HomeMy WebLinkAboutDEVELOPMENT AGREEMENT BETWEEN AUGUSTA GA AND ROCKWOOD PIGMENTS (FOR TAX ALLOCATION DISTRICT NO THREE DOUG BARNARD/DIXON AIRLINE4
EXECUTION COPY
DEVELOPMENT
AGREEMENT
Between Augusta, Georgia
and
Rockwood Pigments NA Inc.
For Tax Allocation District No. Three --
Doug Barnard/Dixon Airline
Final Execution Copy 1/22/13
TABLE OF CONTENTS
Page
ARTICLE I RECITALS 1
ARTICLE II GENERAL TERMS 2
Section 2.1 Definitions 2
Section 2.2 Singular and Plural 6
ARTICLE III REPRESENTATIONS AND WARRANTIES 6
Section 3.1 Representations and Warranties of Developer 6
Section 3.2 Representations and Warranties of Augusta 8
Section 3.3 Payment of Administrative Fee 9
ARTICLE IV DEVELOPMENT AND CONSTRUCTION 9
Section 4.1 Construction and Completion of the TAD Project and the Rockwood
Project 9
Section 4.2 Approvals Required for the Project 10
Section 4.3 Unreasonable Delay or Abandonment; Cessation of Work 10
Section 4.4 Material Modifications 10
Section 4.5 Project Modifications 10
ARTICLE V DUTIES, RESPONSIBILITIES AND SPECIAL COVENANTS OF
DEVELOPER 11
Section 5.1 Completion of the Project 11
Section 5.2 Compliance with Documents 11
Section 5.3 Litigation 11
Section 5.4 Maintenance of the Project 11
Section 5.5 Records and Accounts 11
Section 5.6 Liens and Other Charges 11
Section 5.7 Compliance with Laws, Contracts, Licenses, and Permits 11
Section 5.8 Laborers, Subcontractors and Materialmen 12
Section 5.9 Taxes 12
Section 5.10 Insurance 12
Section 5.11 Further Assurances and Corrective Instruments 12
Section 5.12 Performance by Developer 12
Section 5.13 Restrictions on Easements and Covenants 12
Section 5.14 Access to the Site 12
Section 5.15 Delivery of Documents 13
Section 5.16 Transfer of Title 13
Section 5.17 Compliance With Performance Commitments 13
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ARTICLE VI ADVANCES; DISBURSEMENT; SPECIAL FUND; FINANCING
ALTERNATIVES 13
Section 6.1 Advances 13
Section 6.2 Disbursements 13
Section 6.3 Limited Liability 15
Section 6.4 Special Fund 15
Section 6.5 Alternative Financing 15
ARTICLE VII INDEMNIFICATION 15
Section 7.1 Indemnification 15
Section 7.2 Notice of Claim 15
Section 7.3 Defense 16
Section 7.4 Separate Counsel 16
Section 7.5 Survival 16
ARTICLE VIII DEFAULT 16
Section 8.1 Default by Developer 16
Section 8.2 Remedies 17
Section 8.3 Remedies Cumulative 17
Section 8.4 Agreement to Pay Attorneys' Fees and Expenses 17
Section 8.5 Default by Augusta 17
ARTICLE IX MISCELLANEOUS 17
Section 9.1 Term of Agreement; Survival 17
Section 9.2 Notices 18
Section 9.3 Amendments and Waivers 19
Section 9.4 Invalidity 19
Section 9.5 Successors and Assigns 19
Section 9.6 Schedules; Titles of Articles and Sections 19
Section 9.7 Applicable Law 19
Section 9.8 Entire Agreement 19
Section 9.9 Approval by the Parties 19
Section 9.10 Additional Actions 19
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DEVELOPMENT AGREEMENT
This Development Agreement (this "Agreement "), dated as of the day of February, 2013,
is made by and between Augusta, Georgia, a political subdivision of the State of Georgia ( "Augusta "),
and Rockwood Pigments NA Inc., a Delaware corporation, as Developer. Capitalized terms used herein
and not otherwise defined have the meanings given to them in Article II.
ARTICLE I
RECITALS
WHEREAS, Augusta is duly authorized to exercise the redevelopment powers granted to cities
and counties in the State of Georgia pursuant to the Redevelopment Powers Law and in accordance with
House Bill 773 enacted by the General Assembly in 2006 (2006 GA. LAWS p. 4507, et seq.) and approved
in a referendum on November 6, 2006; and
WHEREAS, by a Resolution duly adopted on December 6, 2011 (the "TAD Resolution "),
following a public hearing as required by law, the Augusta - Richmond County Commission approved the
Doug Barnard/Dixon Airline Redevelopment Plan and created Tax Allocation District Number Three --
Doug Barnard/Dixon Airline (the "Doug Barnard/Dixon Airline TAD "); and
WHEREAS, pursuant to a resolution adopted on December 13, 2011, the School Board gave the
consent required under O.C.G.A. Sec. 36- 44 -8(1); and
WHEREAS, pursuant to the requirements of O.C.G.A. Sec. 36- 44 -10, Augusta received from the
Georgia Department of Revenue, certification dated June 20, 2012 of the tax allocation increment base for
the Doug Barnard/Dixon Airline TAD; and
WHEREAS, the Redevelopment Powers Law provides that Augusta may enter into public - private
partnerships to accomplish the redevelopment projects contemplated in the Redevelopment Plan; and
WHEREAS, the TAD Resolution expressed the intent of Augusta, as set forth in the
Redevelopment Plan, to provide funds to induce and stimulate redevelopment in the Doug Barnard/Dixon
Airline TAD; and
WHEREAS, the undertakings contemplated by the Redevelopment Plan include, among other
renewal activity, development of the "Rockwood Project," a manufacturing facility; and
WHEREAS, Developer is the owner of certain real property located within the Doug
Barnard/Dixon Airline TAD; and
WHEREAS, Developer seeks to undertake the redevelopment of the property into a chemical
manufacturing plant that produces industrial pigments; and
WHEREAS, in order to induce and further facilitate the successful accomplishment of this
portion of the Redevelopment Plan, Augusta has indicated its intent to exercise its authority under the
Redevelopment Powers Law and in accordance with State law to enter into this Development Agreement
with Developer, pursuant to which, subject to the conditions described herein, the Tax Allocation
Increment collected in the Doug Barnard/Dixon Airline TAD will be used to reimburse Developer for
certain Redevelopment Costs advanced by Developer in connection with the TAD Project; and
WHEREAS, Developer agrees, pursuant to the terms of this Agreement, to undertake this critical
revitalization in Augusta and to develop the Rockwood Project consistent with the Doug Barnard/Dixon
Final Execution Copy 1/22/13
Airline Redevelopment Plan, which revitalization would not be economically feasible without the
reimbursements being provided through the Doug Barnard/Dixon Airline TAD as contemplated herein.
AGREEMENT
NOW THEREFORE, Augusta and Developer, for and in consideration of the mutual promises,
covenants, obligations and benefits of this Agreement, hereby agree as follows:
ARTICLE II
GENERAL TERMS
Section 2.1 Definitions. Unless the context clearly requires a different meaning, the following
terms are used herein with the following meanings:
"Act of Bankruptcy" means the making of an assignment for the benefit of creditors, the filing of
a petition in bankruptcy, the petitioning or application to any tribunal for any receiver or any trustee of the
applicable Person or any substantial part of its property, the commencement of any proceeding relating to
the applicable Person under any reorganization, arrangement, readjustments of debt, dissolution or
liquidation law or statute of any jurisdiction, whether now or hereafter in effect, or if, within 60 days after
the filing of a bankruptcy petition or the commencement of any proceeding against the applicable Person
seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any present or future statute, law or regulation, the proceedings have not been dismissed, or,
if, within 60 days after the appointment, without the consent or acquiescence of the applicable Person, of
any trustee, receiver or liquidator of the applicable Person or of the land owned by the applicable Person,
the appointment has not been vacated.
"Administrative Fee" means an annual administrative fee payable to Augusta from the Special
Fund as provided in Section 3.3, to reimburse Augusta for actual and/or imputed administrative costs,
including reasonable charges for the time spent by public employees or agents of Augusta in connection
with the management and accounting of the Special Fund, in an amount not to exceed $5,000 per year.
Such Administrative Fee shall not reduce or otherwise diminish the total Reimbursement Costs payable to
Developer.
"Advances" means advances by Developer or any other Person or entity to pay any costs that
constitute Reimbursement Costs for which Developer may be entitled to reimbursement pursuant to
Section 6.2.
"Affiliate" means, with respect to any Person, (a) a parent, partner, member or owner of such
Person or of any Person identified in clause (b), and (b) any other Person that, directly or indirectly
through one or more intermediaries, controls, is controlled by or is under common control with such
Person. As used in this definition, the term "control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
"Augusta" means Augusta, Georgia, a political subdivision of the State of Georgia.
"Commissioning" means the placing in service of the Rockwood Project and commencement of
normal operations for the production of commercial quantities of industrial pigments, as certified in
writing by the Developer to Augusta.
"Developer" means Rockwood Pigments NA Inc., a Delaware corporation, developer of the
Rockwood Project.
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"Development Team" means Developer and its development partners.
"Disbursements" has the meaning set forth in Section 6.2.
