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HomeMy WebLinkAboutAUTHORIZING RESOLUTION WITH INTERGOVERNMENTAL DOWNTOWN DVELOPMENT CONTRACT RELATIVE TO 511 REYNOLDS STREET_ DEPOT PROJECT AUTHORIZING RESOLUTION WHEREAS, the Downtown Development Authority of the City of Augusta (the "Authority") proposes to issue, sell, and deliver its revenue bonds to be known as "Downtown Development Authority of the City of Augusta Revenue Bonds (Riverfront Project), Federally Taxable Series 2018"(the"Series 2018 Bonds"), in the original aggregate principal amount not to exceed $14,000,000, for the purpose of obtaining funds (1) to enable the Authority to make disbursements pursuant to the terms of a Project Grant Agreement, to be dated as of the first day of the month of its execution and delivery (the "Grant Agreement"), between the Authority, as grantor, and Augusta Developers LLC (the "Developer"), as grantee, in order to enable the Developer to pay a portion of the costs of(A) acquiring, constructing, and installing mixed-use properties consisting of approximately 140 residential units, approximately 5,000 square feet of retail space, community greenspace, and a structured parking facility containing approximately 490 spaces and (B) renovating an approximately 16,000 square foot railroad depot building (collectively the "Properties"), to be located on an approximately 6.27 acre site at 511 Reynolds Street in Augusta, Georgia, and(2) to finance the costs of issuing the Series 2018 Bonds; and WHEREAS,Augusta, Georgia(the"Consolidated Government") is authorized by Article IX, Section III, Paragraph I(a) of the Constitution of the State of Georgia of 1983 to contract for any period not exceeding fifty years with the Authority for joint services, for the provision of services,or for the joint or separate use of facilities or equipment but such contracts must deal with activities, services, or facilities which the contracting parties are authorized by law to undertake or provide; and WHEREAS, the Consolidated Government is authorized by Section 48-5-350 of the Official Code of Georgia Annotated to levy and collect municipal taxes upon all taxable property within the limits of the Consolidated Government to provide for financial assistance to the Authority for the purpose of developing trade,commerce,industry,and employment opportunities; provided the tax levied for the purposes provided in that code section shall not exceed three mills per dollar upon the assessed value of the property; and WHEREAS, the property presently subject to taxation by the Consolidated Government pursuant to Section 48-5-350 of the Official Code of Georgia Annotated consists of taxable property located within the territorial limits of the Consolidated Government, as such territorial limits are determined when the Consolidated Government exercises its powers as a municipality, and excludes taxable property located within the corporate limits of municipalities located within the territorial limits of the Consolidated Government,as such territorial limits are determined when the Consolidated Government exercises its powers as a county; and WHEREAS, in consideration of the issuance of the Series 2018 Bonds by the Authority to finance a portion of the costs of acquiring, constructing, installing, and renovating the Properties, the Consolidated Government proposes to enter into an Intergovernmental Downtown Development Contract, to be dated as of the first day of the month of its execution and delivery (the "Contract"), with the Authority, the form of which is to be filed with the Consolidated Government and submitted to the Augusta-Richmond County Commission, under the terms of which the Consolidated Government agrees to (1) make payments to the Authority in amounts -44839-5321.4309 v7- sufficient to enable the Authority to pay, among other things, the principal of, premium, if any, and interest on the Series 2018 Bonds when due and (2) levy an annual ad valorem tax on all taxable property located within the territorial limits of the Consolidated Government, which is subject to taxation for purposes of fulfilling the Consolidated Government's obligations under this Contract, at such rates within the three mill limit authorized by Section 48-5-350 of the Official Code of Georgia Annotated or such greater millage limit hereafter authorized under applicable law, as may be necessary to produce in each year revenues that are sufficient to fulfill the Consolidated Government's obligations under the Contract; and WHEREAS,the Consolidated Government's obligation to levy an annual ad valorem tax pursuant to the Contract will also