOTAL TOTAL $8,239,240 $423,775 $1,695,100 $211,888 $10,570,003 CVVSRF :. LOAN FUNDS $8,239,240 $423,775 $1,695,100 $211,888 $10,570,003 NOTE: Augusta- Richmond County will be charged a 2% closing fee of $211,400. EXHIBIT A PAGE 2 OF 3 ACTION DATE Complete Project Planning 2008 Initiated Design 2008 Plans and Specifications submitted to EPD March 1, 2009 Bid Opening January 2010 Notice of Award May 2010 Notice to Proceed with Construction June 2010 Initiation of Construction June 2010 Completion of Construction (TO BE) November 2012 DESCRIPTION OF THE PROJECT PROJECT SCHEDULE Recipient: AUGUSTA - RICHMOND COUNTY Loan Number: CWSRF 09-0 EXHIBIT A PAGE3OF3 DAVID S. COPENHAVER Mayor JOE BOWLES Mayor Pro Tem Ladies and Gentlemen: AUGUSTA LAW DEPARTMENT Matt Aitken ANDREW G. MACKENZIE Corey Johnson GENERAL COUNSEL Joe Bowles Augusta Law Department Alvin Mason Bill Lockett WAYNE BROWN Joe Jackson Senior Staff Attorney Jerry Brigham Wayne Guilfoyle KENNETH S. BRAY J. R. Hatney JODY SMITHERMAN Grady Smith KAYLA COOPER Staff Attorneys FREDERICK L. RUSSELL Administrator OPINION OF BORROWER'S COUNSEL July 10, 2012 CLEAN WATER STATE REVOLVING FUND, ADMINISTERED BY GEORGIA ENVIRONMENTAL FINANCE AUTHORITY 223 Peachtree Street, N.E. Harris tower, Suite 900 Atlanta, Georgia 30303 EXHIBIT E PAGE 1 of 2 A legal opinion of ANDREW G. MACKENZIE OF AUGUSTA LAW DEPARTMENT, was delivered to you, dated JULY 27, 2010 (the "Closing Opinion), relating to the Contract for Financing Environmental Facilities and for Other Services (the "Loan Agreement "), dated AUGUST 6, 2010 between AUGUSTA - RICHMOND COUNTY (the " Borrower ") and the Georgia Environmental Finance Authority (the "Lender "), and the Promissory Note (the "Note "), dated JULY 16, 2010, of the Borrower. As counsel for the Borrower, I have examined the original of the Modification of Promissory Note and Loan Agreement (the "Modification"), between the Borrower and the Lender, the proceedings taken by the Borrower to authorize the Modification, the Closing Opinion, and such other documents, records, and proceedings as I have deemed relevant or material to render this opinion. Based upon such examination, I hereby reconfirm as of the date hereof the opinion contained in the Closing Opinion, subject to the modification that all references to the Note and the Loan Agreement (as defined in the Closing Opinion) shall be deemed to include a reference to the Modification. Nothing has come to my attention, after due investigation, that in any way might question the continuing validity and accuracy of the Closing Opinion, as modified above. 520 Greene Street Augusta, Georgia 30901 (706) 842 -5550 - Fax (706) 842 -5556 Yours very truly, EXHIBIT E PAGE 2 OF 2 Signature /4h& p ret,/ ,� 6 M aci(ekt2? Printed Name Date 7/�0 /2/2 Recipient: AUGUSTA - RICHMOND COUNTY Loan Number: CWSRF 09 -096 At a duly called meeting • the governing body of the Borrower identified above (the "Borrower") held on the r n day of 'Sol , X01 9, , the following resolution was introduced and adopted. y�j1 WHEREAS, the Borrower has borrowed $10,570,003 from the Georgia Environmental Finance Authority (the "Lender"), pursuant to the terms of a Contract for Financing Environmental Facilities and for Other Services (the "Loan Agreement "), dated AUGUST 6, 2010, between the Borrower and the Lender; and WHEREAS, the Borrower's obligation to repay the loan made pursuant to the Loan Agreement is evidenced by a Promissory Note (the "Note "), dated JULY 16, 2010, of the Borrower; and WHEREAS, the Borrower and the Lender have determined to amend and modify the Note and the Loan Agreement, pursuant to the terms of a Modification of Promissory Note and Loan Agreement (the "Modification ") between the Borrower and the Lender, the form of which has been presented to this meeting; Ca-kQ EXTRACT OF MINUTES RESOLUTION OF GOVERNING BODY NOW, THEREFORE, BE IT RESOLVED by the governing body of the Borrower that the form, terms, and conditions and the execution, delivery, and performance of the Modification are hereby approved and authorized. BE IT FURTHER RESOLVED by the governing body of the Borrower that the terms of the Modification are in the best interests of the Borrower, and the governing body of the Borrower designates and authorizes the following persons to execute and deliver, and to attest, respectively, the Modification, and any related documents necessary to the consummation of the transactions contemplated by the Modification. -r2 fek_ (Na of Pers•n t• E ecute ' oc ments) t1 (Titl ) /L►1 . 41__ /11 iL / / *jt 11- (Name of Per • n to Attest Documents) (Tit e T he undersigned further certifies that the above resolution has not been repealed or amended and rematri,N full force :and effect. Datg: /,� , 20 (S EXHIBIT F Nathan Deal Governor Mr. Steve Little Assistant Director Augusta Utilities 360 Bay Street, Suite 180 Augusta, Georgia 30901 GEORGIA ENVIRONMENTAL FINANCE AUTHORITY Re: Augusta- Richmond County CWSRF 09 -096 Dear Mr. Little: August 20, 2012 Enclosed is the executed modification of the loan agreement between Augusta- Richmond County and the Georgia Environmental Finance Authority (GEFA). We are pleased that GEFA is able to assist you in modifying this loan. Sincerely, dL Q,LL Kevin Clark KC:mr Enclosures cc: Mr. Ken Bryan, EPD Ms. Angela Lampkins, EPD Kevin Clark Executive Director 233 PEACHTREE STREET NE • HARRIS TOWER, SUITE 900 • ATLANTA, GEORGIA 30303 -1506 • 404 - 584 -1000 • FAx 404 - 584 -1069 www.gefa.org