"Doug Barnard/Dixon Airline TAD" means that Tax Allocation District Number Three created
by Augusta effective December 31, 2011, pursuant to the Redevelopment Powers Law and the TAD
Resolution and as further described in the Redevelopment Plan.
"Effective Date" means February 2013, the effective date of this Agreement.
"Environmental Laws" means, including but without limitation, the Resource Conservation and
Recovery Act, 42 U.S.C. §6901 et seq., as amended, the Comprehensive Environmental Response
Compensation and Liability Act of 1980, 42 U.S.C. § 9601 et seq., as amended by the Superfund
Amendments and Reauthorization Act of 1986, and as further amended, the Clean Water Act, 33 U.S.C. §
1251 et seq., as amended, the Clean Air Act, 42 U.S.C. § 7401 et seq., as amended, the Toxic Substances
Control Act, 15 U.S.C. § 2601 et seq., as amended, and any other applicable federal law relating to health,
safety or the environment.
"Environmental Report" means that certain Phase II Environmental Site Assessment dated
December 11, 201 l and prepared by Brown & Caldwell for Developer.
"Force Majeure" means any event or circumstance which is (a) beyond the reasonable control of
the Person whose performance is required by this Agreement and (b) caused by fire, earthquake, flood,
explosion, war, acts of terrorism, invasion, insurrection, mob violence, sabotage, lockouts, litigation,
condemnation, riots or other civil disorder, national or local emergency, acts of God, unusual and
unanticipated delays in transportation, unusual and unanticipated delays in obtaining lawful permits or
consents to which the applicant is legally entitled, strike or labor dispute, severe weather conditions, or
delays caused by Augusta in excess of 30 days in responding to proposals for Material Modifications
pursuant to Section 4.4. Developer will give written notice in accordance with Section 9.2 as soon as
reasonably practical after the start of the Force Majeure event or occurrence giving rise to the delay,
specifically identifying the occurrence or event and the anticipated resulting delay to the TAD Project or
the Rockwood Project, as applicable.
"General Contractor" means an experienced, licensed, bondable and reputable general contractor
selected by Developer and reasonably satisfactory to Augusta.
"Hazardous Substances" means any hazardous or toxic substance or waste as defined by any
applicable Environmental Laws, together with (if not so defined by any such Environmental Laws)
petroleum, petroleum products, oil, PCBs, asbestos, and radon.
"Legal Requirements" means any legal requirements (including, without limitation,
Environmental Laws), including any local, state or federal statute, law, ordinance, rule or regulation, now
or hereafter in effect, or order, judgment, decree, injunction, permit, license, authorization, certificate,
franchise, approval, notice, demand, direction or determination of any governmental authority.
"Loan Documents" means any agreement or instrument, other than this Agreement, to which
Developer or any Affiliate thereof is a party or by which it is bound and that is executed in connection
with any financing provided to or for the benefit of Developer in order to specifically finance all or any
portion of the Rockwood Project or the TAD Project, and including any commitment or application for
such financing and documents evidencing any Project Financing.
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"Material Modification" means a Project Modification that requires the prior written consent of
Augusta, as follows: (i) any delay, or series of delays, in construction of the Rockwood Project of over
200 days cumulative from the construction schedule set forth in the Rockwood Project Construction
Schedule; (ii) any delay, or series of delays in construction of the TAD Project of over 200 days
cumulative from the construction schedule set forth in the TAD Project Construction Schedule; (iii) any
aggregate change in the Rockwood Project Budget resulting in a total Rockwood Project Budget of less
than $100 million; (iv) any change in the description of the Rockwood Project as a plant for the
manufacturing of synthetic iron oxide pigment as set forth in Schedule B -1; or (v) any change in the
design of the Rockwood Project that would result in the hiring of fewer than 80 full -time employees when
the Rockwood Project is operating at full capacity (as calculated based on 24 -hour, 7 days /week
operations).
"Permitted Exceptions" means all of the following: (i) any reasonable and customary exceptions
that serve or enhance the use or utility of the TAD Project or the Rockwood Project arising in the course
of and necessary in connection with the construction, or ultimate operation, of the TAD Project or the
Rockwood Project, including by way of example and not of limitation, easements granted to public utility
companies or governmental bodies (for public rights -of -way or otherwise), (ii) any other exceptions
expressly approved in writing by Augusta; (iii) real property taxes, bonds and assessments (including
assessments for public improvements) not yet due and payable;(iv) inchoate construction liens; and (v)
any exceptions approved by Developer's Project Financing lender.
"Person" includes a corporation, a trust, an association, a partnership (including a limited liability
partnership), a joint venture, an unincorporated organization, a business, an individual or natural person, a
joint stock company, a limited liability company, a public body, or any other entity.
"Plans" means the Site Plan and the construction plans for the TAD Project and the Rockwood
Project as the same may be modified from time to time, including any Material Modifications.
"Project Approvals" means all approvals, consents, waivers, orders, agreements, authorizations,
permits and licenses required under applicable Legal Requirements or under the terms of any restriction,
covenant or easement affecting the TAD Project or the Rockwood Project, as applicable, or otherwise
necessary or desirable for the ownership, acquisition, construction, equipping, use or operation thereof,
whether obtained from a governmental authority or any other person.
"Project Financing" means any Ioans, financing, equity investment, or other agreement (other
than this Agreement) provided to or for the benefit of Developer to finance, directly or indirectly, any
portion of the TAD Project or the Rockwood Project.
"Project Modification" means (i) any change in the Rockwood Project Budget or the TAD Project
Budget; (ii) any delay in or cessation of work on the TAD Project (but not beyond the TAD Project
Completion Date); (iii) any delay in or cessation of work on the Rockwood Project (but not beyond the
Rockwood Project Completion Date); or (iv) any change in the Rockwood Project Description as set forth
in Schedule B -1. Certain Project Modifications are Material Modifications.
"Redevelopment Costs" has the meaning given that term by O.C.G.A. § 36- 44 -3(8) and as used in
this Agreement, means Redevelopment Costs of the TAD Project and any other Redevelopment Costs (as
defined in the Redevelopment Powers Law) contemplated by this Agreement.
"Redevelopment Plan" means the Doug Barnard/Dixon Airline Redevelopment Plan for Augusta
Tax Allocation District Number Three approved by Augusta pursuant to the TAD Resolution on
December 6, 2011, following a public hearing as required by law, as may be amended from time to time.
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"Redevelopment Powers Law" means the Redevelopment Powers Law, O.C.G.A. §36 -44 -1, et
seq., as may be amended from time to time.
"Reimbursement Costs" means the TAD Organizational Cost Payments plus the lesser of (a)
actual expenditures for Redevelopment Costs of the TAD Project; (b) 110% of the TAD Project Budget;
or (c) 10% of the Rockwood Project Costs.
"Requisition" means a requisition in substantially the form attached as Schedule E hereto (or
such other form approved by Augusta).
"Rockwood Project" means the approximately 117- acre industrial redevelopment project, as
more fully described in Schedule B -1 hereto, as such Schedule may be amended or modified from time to
time, and including the TAD Project.
"Rockwood Project Budget" means the projected cost for acquisition, financing, and construction
of the Rockwood Project as set forth in Schedule D -2 hereto, as such Schedule may be amended or
modified from time to time, including any Project Modifications.
"Rockwood Project Completion Date" means September 30, 2015, the anticipated date of
substantial completion of the Rockwood Project.
"Rockwood Project Construction Schedule" means the estimated schedule for construction of the
Rockwood Project as set forth in Schedule C -2, as such Schedule may be amended or modified from time
to time, including any Project Modifications or Material Modifications.
"Rockwood Project Costs" means the total hard and soft costs of development and construction of
the Rockwood Project capitalizable under General Accepted Accounting Principles (GAAP) and as
determined in accordance with Section 4.1(e).
"School Board" means the Board of Education of Richmond County, Georgia.
"Site" means the real property on which the Rockwood Project will be located within the Doug
Barnard/Dixon Airline TAD, as more specifically identified in Schedule A -1 hereto.
"Site Plan" means the plan for development of the Rockwood Project as more specifically
identified in Schedule A -2 hereto.
"Special Fund" means the bank account established by Augusta for the depositing of Tax
Allocation Increment and payment of Disbursements as permitted under this Agreement.
"State" means the State of Georgia.
"TAD Bonds" means tax allocation bonds, notes or other obligations that may be issued by
Augusta to finance the acquisition, construction and equipping of improvements related to the Rockwood
Project and related Redevelopment Costs, secured by all or a defined portion of the Tax Allocation
Increment, as contemplated by and provided in O.C.G.A. § 36 -44- 3(12).
"TAD Organizational Cost Payments" means organizational and professional services costs
incurred by Augusta in connection with creation and implementation of the Doug Barnard/Dixon Airline
TAD that are paid by Developer at the request of and on behalf of Augusta.
"TAD Project" means those improvements identified and more fully described in Schedule B -2
hereto as such Schedule may be amended or modified from time to time, a portion of the costs of which
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are to be advanced by Developer and reimbursed to Developer from the Special Fund as contemplated by
this Agreement.
"TAD Project Budget" means the projected hard and soft costs capitalizable under GAAP for
acquisition, fmancing, and construction of the TAD Project as set forth in Schedule D -1 hereto, as such
Schedule may be amended or modified from time to time, including any Project Modifications.