be subject to the tax limitation contained in an amendment to Article VII, Section I, Paragraph II of the Constitution of the State of Georgia of 1976 (1980 Ga. Laws 2177 to 2180,inclusive),now specifically continued as a part of the Constitution of the State of Georgia of 1983 pursuant to an Act of the General Assembly of the State of Georgia (1983 Ga. Laws 3870 to 3872, inclusive); and WHEREAS, the Authority proposes to adopt a Master Bond Resolution (the "Bond Resolution")authorizing the issuance of the Series 2018 Bonds, and the Authority will furnish the Consolidated Government with a certified copy of the Bond Resolution promptly after its adoption by the Authority; and WHEREAS, pursuant to the Bond Resolution, the payments to be received by the Authority from the Consolidated Government pursuant to the Contract will be pledged to, and a first priority lien will be created thereon as security for, the payment of principal of, premium, if any, and interest on the Series 2018 Bonds and any Additional Bonds (as defined in the Bond Resolution) that may be issued; and WHEREAS, the Bond Resolution will provide, among other things, that the Series 2018 Bonds shall bear interest at the rate or rates per annum to be specified therein (but which shall not in any event exceed a maximum per annum rate of interest of 6.50%), computed on the basis of a 360-day year consisting of twelve 30-day months, payable on April 1, 2019, and semiannually thereafter on each October 1 and April 1 and shall mature on April 1, in the years (with a term not exceeding 40 years)and in the principal amounts to be specified therein(provided the principal of and interest on the Series 2018 Bonds payable in any fiscal year of the Consolidated Government shall not in any event exceed a maximum amount of $1,500,000), unless earlier called for redemption; and WHEREAS, the Authority plans to sell the Series 2018 Bonds to Raymond James & Associates,Inc. (the"Underwriter")pursuant to a Bond Purchase Agreement(the"Bond Purchase Agreement")to be entered into between the Authority and the Underwriter; and WHEREAS, after careful study and investigation, the Consolidated Government desires to enter into the Contract; -2- -#4839-5321-4309 v.7- NOW, THEREFORE, BE IT RESOLVED by the Augusta-Richmond County Commission (the "Commission")as follows: 1. The form, terms, and conditions and the execution, delivery, and performance of the Contract, which is to be filed with the Consolidated Government, are hereby approved and authorized. The Contract shall be in substantially the form approved by the Commission with such changes, corrections, deletions, insertions, variations, additions, or omissions as may be approved by the Commission. 2. The Mayor of the Consolidated Government is hereby authorized to execute on behalf of the Consolidated Government the Contract, and the Clerk of Commission of the Consolidated Government is hereby authorized to affix thereto and attest the seal of the Consolidated Government,upon proper execution and delivery by the Authority,provided,that in no event shall any such attestation or affixation of the seal of the Consolidated Government be required as a prerequisite to the effectiveness thereof, and the Mayor and Clerk of Commission of the Consolidated Government are authorized to deliver the Contract on behalf of the Consolidated Government to the Authority, and, following approval by the Commission, to execute and deliver all such other contracts, instruments, documents, affidavits, or certificates (including, without limitation, a letter of representation to the Underwriter and an Official Statement, a Rule 15c2-12 Certificate, and a Continuing Disclosure Certificate for the Series 2018 Bonds) and to do and perform all such things and acts as the Commission shall deem necessary or appropriate in furtherance of the issuance of the Series 2018 Bonds and the carrying out of the transactions authorized by this Resolution or contemplated by the instruments and documents referred to in this Resolution. 3. This Resolution and the Contract , as approved by this Resolution, which is hereby incorporated in this Resolution by this reference thereto, shall be placed on file at the office of the Consolidated Government and made available for public inspection by any interested party immediately following the passage and approval of this Resolution. PASSED,ADOPTED, SIGNED,APPROVED, and EFFECTIVE this 10th day of July 2018. AUGUSTA, GEORGIA � By: cc. (SEAL),,�.