"TAD Project Completion Date" means June 30, 2014, the anticipated date of substantial
completion of the TAD Project (as evidenced by delivery by Developer to Augusta of the certificate
contemplated in Section 4.1(e)).
"TAD Project Construction Schedule" means the estimated schedule for construction of the TAD
Project as set forth in Schedule C -1, as such Schedule may be amended or modified from time to time,
including any Project Modifications or Material Modifications.
"TAD Resolution" means the Resolution duly adopted by the Augusta - Richmond County
Commission on December 6, 2011, following a public hearing as required by law, pursuant to which
Augusta approved the Redevelopment Plan and created the Doug Barnard/Dixon Airline TAD.
"Tax Allocation Increment" means the positive tax allocation increment (within the meaning of
the Redevelopment Powers Law) levied and collected on real and personal property within the Doug
Barnard/Dixon Airline TAD attributable to the ad valorem millage rate levied annually by Augusta and
the positive tax allocation increment attributable to the School Board's ad valorem millage rate.
"Title Policy" means the title insurance policy issued by a nationally recognized title company
with respect to the Site.
Section 2.2 Singular and Plural. Words used herein in the singular, where the context so
permits, also include the plural and vice versa. The definitions of words in the singular herein also apply
to such words when used in the plural where the context so permits and vice versa.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties of Developer. Developer hereby represents and
warrants to Augusta that:
(a) Organization and Authority. Rockwood Pigments NA Inc., a Delaware corporation, is in
good standing and authorized to transact business. Developer's officers have the requisite power
and authority to execute and deliver this Agreement, to incur and perform its obligations
hereunder, and to carry out the transactions contemplated by this Agreement.
(b) Due Authorization, Execution and Delivery. The execution, delivery, and performance
of this Agreement has been duly authorized by all necessary action and proceedings by or on
behalf of Developer, and no further approvals or filings of any kind, including any approval of or
filing with any governmental authority, are required by or on behalf of Developer as a condition
to the valid execution, delivery, and performance by it of this Agreement. This Agreement, when
duly executed and delivered by each party hereto, will be the valid, binding and enforceable
obligation of Developer in accordance with its terms, subject to matters and laws affecting
creditors' right generally and to general principles of equity.
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(c) Organizational Documents. Developer's organizational documents are in full force and
effect as of the Effective Date, and no fact or circumstance has occurred that, by itself or with the
giving of notice or the passage of time or both, would constitute a default thereunder.
(d) Financial Statements. Developer is a wholly owned and component reporting unit of
Rockwood Holdings, Inc. ( "Parent Corporation ") and does not report or publicly disclose separate
audited or unaudited financial from Parent Corporation. Rockwood Holdings, Inc. is a publicly
traded entity and its financial statements are available from its website or the Securities and
Exchange Commission. To the best of its knowledge, the financial statements of Rockwood
Holdings, Inc. as of September 20, 2012 fairly present the financial condition of Rockwood
Holdings, Inc. as of the date thereof, and are accurate, complete and correct in all material
respects and do not contain any material misstatement of fact or omit to state any fact necessary
to make the statements contained therein not misleading.
(e) Environmental. Developer has no knowledge except as disclosed in the Environmental
Report: (i) of the presence of any Hazardous Substances on the Site, or any portion thereof, or of
any spills, releases, discharges, or disposal of Hazardous Substances that have occurred or are
presently occurring on or onto the Site or any portion thereof, except for materials that may be
Hazardous Substances that are used in the operation of a synthetic iron oxide manufacturing
plant; or (ii) of the presence of any PCB transformers serving, or stored on, the Site, or any
portion thereof, and Developer has no knowledge of any failure to comply with any applicable
Environmental Laws relating to the generation, recycling, reuse, sale, storage, handling, transport
and disposal of any Hazardous Substances.
(f) Bankruptcy. No Act of Bankruptcy has occurred with respect to Developer.
(g) No Litigation. There is no action, suit or proceeding pending or, to the knowledge of
Developer, threatened against or affecting Developer in any court, before any arbitrator or before
or by any governmental body which (i) in any manner raises any question affecting the validity or
enforceability of this Agreement, (ii) could materially and adversely affect the business, financial
position or results of operations of Developer, or (iii) could materially and adversely affect the
ability of Developer to perform its obligations hereunder.
(h) No Undisclosed Liabilities. Developer is not in default under or in breach of any material
contract or agreement, and no event has occurred which, with the passage of time or giving of
notice (or both) would constitute such a default, which has a material adverse effect on the ability
of Developer to perform its obligations under this Agreement.
(i) Tax Matters. Developer (or Parent Corporation) has prepared and filed in a substantially
correct manner all federal, state, local, and foreign tax returns and reports heretofore required to
be filed and has paid all taxes due and payable.
(j) Intentionally omitted.
(k) Principal Office. The address of Developer's principal place of business is 7101
Muirkirk Road, Beltsville, Maryland, 20705 -1333.
(1) Licenses and Permits. Developer will at all appropriate times possess all franchises,
patents, copyrights, trademarks, trade names, licenses and permits, and rights in respect of the
foregoing, adequate for the conduct of its business substantially as now conducted or as it is
intended to be conducted with respect to the Rockwood Project.
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(m) Project Location. The Rockwood Project is located wholly within Augusta and further,
wholly within the boundaries of tax parcels 135 -0- 005 -00 -0 and 146 -0- 005 -00 -0 as such parcels
are identified by the Board of Tax Assessors for Richmond County, Georgia.
(n) Utilities. All utility services necessary and sufficient for the construction and operation
of the Rockwood Project will be obtained when needed and will at all appropriate times be
available through dedicated public rights of way or through perpetual private easements.
(o) Plans. Developer will furnish to Augusta true and complete sets of the Plans. The Plans
so furnished to Augusta will comply with all applicable governmental requirements, all Project
Approvals, and all restrictions, covenants and easements affecting the TAD Project and the
Rockwood Project.
(p) Funding Sources for Project Financing_ Schedule G contains a true, correct, and
completed list of all sources and uses of funds, including all Project Financing, all of which has
been committed to Developer.
(q) Liens. Other than as disclosed in writing to Augusta, there are no material liens of record
of laborers, subcontractors or materialmen on or respecting the TAD Project or the Rockwood
Project on the Effective Date.
(r) Construction Schedules. The TAD Project Construction Schedule is complete and
accurately reflects the currently estimated schedule for construction of the TAD Project. The
Rockwood Project Construction Schedule is complete and accurately reflects the currently
estimated schedule for construction of the Rockwood Project.
(s) Budgets. The TAD Project Budget is complete and accurately reflects the currently
estimated costs of the TAD Project. The Rockwood Project Budget is complete (unless
specifically noted otherwise) and accurately reflects the currently estimated costs of the
Rockwood Project.
(t) Title. As of the Effective Date, Developer holds fee simple title to the Site.
(u) Tax Allocation Increment. Developer acknowledges that Augusta has made no
representation as to the amount of Tax Allocation Increment to be generated by the Rockwood
Project and that Developer has had the opportunity to investigate and make its own conclusions
as to the amount of Tax Allocation Increment to be generated by the Rockwood Project.
Section 3.2 Representations and Warranties of Augusta. Augusta hereby represents and
warrants to Developer that:
(a) Organization and Authority. Augusta is a consolidated government duly created and
existing under the laws of the State. Augusta has the requisite power and authority to execute and
deliver this Agreement, to incur and perform its obligations hereunder, and to carry out the
transactions contemplated by this Agreement.
(b) Due Authorization, Execution and Delivery. The execution, delivery, and performance
of this Agreement has been duly authorized by all necessary action and proceedings by or on
behalf of Augusta, and no further approvals or filings of any kind, including any approval of or
filing with any governmental authority, are required by or on behalf of Augusta as a condition to
the valid execution, delivery, and performance by Augusta of this Agreement. This Agreement,
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when duly executed and delivered by each party hereto, will be the valid, binding and enforceable
obligation of Augusta in accordance with its terms, subject to matters and laws affecting
creditors' right generally as to political bodies and to general principles of equity.
(c) No Litigation. There are no actions, suits, proceedings or investigations of any kind
pending or threatened against Augusta before any court, tribunal or administrative agency or
board or any mediator or arbitrator that questions the validity of this Agreement or any action
taken or to be taken pursuant hereto.
(d) TAD Resolution. The TAD Resolution has been validly adopted, remains in full force
and effect, and has not been amended or supplemented since its date of adoption. No amendment
of or supplement to the TAD Resolution is contemplated by Augusta.
(e) Redevelopment Agent. Augusta has been duly designated as Redevelopment Agent for
the Doug Barnard/Dixon Airline TAD as contemplated by the Redevelopment Powers Law.
( Recitals. The Recitals in Article I of this Agreement relating to actions taken by public
bodies are true and correct.
(g) Redevelopment Plan and TAD. The Redevelopment Plan and the Doug Barnard/Dixon
Airline TAD have been duly adopted by Augusta.
Section 3.3 Payment of Administrative Fee. Developer acknowledges and agrees that the
Administrative Fee will be the first expense deducted from the Special Fund annually on the anniversary
of the Effective Date up to and including the year this Agreement expires. In the event that there are not
sufficient funds in the Special Fund to pay the Administrative Fee, Developer shall have no obligation to
pay to or otherwise advance such fee to Augusta.
ARTICLE IV
DEVELOPMENT AND CONSTRUCTION
Section 4.1 Construction and Completion of the TAD Project and the Rockwood Project.
(a) Developer will use commercially reasonable efforts to develop and construct, or cause
the development and construction of, the TAD Project with diligence and good faith in a good
and workmanlike manner and in substantial conformance with the Plans and the descriptions
thereof set forth in Schedules A -2 and B -2 and in accordance with the TAD Project Construction
Schedule set forth in Schedule C -1, all subject to Force Majeure. Augusta acknowledges that
during the term of this Agreement modifications to the TAD Project as contemplated on the
Effective Date may occur. To the extent that such modifications are material but are not Material
Modifications, Developer will provide a revised version of Schedule B -2 or Schedule C -1, as
appropriate, to Augusta within fifteen (15) business days, which will be used as the basis for
reimbursement of Advances under Section 6.2. To the extent that any such modification is a
Material Modification, Developer will comply with the procedures set forth in Section 4.4.
Augusta agrees to use commercially reasonable efforts to assist Developer with the TAD Project
on the terms set forth in this Agreement to further the public purposes of the Redevelopment Plan
and the Redevelopment Powers Law.
(b) Developer will construct, or cause the construction of, the TAD Project and the
Rockwood Project in accordance with all applicable Legal Requirements.
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(c) Developer will use its commercially reasonable efforts to develop and construct, or cause
the development and construction of, the Rockwood Project with diligence and good faith in a
good and workmanlike manner and in substantial conformance with the Plans and the
descriptions thereof set forth in Schedules A -2 and B -1 and in accordance with the Rockwood
Project Construction Schedule set forth in Schedule C -2, all subject to Force Majeure. Augusta
acknowledges that during the term of this Agreement modifications to the Rockwood Project as
contemplated on the Effective Date may occur. To the extent that such modifications are material
but are not Material Modifications, Developer will provide a revised version of Schedule A -2 or
Schedule C -2, as appropriate, to Augusta within ten (10) business days. To the extent that any
such modification is a Material Modification, Developer will comply with the procedures set
forth in Section 4.4. Augusta agrees to use commercially reasonable efforts to assist Developer
with the Rockwood Project on the terms set forth in this Agreement to further the public purposes
of the Redevelopment Plan and the Redevelopment Powers Law.
(d) Beginning on the Effective Date and continuing until the Rockwood Project Completion
Date, on a bi- monthly basis Developer will provide to Augusta on or before the last business day
of every reporting month a written update on the status and progress of the construction of the
Rockwood Project and the costs and expenses incurred in connection with the Rockwood Project
to date. Said updates shall be provided by Developer in the form of a written report in a format
determined by Rockwood. Additionally, if requested by Augusta, any such bi- monthly update
shall also be given in a telephone conference between the Rockwood Project manager or other
appropriate representative and a representative of Augusta to be designated by the City
Administrator. These reports and telephone conferences shall be in addition to and not as a
substitute for any customary inspections or documents required by Augusta in the usual course of
issuing permits and inspecting construction of the Rockwood Project.
(e) Upon completion of the construction of the Rockwood Project, Developer will provide
Augusta with a fmal cost summary of all costs and expenses associated with the Rockwood
Project, a certification that the Rockwood Project has been completed, and evidence that all
amounts owing to contractors and subcontractors have been paid in full evidenced by customary
affidavits executed by such contractors.
Section 4.2 Approvals Required for the Project. Developer will obtain or cause to be obtained
all necessary Project Approvals for the TAD Project and the Rockwood Project and will comply with all
Legal Requirements of any governmental body regarding the use or condition of the TAD Project and the
Rockwood Project. Developer may, however, contest any such Legal Requirement or Project Approval
by an appropriate proceeding diligently prosecuted. Augusta agrees to process zoning and permit
applications in a prompt and timely manner in accordance with its normal rules and procedures.
Section 4.3 Unreasonable Delay or Abandonment; Cessation of Work. If Augusta determines
in its reasonable discretion that (i) the TAD Project is delayed for reasons other than Force Majeure or
market forces such that the TAD Project will not be completed within 365 days of the TAD Project
Completion Date, as amended; or (ii) the Rockwood Project is delayed for reasons other than Force
Majeure or market forces such that the Rockwood Project will not be completed within 365 days of the
Rockwood Project Completion Date, as amended, then Augusta may terminate this Agreement. Prior to
any such termination, Augusta must give 60 days advance written notice to Developer and Developer
must have failed to effect a cure within said 60 -day notice period. Upon termination of this Agreement as
provided in this Section, none of the parties hereto will have any further rights, duties or obligations
hereunder.
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Section 4.4 Material Modifications. Prior to Developer making a Material Modification to the
TAD Project or the Rockwood Project, Developer will submit the proposed modifications to the City
Administrator in writing for review. Any such submission must clearly identify all changes, omissions
and additions as compared to the previously approved description of the TAD Project or the Rockwood
Project, as applicable. The City Administrator, as soon as reasonably possible, will put the request for
modification on a meeting agenda for Augusta's consideration. Augusta will act on the requested
modification within an amount of time that is reasonably required to consider the request. In addition, to
the extent any Material Modification requires an amendment to any portion of the Redevelopment Plan,
Augusta will have such amount of time as reasonably required to pursue any such amendment (including
required approvals, if any).
ARTICLE V
DUTIES, RESPONSIBILITIES AND SPECIAL COVENANTS OF DEVELOPER
Section 5.1 Completion of the Project. Subject to any delays for Force Majeure,
notwithstanding any other provision of this Agreement Developer will commence and complete
construction of the TAD Project and the Rockwood Project substantially in accordance with Schedules C-
1 and C -2 with diligence and in a good and workmanlike manner, free and clear of all liens and claims for
materials supplied or for labor or services performed, or prohibited elsewhere that violate this Agreement
(except inchoate construction liens) subject to any lawful protest in accordance with Section 5.6.
Section 5.2 Compliance with Documents. Prior to its compliance with the Performance
Commitments set forth in Schedule I, Developer will remain in compliance with its obligations and
covenants in the Loan Documents, if any, pursuant to which amounts were loaned or otherwise made
available to Developer to finance construction of the TAD Project and the Rockwood Project.
Section 5.3 Litigation. Developer will notify Augusta in writing, within fifteen (15) business
days of its having knowledge thereof, of any actual or pending litigation or adversarial proceeding in
which a claim is made against Developer or against the Site, the TAD Project, or the Rockwood Project,
in any case which Developer reasonably considers may impair Developer's ability to perform its
obligations under this Agreement, and of any judgment rendered against Developer in any such litigation
or proceeding. Prior to the expiration of the Performance Commitments set forth in Schedule I,
Developer will notify Augusta in writing and within fifteen (15) business days of any matter that
Developer reasonably considers may result or does result in a material adverse change in the financial
condition of Developer or in the financial condition or operation of the TAD Project or the Rockwood
Project.
Section 5.4 Maintenance of the Project. Developer agrees that, to the extent it has an interest
in the Rockwood Project, it will at its own expense (i) keep the Rockwood Project, or cause the
Rockwood Project to be kept, in as reasonably safe condition in accordance with applicable Legal
Requirements as its operations permit, and (ii) keep the Rockwood Project in good repair and in good
operating condition. Subsequent to Commissioning, Developer, at its own expense and from time to time,
may make any additions, modifications or improvements to the Rockwood Project that it may deem
desirable for its business purposes.
Section 5.5 Records and Accounts. Developer will keep true and accurate records and books of
account in connection with the TAD Project and the Rockwood Project in which full, true and correct
entries will be made on a consistent basis, in accordance with GAAP in all material aspects.
Section 5.6 Liens and Other Charges. Developer will duly pay and discharge, or cause to be
paid and discharged, before the same become overdue all claims for labor, materials, or supplies that if
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unpaid might by law become a lien or charge upon the TAD Project or the Rockwood Project unless
Developer is lawfully protesting the same, in which case Developer will provide a suitable "mechanics
lien bond" to discharge such lien from the TAD Project and the Rockwood Project.
Section 5.7 Compliance with Laws, Contracts, Licenses, and Permits. Developer will comply
in all material respects with (a) all applicable laws related to the TAD Project and the Rockwood Project,
(b) all agreements and instruments related to or regarding the TAD Project or the Rockwood Project by
which it may be bound, (c) all restrictions, covenants and easements affecting the TAD Project and the
Rockwood Project, (d) all applicable decrees, orders and judgments related to or regarding the TAD
Project and the Rockwood Project, and (e) all licenses and permits required by applicable laws and
regulations for the ownership, use, or operation of the TAD Project and the Rockwood Project.
Section 5.8 Laborers, Subcontractors and Materialmen. On or before the end of each calendar
quarter prior to the Rockwood Project Completion Date, Developer will furnish to Augusta, upon written
request, either a) affidavits listing all laborers, subcontractors, materialmen, and any other Persons who
might or could claim statutory or common law liens and are furnishing or have furnished labor or material
to the TAD Project and the Rockwood Project or any part thereof, together with affidavits, or other
evidence satisfactory to Augusta, showing that such parties have been paid all amounts then due for labor
and materials furnished to the TAD Project or the Rockwood Project, or b) the completed AIA Form G-
702 Application and Certificate for Payment provided to Developer by its architect. Upon certification of
completion of the TAD Project and the Rockwood Project, Developer shall furnish to Augusta final lien
waivers from the General Contractor and all subcontractors and materialmen who provided goods or
services in excess of $5,000.00 to said projects. Affidavits and other materials submitted pursuant to this
section shall be deemed approved by Augusta if Developer does not receive written disapproval from
Augusta within. thirty (30) days from the submission thereof.
Section 5.9 Taxes. To the extent of its interest therein, Developer will pay when due all taxes
imposed upon or assessed against the Site, the Rockwood Project, and the TAD Project, or upon the
revenues, rents, issues, income and profits of the Rockwood Project and the TAD Project, or arising in
respect of the occupancy, use or possession thereof, and will provide to Augusta, within ten days after a
written request therefor, validated receipts showing the payment of such taxes when due. Developer will
have the right to appeal an assessment for ad valorem tax purposes.
Section 5.10 Insurance. To the extent of its interest therein, Developer, or its Affiliates, will
keep the TAD Project and the Rockwood Project continuously insured consistent with its normal
operating policies and subject to its customary deductibles and limitations, but Developer may at any time
elect to be self - insured. Any such insurance maybe provided through blanket insurance policies covering
one or more facilities owned or operated by Developer and through any combination of underlying and
umbrella policies as Developer may select.
Section 5.11 Further Assurances and Corrective Instruments. Augusta and Developer agree that
they will, from time to time, execute, acknowledge and deliver, or cause to be executed, acknowledged
and delivered, such supplements and amendments hereto and such further instruments as may reasonably
be required for carrying out the intention or facilitating the performance of this Agreement; provided that
the rights of Augusta and Developer hereunder and the ability of Developer to construct the TAD Project
and the Rockwood Project are not impaired thereby.
Section 5.12 Performance by Developer. Developer will perform all acts to be performed by it
hereunder and will refrain from taking or omitting to take any action that would materially violate
Developer's representations and warranties hereunder or render the same materially inaccurate as of the
Effective Date and subsequent Requisition dates.
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tt
Section 5.13 Restrictions on Easements and Covenants. Except for Permitted Exceptions,
Developer will not create or suffer to be created or to exist any easement, right of way, restriction,
covenant, condition, license or other right in favor of any Person which adversely affect or might
adversely affect the use and occupancy of the TAD Project or the Rockwood Project, or any part thereof,
without obtaining the prior approval of Augusta (such approval not to be unreasonably withheld), other
than easements and rights of ways customary for utilities which relate to the use of the TAD Project or the
Rockwood Project for the intended purposes or for access to the adjoining property owned by the
Development Authority of Richmond County.
Section 5.14 Access to the Site. Prior to Commissioning, upon a minimum of three (3) days
notice from Augusta, Developer will permit persons designated by Augusta to access the Site and to
discuss the progress and status of the TAD Project and the Rockwood Project with representatives of
Developer, all in such detail and at such times as Augusta may reasonably request. All such access must
be during normal business hours and in a manner that will not unreasonably interfere with construction
activities of the TAD Project or the Rockwood Project or with Developer's business operations generally.
Augusta must be accompanied by a representative of Developer during any access contemplated by this
Section.
Section 5.15 Delivery of Documents. No later than five (5) business days prior to the Effective
Date, Developer shall deliver to Augusta the following:
(a) Most recent plat of the Site;
(b) Environmental Report;
(c) Title Policy, including any Permitted Exceptions;
(d) Corporate Resolutions authorizing Developer to enter into this Agreement (see Section
3.1(b)); and
(e) Certification of the good standing of Developer from the Georgia Secretary of State.
On the Effective Date, and if applicable, Developer shall deliver to Augusta information (but not
copies of loan documents) evidencing that Developer has obtained Project Financing.
Section 5.16 Transfer of Title. Without the prior written consent of Augusta, for twenty -one
(21) years after the Effective Date Developer agrees not to transfer title to the Site or the Rockwood
Project to any governmental or nonprofit entity (other than with respect to easements or rights of way
customary for utilities), the result of which would render the Site or the Rockwood Project partially or
wholly exempt from ad valorem property taxes.
Section 5.17 Compliance with Performance Commitments. Developer expects and intends to
comply with certain commitments regarding job creation and capital investment as set forth in Schedule I;
however, failure to meet the job creation and investment criteria set forth therein shall not constitute a
Default under this Agreement.
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s
ARTICLE VI
ADVANCES; DISBURSEMENT; SPECIAL FUND; FINANCING ALTERNATIVES
Section 6.1 Advances.
(a) Developer, in its sole discretion as to timing and amount, may make or cause to be made
Advances in connection with the TAD Project.
(b) Developer may submit Requisitions to Augusta for its review and approval for
reimbursement for any such Advances and TAD Organizational Cost Payments in accordance
with Section 6.2.
Section 6.2 Disbursements. Subject to substantial compliance by Developer with all of the
material terms and conditions of this Agreement, the funds deposited into the Special Fund, less the
Administrative Fee, will be available for disbursement to Developer for reimbursement of Advances at
such times and in such amounts as determined (each a "Disbursement ") in accordance with the following
procedures:
(a) Upon Commissioning and delivery of the certification required by Section 4.1(e),
Developer will submit a Requisition to Augusta. The Requisition will include (i) the TAD
Project Budget and (ii) the Rockwood Project Costs. The accuracy of the cost breakdown in the
Requisition must be certified by Developer, and hard construction costs must be certified by the
General Contractor. The amount of the Requisition shall not exceed the Reimbursement Costs.
(b) The Requisition must be accompanied by evidence reasonably satisfactory to Augusta
showing:
(i) Copies of all bills or statements or canceled checks for any indirect or non-
construction expense for which the Disbursement is requested (other than land valuation
as set forth on Schedule D);
(ii) If the Requisition includes amounts to be paid to any contractor, a contractor's
application for payment showing the amount paid by Developer with respect to each such
line item and copies of all bills or statements or canceled checks for expenses incurred by
Developer for which the Disbursement is requested and a copy of a satisfactory "Interim
Waiver and Release upon Payment" pursuant to O.C.G.A. § 44 -14 -366 from the General
Contractor which received payment from the proceeds of the immediately preceding
Requisition;
(iii) That all construction has been conducted substantially in accordance with the
Plans (and all changes thereto approved by Augusta or otherwise permitted pursuant to
the terms hereof); and
(iv) That there are no liens outstanding against the TAD Project or the Rockwood
Project that are in violation of this Agreement.
(c) The construction for which Reimbursement Costs are included in any Requisition must
be reviewed and approved by Augusta or its appointed consultant to verify the approval of the
construction, the cost of completed construction, and compliance with this Agreement.
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(d) So long as there is any unreimbursed balance with respect to the Requisition, on the first
business day of each calendar quarter Augusta will direct that available funds in the Special Fund
be promptly disbursed in order to satisfy these outstanding amounts. Payments will be applied
first to Advances and thereafter to TAD Organizational Cost Payments.
(e) Notwithstanding anything to the contrary herein, in no event will Tax Allocation
Increment applicable to periods beyond seventeen (17) years after Commissioning be used to
satisfy outstanding balances due Developer, if any. Disbursements due Developer under this
Agreement will terminate upon the earlier to occur of (i) the satisfaction of all amounts due
Developer including the aggregate of all Requisitions in an amount not to exceed Reimbursement
Costs or (ii) seventeen (17) years after Commissioning. Provided however, if all Disbursements
due Developer have not been satisfied within seventeen (17) years after Commissioning, then in
such event, one additional Disbursement equal to the amount of the total Administrative Fee paid
to Augusta shall be paid to Developer in the eighteenth (18 year after Commissioning.
Section 6.3 Limited Liability.
(a) The payment of all Disbursements required by be paid by Augusta under this Agreement
shall be special or limited obligations of Augusta payable only from the Special Fund. Augusta
will have no liability to honor any Requisition except from amounts on deposit in the Special
Fund.
(b) To the extent permitted by State law, no director, officer, employee or agent of Augusta
will be personally responsible for any liability arising under or growing out of the Agreement.
(c) Augusta will not be obligated to disburse any funds to any person under this Agreement
other than as directed by Developer or as otherwise permitted under this Agreement.
Section 6.4 Special Fund. Augusta will deposit the Tax Allocation Increment into the Special
Fund as property tax payments are received. Augusta will withdraw the Administrative Fee from the
Special Fund in accordance with Section 3.3.
Section 6.5 Alternative Financing. Nothing in this Agreement will limit the right of Augusta
and Developer to consider alternative methods of financing or refinancing Reimbursement Costs,
including, without limitation, the issuance of TAD Bonds, so long as such financing does not have a
detrimental effect on the TAD Project or the Rockwood Project. In lieu of reimbursement from the
Special Fund pursuant to Requisitions as contemplated herein, Augusta, with the consent of Developer
may choose to issue TAD Bonds to finance all or a portion of the TAD Project contemplated herein. If
Augusta and Developer agree to issue TAD Bonds, Developer will cooperate and assist Augusta in this
regard and comply with any conditions precedent established by Augusta, including, without limitation,
any additional customary covenants and representations associated with issuance of TAD Bonds. If TAD
Bonds are issued and proceeds thereof are paid to Developer in an amount sufficient to pay the unpaid
Reimbursement Costs and the proceeds of any such TAD Bonds paid to Developer together with the
principal sum paid by the Reimbursements contemplated herein are not less than the amounts
contemplated in Section 6.2(e) of this Agreement, this Agreement will terminate. The foregoing
notwithstanding, TAD Bonds shall not be issued without the advance written consent of Developer.
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ARTICLE VII
INDEMNIFICATION
Section 7.1 Indemnification. Developer will defend, indemnify, and hold Augusta and its
agents, employees, officers, and legal representatives (collectively, the "Indemnified Persons ") harmless
for all claims, causes of action, liabilities, fines, and expenses (including, without limitation, reasonable
attorneys' fees, court costs, and all other defense costs and interest) (collectively, the "Losses ") for injury,
death, damage, or loss to persons or property sustained in connection with or incidental to the
construction of the TAD Project and the Rockwood Project. Notwithstanding anything to the contrary in
this Article, (1) Developer's indemnification obligation under this Article is limited to the greater of
$3, 000, 000.00 or the policy limits available under the insurance policies required under Section 5.10; (2)
Developer will not be obligated to indemnify any Indemnified Person for the Indemnified Person's own
negligence, recklessness or intentional act or omission; and (3) Developer will not be obligated to
indemnify any Indemnified Persons to the extent that any claims that might otherwise be subject to
indemnification hereunder resulted, in whole or in part, from the gross negligence, recklessness or
intentional act or omission of any other Indemnified Person or Persons.
Section 7.2 Notice of Claim. If an Indemnified Person receives notice of any claim or
circumstance which could give rise to indemnified Losses, the receiving party must give written notice to
Developer within ten (10) business days. The notice must include a description of the indemnification
event in reasonable detail, the basis on which indemnification may be due, and the anticipated amount of
the indemnified Losses. If an Indemnified Person does not provide this notice within the ten- business-
day period, it does not waive any right to indemnification except to the extent that Developer is
prejudiced, suffers loss, or incurs expense because of the delay.
Section 7.3 Defense. Developer may assume and control the defense of the claim based on the
indemnified Losses at its own expense with counsel chosen by Developer with the concurrence of the
Indemnified Person. In such case, Developer will also control any negotiations to settle the claim.
Within ten (10) business days after receiving written notice of the indemnification request, Developer will
advise the Indemnified Person as to whether or not it will defend the claim. If Developer does not assume
the defense, the Indemnified Person will assume and control the defense and all defense expenses actually
incurred by it will constitute Losses.
Section 7.4 Separate Counsel. If Developer elects to defend a claim, the Indemnified Person
may retain separate counsel, at the sole cost and expense of such Indemnified Person, to participate in
(but not control or impair) the defense and to participate in (but not control or impair) any settlement
negotiations. Developer may settle the claim without the consent or agreement of the Indemnified
Person, unless the settlement (i) would result in injunctive relief or other equitable remedies or otherwise
require the Indemnified Person to comply with restrictions or limitations that materially and adversely
affect the Indemnified Person, (ii) would require the Indemnified Person to pay amounts that Developer
does not fund in full, or (iii) would not result in the Indemnified Person's full and complete release from
all liability to the plaintiffs or claimants who are parties to or otherwise bound by the settlement.
Section 7.5 Survival. The provisions of Article VII will remain in effect until the expiration of
four (4) years after certification of completion of the Rockwood Project.
Section 8.1 Default by Developer.
ARTICLE VIII
DEFAULT
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(a) The following will constitute a "Default" by Developer:
(i) Failure of Developer to materially and timely comply with and perform any of its
covenants, conditions or obligations set forth in this Agreement;
(ii) Prior to Developer's compliance with the Performance Commitments set forth in
Schedule I, the declaration of an "event of default" by any lender under any Loan
Documents, if any, with respect to Project Financing or a breach of Section 5.2;
(iii) An Act of Bankruptcy of Developer;
(iv) Any material representation or warranty made by Developer in this Agreement or
subsequently made by it in any written statement or document furnished to Augusta and
related to the transactions contemplated by this Agreement is false, inaccurate or
fraudulent in any material respect as of the date such representation or warranty is made;
(v) Any material report, certificate or other document or instrument furnished to
Augusta by Developer in relation to the transactions contemplated by this Agreement is
false, inaccurate or misleading in any material respect; or if any report, certificate or other
document furnished to Augusta on behalf of Developer, to the extent that Developer
knows such document is false, inaccurate or misleading and fails to promptly report such
discrepancy to Augusta; and
(vi) Any failure by Developer to comply with Section 5.16 of this Agreement.
Section 8.2 Remedies. If a Default by Developer occurs and is continuing 30 days after receipt
of written notice to Developer from Augusta specifying the existence of such Default (or within a
reasonable time thereafter if such Default cannot reasonably be cured within such 30 -day period and
Developer begins to diligently pursue the cure of such Default within such 30 -day period), the Default
will become an "Event of Default," and Augusta will be entitled to elect any or all of the following
remedies: (i) terminate this Agreement and discontinue further funding hereunder, (ii) seek any remedy at
law or in equity that may be available as a consequence of Developer's default; (iii) pursue specific
performance of this Agreement or injunctive relief; or (iv) waive such Event of Default. Upon
termination of this Agreement as provided in this Section, none of the parties hereto will have any further
rights, duties or obligations hereunder.
Section 8.3 Remedies Cumulative. Except as otherwise specifically provided, all remedies of
the parties provided for herein are cumulative and will be in addition to any and all other rights and
remedies provided for or available hereunder, at law or in equity.
Section 8.4 Agreement to Pay Attorneys' Fees and Expenses. In the event of an Event of
Default by Developer, if Augusta employs attorneys or incurs other expenses for the collection of
amounts due hereunder or for the enforcement of the performance or observance of any covenants or
agreements on the part of Developer contained herein, Developer agrees that it will on demand therefor
pay to Augusta, as applicable, the reasonable fees of such attorneys and such other reasonable expenses so
incurred by Augusta, the amount of such fees of attorneys to be without regard to any statutory
presumption.
Section 8.5 Default by Augusta. The following will constitute a "Default" by Augusta: Any
material breach by it of any representation made in this Agreement or any material failure by it to observe
and perform any covenant, condition or agreement on its part to be observed or performed hereunder, for
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a period of 30 days after written notice specifying such breach or failure and requesting that it be
remedied, given to it by Developer; provided that in the event such breach or failure can be corrected but
cannot be corrected within said 30 -day period, the same will not constitute a default hereunder if
corrective action is instituted by the defaulting party or on behalf of the defaulting party within said 30-
day period and is being diligently pursued.
Section 8.6 Remedies Against Augusta. Upon the occurrence and continuance of a Default
by Augusta hereunder, Developer may seek any remedies available at law or in equity and may assert a
claim for attorneys fees, reasonable expenses and actual costs.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Term of Agreement; Survival. This Agreement will commence on the Effective
Date and will expire on the earlier to occur of the date on which all Reimbursement Costs have been fully
reimbursed to Developer from the Special Fund or seventeen (17) years after Commissioning; provided,
however, that Developer's obligation under Section 5.16 shall continue until the expiration of twenty -one
(21) years after the Effective Date.
Section 9.2 Notices. Any notice sent under this Agreement (except as otherwise expressly
required) must be written and mailed or sent by overnight courier or personally delivered to an officer of
the receiving party at the following addresses:
If to Developer:
Rockwood Pigments, NA, Inc.
7101 Muirkirk Road
Beltsville, MD 20705
Attention: David G. Cohen, Vice President - Finance
and
Rockwood Specialties, Inc., a subsidiary of Rockwood Holdings, Inc.
100 Overlook Center
Princeton, NJ 08540
Attention: Michael W. Valente, General Counsel
With a copy to:
Daniel M. McRae, Esq.
Seyfarth Shaw LLP
1075 Peachtree St, NE Ste 2500
Atlanta, GA 30309
If to Augusta:
City Administrator
530 Greene Street
Suite 801
Augusta, GA 30901
and
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General Counsel
530 Greene Street
Augusta, GA 30901
With a copy to:
MCKENNA LONG & ALDRIDGE LLP
303 Peachtree Street, Suite 5300
Atlanta, GA 30308
Attention: Sharon A. Gay, Esq.
Each party may change its address by written notice in accordance with this Section. Any communication
addressed and mailed in accordance with this Section will be deemed to be given when so mailed, and
any communication so delivered in person will be deemed to be given when receipted for by, or actually
received by the party identified above.
Section 9.3 Amendments and Waivers. Any provision of this Agreement may be amended or
waived if such amendment or waiver is in writing and is signed by the parties hereto. No course of
dealing on the part of any party to this Agreement, nor any failure or delay by any party to this Agreement
with respect to exercising any right, power or privilege hereunder will operate as a waiver thereof.
Section 9.4 Invalidity. In the event that any provision of this Agreement is held unenforceable
in any respect, such unenforceability will not affect any other provision of this Agreement.
Section 9.5 Successors and Assigns. Prior to Commissioning, Developer may not assign this
Agreement or any of its rights hereunder or any interest herein without the prior written consent of
Augusta, which consent may not be unreasonably withheld, conditioned or delayed; provided that
Developer may, without the prior consent of Augusta, assign this Agreement and all or any portion of its
rights hereunder and interests herein (i) to any Affiliate of it or to any entity which controls, is controlled
by or under common control with it; (ii) to any purchaser of no more than 40% of the Rockwood Project
or of all or substantially all of the assets or stock of Developer; or (iii) to any lender providing fmancing
for all or any part of the Rockwood Project. After Commissioning, Developer may assign this Agreement
and all or any portion of its rights hereunder and interests herein. Developer will provide written notice to
Augusta of any assignment. Upon any such assignment of the obligations of Developer hereunder,
Developer will be deemed released from such obligations. Notwithstanding the above, Developer may
collaterally assign this Agreement and its rights hereunder and interest herein, without the consent of
Augusta, to a lender to secure any acquisition, development, construction, or permanent loan for the TAD
Project or the Rockwood Project.
Section 9.6 Schedules; Titles of Articles and Sections. The Schedules attached to this
Agreement are incorporated herein and will be considered a part of this Agreement for the purposes stated
herein, except that in the event of any conflict between any of the provisions of such Schedules and the
provisions of this Agreement, the provisions of this Agreement will prevail. All titles or headings are
only for the convenience of the parties and may not be construed to have any effect or meaning as to the
agreement between the parties hereto. Any reference herein to a Section or subsection will be considered
a reference to such Section or subsection of this Agreement unless otherwise stated. Any reference herein
to a Schedule will be considered a reference to the applicable Schedule attached hereto unless otherwise
stated.
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Section 9.7 Applicable Law. This Agreement is a contract made under and will be construed in
accordance with and governed by the laws of the United States of America and the State of Georgia.
Venue shall be in Augusta.
Section 9.8 Entire Agreement. This written agreement represents the final agreement between
the parties and may not be contradicted by evidence of prior, contemporaneous, or subsequent oral
agreements of the parties. There are no unwritten oral agreements between the parties.
Section 9.9 Approval by the Parties. Whenever this Agreement requires or permits approval or
consent to be hereafter given by any of the parties, the parties agree that such approval or consent may not
be unreasonably withheld, conditioned or delayed, and will be deemed given if no written objection is
delivered to the requesting party within ten (10) business days after delivery of the request to the
approving party.
Section 9.10 Additional Actions. The parties agree to take such actions, including the execution
and delivery of such documents, instruments, petitions and certifications as may be necessary or
appropriate, from time to time, to carry out the terms, provisions and intent of this Agreement and to aid
and assist each other in carrying out said terms, provisions and intent.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be duly executed as
of the day and year first written above.
(Signatures on following pages)
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AUGUSTA, GEORGIA
By:
Its:
(Signatures continued on next page)
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ROCKWOOD PIGMENTS NA INC.
By:
Its:
Attest:
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SCHEDULES
A A -1 Site Description
A -2 Site Plan
B B -1 Rockwood Project Description
B -2 TAD Project Description
C C -1 TAD Project Construction Schedule
C -2 Rockwood Project Construction Schedule
D D -1 TAD Project Budget
D -2 Rockwood Project Budget
E Form of Requisition
F Intentionally Omitted
G Source and Uses Statement
H Intentionally Omitted
I Performance Commitments
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Schedule A -1
SITE DESCRIPTION
ALL THAT PIECE, PARCEL OR LOT OF LAND, WITH IMPROVEMENTS THEREON, IF
ANY, LYING AND BEING IN THE STATE OF GEORGIA, COUNTY OF RICHMOND,
BEING KNOWN AS TRACT A -1 — 73.78 ACRES AS SHOWN ON THAT CERTAIN FIAT
PREPARED BY WRIGHT C. POWERS, JR. GEORGIA R.L.S. NO. 2162, DATED
NOVEMBER 15, 2011, AND RECORDED IN THE OWICE OF THE CLERK OF THE
SUPERIOR COURT OF RICHMOND COUNTY, GEORGIA IN PLAT BOOK 8, PAGE 4.
ALL THAT PIECE, PARCEL OR LOT OF LAND, WITH IMPROVEMENTS THEREON, IF
ANY, LYING AND BEING IN THE STATE OF GEORGIA, COUNTY OF RICHMOND,
BEING KNOWN AS TRACT "A ", "B ", "Cl ", "C2" AND "D ", CONSISTING OF 52.84
ACRES, MORE OR LESS, AS IS MORE PARTICULARLY SHOWN ON A PLAT OF
BOUNDARY SURVEY THEREOF PREPARED BY WILLIAM F. TODD, JR., RLS #2506,
SOUTHERN PARTNERS, INC., FOR RENEGADE, LLC, DATED SEPTEMBER 19, 2003,
AND IN PLAT CABINET C SLIDE 90, #E, IN THE OFFICE OF THE CLERK OF THE
SUPERIOR COURT OF RICHMOND COUNTY, GEORGIA;
LESS AND EXCEPT; THAT CERTAIN 9.01 ACRES CONVEYED FROM GRANTOR
HEREIN TO PENSKE TRUCK LEASING CO., L.P. A DELAWARE LIMITED
PARTNERSHIP, THAT CERTAIN WARRANTY DEED DATED AUGUST 17, 2006, .
RECORDED WITH THE CLERK OF SUPERIOR COURT OF , RICHMOND COUNTY, .
GEORGIA IN DEED BOOK 1073, PAGE 306, ET SEQ. REFERENCE BEING MADE TO
SAID PLAT FOR A MORE COMPLETE AND ACCURATE DESCRIPTION OF THE
METES, BOUNDS, COURSES AND DISTANCES OF THE PROPERTY DESCRIBED
ABOVE.
Schedule B- 1
ROCKWOOD PROJECT DESCRIPTION
Synthetic iron oxide manufacturing plant including warehouse, maintenance, office and
laboratory facilities encompassing approximately 32 acres of developed site on 117 acres of land.
Schedule B -2
TAD PROJECT DESCRIPTION
The TAD Project consists of the following development - related activities:
• Land acquisition
• Site Work
o Removal of all unsuitable soils from the Site and replacement with soil
suitable to support the proposed development;
o Grading of the Site and installation of necessary roadways, sidewalks, street
lights, water, sanitary sewer, storm sewer and other utility systems;
• Construction costs of preparing the site for vertical development, such as pilings and
foundations.
• Legal fees related to the TAD; and architectural, engineering, general contractor
overhead and fees, and other professional fees including consulting and real estate
management fees related to planning and implementing the TAD Project.
Schedule C -1
TAD PROJECT CONSTRUCTION SCHEDULE
(estimated)
Activity Date
Begin Site Preparation March, 2012
Complete Site Preparation January 30, 2014
Begin Pre - vertical construction February 1, 2014
Completion of Pre - vertical construction June 30, 2014
Schedule C- 2
ROCKWOOD PROJECT CONSTRUCTION SCHEDULE
(estimated)
Activity Date
Begin Site Preparation March, 2012
Complete Site Preparation January 30, 2014
Begin Pre - vertical construction February 1, 2014
Completion of Pre - vertical construction June 30, 2014
Begin Mechanical construction July 1, 2014
Completion of Mechanical construction June 30, 2015
Plant Commissioning September 30, 2015
Land Acquisition
$2.0M
Site work / Foundation (i.e. grading, lagoon
excavation, piling, storm water drainage,
roadways, fencing, foundation mats, pier
foundations, tank pads, footings, equipment
pads, landscaping)
$4.8M
Infrastructure (installation of water and sewer,
access roads)
$2.5M
Construction Services, Architectural,
Engineering and Civil Design (pre - vertical)
$2.6M
Environmental and permitting
$1.0M
Total
$12.9M
Schedule D -1
TAD PROJECT BUDGET
Note: Amounts may be adjusted within each category. The total budget may be adjusted in
accordance with the terms of this agreement.
Land Acquisition
$2.0M
Site work / Foundation (i.e. grading, lagoon
excavation, piling, storm water drainage,
roadways, fencing, foundation mats, pier
foundations, tank pads, footings, equipment
pads, [includes purchase of estimated 28,000
yards of concrete], landscaping)
$4.8M
Infrastructure (installation of water and sewer,
access roads)
$2.5M
Construction Services, Architectural,
Engineering and Civil Design (pre - vertical)
$2.6M
Environmental and permitting
$1.0M
Total
$12.9M
Engineering (Construction Services,
Architectural, Engineering and Civil Design
fees)
3
Civil / Structural (Buildings)
25
Equipment
51
Installation
23
Other costs (
Total
102 M
Pre - Vertical:
Post Vertical Construction:
Total Project Cost (estimated):
Schedule D -2
ROCKWOOD PROJECT BUDGET
(includes pre - vertical construction)
(estimated)
$115,000,000.00
Requisition
No.
Date
Approved
Amount of
Requisition
Amounts
Paid to Date
Balance
Unpaid
Total
Amount Due
SCHEDULE E
FORM OF REQUISITION
DOUG BARNARD/DIXON AIRLINE TAX ALLOCATION DISTRICT
Requisition No.
Date of Requisition: _ , 20
TO:
Attention:
Facsimile.
PROJECT:
TAD Project
DEVELOPER:
Rockwood Pigments NA Inc.
Application is made for payment of amounts on deposit in the Special Fund to pay for Reimbursement
Costs in the amount, for the purposes and on the terms set forth below, all in accordance with the
provisions of that certain Development Agreement between Augusta and the Developer named above,
dated as of , 2012. All capitalized terms used herein not otherwise defined shall have
the meaning given them in the Development Agreement.
As of the date of this Requisition No. _ , outstanding Requisition amounts and accrued interest thereon
is $ (the "Outstanding Balance ") as detailed below:
AIA Form G -702 and its Continuation Sheet, AIA Document G -703, are attached as Exhibit A and are
made a part of this Requisition. Architect's and Contractor's Certificates for Payment are attached as part
of the attached ALA. Form G -702.
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1. The TAD Project Budget is $ and the TAD Project costs, Schedule of
Values and Percentages of Completion are as set forth on Forms G -702 and G -703
attached.
2. Total amount requested: $
3. Attached hereto as Exhibit B are:
(a) Copies of all bills or statements or cancelled checks for any indirect or
soft -cost expense for which this Requisition is requested;
(b) Copies of all bills or statements or cancelled checks for any such hard
cost expenses incurred by the Developer for which this Requisition is requested;
(c) To the extent applicable, a copy of a satisfactory "Interim Waiver and
Release Upon Payment" pursuant to O.C.G.A. § 44 -14 -366 from the General Contractor
which received payment from the proceeds of the immediately preceding Requisition;
and
(d) Certificate of Occupancy issued for the Rockwood Project.
DEVELOPER'S CERTIFICATIONS
In accordance with the Development Agreement, Developer certifies to Augusta that:
(a) all of its representations and warranties made in and as of the date of the Development
Agreement are true and correct in all material respects as of the date hereof;
(b) the construction of the TAD Project is in accordance with the Plans and the Development
Agreement;
(c) the Project Cost breakdown referenced in this Requisition is accurate;
(d) all amounts being reimbursed for stored materials are and will be stored in either (a) a
bonded warehouse approved by Augusta and accessible to inspection by representatives of Augusta, or
(b) stored in a locked and otherwise secure storage arrangement acceptable to Augusta and insured in an
amount acceptable to Augusta;
(e) intentionally omitted;
(f) no payment under this Requisition exceeds the maximum allowable non - construction
expenses actually incurred within the amounts set forth in the TAD Project Budget, plus the actual cost of
the completed portion of the TAD Project;
(g) all payments requested under this Requisition are for TAD Project items (i) which are of
a quality and construction acceptable under this Agreement and (ii) which have not been previously paid;
(h) there are no liens outstanding against the site of the TAD Project except (i) inchoate liens
for property taxes not yet due and payable, (ii) liens being contested in accordance with the terms and
conditions set forth in applicable law and (iii) liens consented to by Augusta or otherwise permitted by the
Development Agreement;
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(i)
Developer is not in default under the Development Agreement; and
(j) no governmental body has lawfully issued the equivalent of a stop order with respect to
any portion of the TAD Project.
Submitted by:
ROCKWOOD PIGMENT NA INC.
By:
Its:
Approved:
AUGUSTA - RICHMOND COUNTY, GEORGIA
By:
Its:
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SCHEDULE F
INTENTIONALLY OMITTED
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•
SCHEDULE G
SOURCES AND USES STATEMENT
Sources of financing: internal and external sources of Developer; debt or equity financing.
Uses are as described in the Development Agreement.
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SCHEDULE H
INTENTIONALLY OMITTED
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•
PERFORMANCE COMMITMENTS
SCHEDULE I
For purposes of Section 5.17 of this Agreement, the following performance commitments shall apply:
Investment: Subsequent to Commissioning and upon the submission of the initial Requisition, Augusta
shall determine the total investment made by Developer in the Rockwood Project. In the event that
Developer has expended or otherwise invested an amount equal to or greater than $80,500,000 (70
percent (70 %) of the initial projected investment of $115,000,000), then in such event all sums deposited
into the Special Fund (less any Administrative Fees due and payable) beginning December 31, 2011 (the
effective date of creation of the Doug Barnard/Dixon Airline TAD) and including the year of
Commissioning ( "Pre- Commissioning Special Funds ") shall be disbursed to Developer in accordance
with the provisions of Article IV of this Agreement. In the event that Developer has invested less than
$80,500,000 in the Rockwood Project, a fractional amount of the Pre - Commissioning Special Funds shall
be disbursed to Developer, with the numerator of such fraction being the total investment and the
denominator being $115,000,000. The amount of Pre - Commissioning Special Funds not paid to
Developer shall be deducted from the total Disbursements due to Developer under this Agreement.
Job Creation: To determine whether job creation performance commitment has been met, the total
number of full -time jobs shall be determined as of the end of the month in which Commissioning occurs.
In the event that the total number of full -time jobs is equal to or greater than 70 (70 percent (70 %) of the
anticipated full -time employment of 100 jobs), then all sums then and thereafter deposited into the Special
Fund (less any Administrative Fees due and payable) subsequent to Commissioning ("Post -
Commissioning Special Funds ") shall be disbursed to Developer in accordance with the provisions of
Article VI of this Agreement.
In the event that Developer has created less than 70 full -time jobs as of the end of the month in which
Commissioning occurs, a fractional amount of the Post - Commissioning Special Funds shall be disbursed
to Developer, with the numerator of such fraction being the total number of jobs created and the
denominator being 100. Thereafter, a determination shall be made annually as to the average number of
full -time jobs existing at the Rockwood Project during the current year and prior year (a two -year rolling
average). In the event that the total average number of jobs existing at the Rockwood Project is equal to
or greater than 70 (70 percent (70 %) of the anticipated full -time employment of 100 jobs), then all sums
then and thereafter deposited into the Special Fund (less any Administrative Fees due and payable) shall
be disbursed to Developer in accordance with the provisions of Article VI of this Agreement. In the event
the average total number of jobs is less that 70, then Developer shall be paid a proportionate amount of
the current year's deposits into the Special Fund (less Administrative Fees due and payable) as described
above, and the annual review shall continue until such time as the two-year average number of jobs
existing equals 70. The amount of Post - Commissioning Special Funds not paid to Developer shall be
deducted from the total Disbursements due to Developer under this Agreement.
"Full -time jobs" defined: For purposes of this Schedule I, the number of new "full -time jobs" shall be
defined and determined, from time to time, as follows.
(a) Only direct employees of Developer shall be counted.
(b) In determining the number of full -time jobs, a portion of the definition of "full -time job"
from the job tax credit regulations of the Georgia Department of Community Affairs (which portion is set
forth below) shall be used, but shall be modified as follows: "In no event shall any temporary employee
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or leased employee be counted as occupying a full -time job, regardless of whether or not such person is
employed by Developer or any other person or entity, provided, that, subject to the limitation set forth
below, a contract employee of Developer, in a position that otherwise meets the defmition of a full -time
job as further described herein, may be counted as such, if Developer provides benefits to such employee
comparable to those provided by Developer to its permanent employees for purposes of this Agreement
(each such worker, a "qualified contract worker ")." The parties acknowledge the nature of Developer's
business and its desire to be able to count contract workers for purposes of this Agreement. At the same
time, the parties acknowledge Augusta's interest in establishing permanent jobs in the community To
accommodate the interests of both parties, the parties agree as follows: Developer represents that its target
for utilization of contract workers (whether or not they are qualified contract workers) is that such
workers not exceed on average in any year 10% of its workforce at Rockwood Project. The parties agree,
however, that if at any time the number of contract workers at the Rockwood Project (whether or not they
are qualified contract workers) amounts to more than 20% of Developer's permanent employees at the
Rockwood Project, then any qualified contract workers in excess of 20% of Developer's permanent
employees shall not be counted as occupying full -time jobs for purposes of this Agreement. In no event
will contract workers who are not qualified contract workers (qualified contract workers having benefits
comparable to those of permanent employees) be counted for such purposes. Notwithstanding anything to
the contrary contained in this paragraph, a temporary employee hired as a short-term replacement for a
position that is vacant because of maternity leave, sick leave or family leave, which vacant position
otherwise meets the definition of a full -time job hereunder, may be counted as occupying a full -time job,
regardless of whether Developer provides benefits to such temporary employee.
(c) Subject to such modification, "full -time job" means the following: a job with no
predetermined end date (other than a retirement date), with a regular work week of 35 hours or more on
average for the entire normal year of local Developer operations, and with benefits provided to other
regular employees of Developer locally, but does not mean a job classified for federal tax purposes as an
independent contractor.
Full - time Jobs Determined: For purposes of determining whether the job creation performance
commitment has been met as of the end of the month in which Commissioning occurs, the number of full -
time jobs shall be determined based on the total number of full -time employees subject to Georgia income
tax withholding for the taxable year. Transferred jobs and replacement jobs may not be included.
In the event that the job creation performance commitment has not been met as of the end of the month in
which Commissioning occurs, the number of full -time jobs shall be calculated as provided below.
(a) The number of jobs shall be determined based on the monthly average number of full -
time employees subject to Georgia income tax withholding for the taxable year.
(b) The monthly average number of full -time employees in a taxable year shall be
determined by the following method:
(i) for each month of the taxable year, count the total number of full -time
employees of the business enterprise that are subject to Georgia income tax
withholding as of the last payroll period of the month or as of the payroll period
during each month used for the purpose of reports to the Georgia Department of
Labor;
(ii) add the monthly totals of full -time employees; and
(iii) divide the result by the number of months the business enterprise was in
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•
operation during the taxable year. Transferred jobs and replacement jobs may not
be included in the monthly totals.
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