°'03Cil Mt)4 e�� AO Mayor Atte ��f�IfF' � pose Co ef- ‘PIL *0 r; ) W/0//1 Clem6 i ..ion ,° -3 --#4839-5321-4309 v.7— CLERK OF COMMISSION'S CERTIFICATE I, LENA J. BONNER, the duly appointed, qualified, and acting Clerk of Commission of Augusta,Georgia(the"Consolidated Government"),DO HEREBY CERTIFY that the foregoing pages of typewritten matter constitute a true and correct copy of a resolution adopted on July 10, 2018 by the Augusta-Richmond County Commission(the"Commission")in a meeting duly called and assembled in accordance with applicable laws and with the procedures of the Consolidated Government,by a vote of Yea and Nay,which meeting was open to the public and at which a quorum was present and acting throughout,and that the original of the foregoing resolution appears of public record in the Minute Book of the Commission, which is in my custody and control. GIVEN under my hand and the seal of the Consolidated Government,this 10th day of July 2018. (SEAL) Clerk of Commission of Augusta, Georgia 4�4839-5321-4309 v.7- AUGUSTA, GEORGIA (a political subdivision duly created and existing under the laws of the State of Georgia) and DOWNTOWN DEVELOPMENT AUTHORITY OF THE CITY OF AUGUSTA (a public body corporate and politic duly created and existing under the laws of the State of Georgia) INTERGOVERNMENTAL DOWNTOWN DEVELOPMENT CONTRACT Dated as of 1, 2018 THE RIGHTS AND INTEREST OF THE DOWNTOWN DEVELOPMENT AUTHORITY OF THE CITY OF AUGUSTA IN THIS INTERGOVERNMENTAL DOWNTOWN DEVELOPMENT CONTRACT AND THE REVENUES AND RECEIPTS DERIVED HEREFROM, EXCEPT FOR ITS UNASSIGNED RIGHTS, AS DEFINED HEREIN, HAVE BEEN COLLATERALLY ASSIGNED AND PLEDGED TO SECURE THE BONDHOLDERS (AS DEFINED HEREIN) PURSUANT TO A MASTER BOND RESOLUTION ADOPTED BY THE DOWNTOWN DEVELOPMENT AUTHORITY OF THE CITY OF AUGUSTA ON , 2018. 44843-7881-7375 v.12- INTERGOVERNMENTAL DOWNTOWN DEVELOPMENT CONTRACT TABLE OF CONTENTS (This Table of Contents is not a part of the Intergovernmental Downtown Development Contract and is only for convenience of reference.) Page ARTICLE I -- DEFINITIONS 2 ARTICLE II -- REPRESENTATIONS AND WARRANTIES 4 Section 2.1. Representations and Warranties by the Consolidated Government 4 Section 2.2. Representations and Warranties by the Authority 7 Section 2.3. Reliance by Bondholders 9 ARTICLE III -- TERM OF CONTRACT; CONTRACT AS SECURITY FOR BONDS 9 Section 3.1. Tenn 9 Section 3.2. This Contract as Security for the Bonds 9 ARTICLE IV -- AUTHORITY'S OBLIGATIONS HEREUNDER 11 Section 4.1. Issuance of Series 2018 Bonds; Application of Bond Proceeds 11 Section 4.2. The Properties 11 Section 4.3. Additional Bonds 12 Section 4.4. Redemption of Bonds 12 Section 4.5. Prepayment 12 Section 4.6. Execution and Modifications of the Grant Agreement and the Development Agreement; Change Orders; Amendments to Project Development Plan 12 ARTICLE V -- CONSOLIDATED GOVERNMENT'S OBLIGATIONS HEREUNDER 13 Section 5.1. Consolidated Government's Payment Obligations 13 Section 5.2. Source of Funds for Consolidated Government's Payment Obligations; Limitations on Additional Contracts 14 Section 5.3. Continuing Disclosure 15 (i) -4�4843-7881-7375 v.12- Page ARTICLE VI -- MISCELLANEOUS 16 Section 6.1. Governing Law 16 Section 6.2. Entire Agreement 16 Section 6.3. Severability 16 Section 6.4. Survival of Warranties 16 Section 6.5. Counterparts 16 Section 6.6. Amendments in Writing 16 Section 6.7. Notices 16 Section 6.8. Limitation of Rights 17 Section 6.9. Immunity of Officials, Officers, and Employees of Authority and Consolidated Government 17 (ii) -#4843-7881-7375 v.12- INTERGOVERNMENTAL DOWNTOWN DEVELOPMENT CONTRACT This INTERGOVERNMENTAL DOWNTOWN DEVELOPMENT CONTRACT (this "Contract"), made and entered into as of 1, 2018, by and between Augusta, Georgia(the"Consolidated Government"), a political subdivision duly created and existing under the laws of the State of Georgia,and the Downtown Development Authority of the City of Augusta (the "Authority"), a public body corporate and politic duly created and existing under the laws of the State of Georgia; WITNESSETH: WHEREAS, the Authority proposes to issue, sell, and deliver its revenue bonds to be known as the "Downtown Development Authority of the City of Augusta Revenue Bonds (Riverfront Project), Federally Taxable Series 2018" (the "Series 2018 Bonds"), in the original aggregate principal amount of$ , for the purpose of obtaining funds (1)to enable the Authority to make disbursements pursuant to the terms of a Project Grant Agreement, dated this date (the "Grant Agreement"), between the Authority, as grantor, and Augusta Developers LLC (the "Developer"), as grantee, in order to enable the Developer to pay a portion of the costs of (A) acquiring, constructing, and installing mixed-use properties consisting of approximately 140 residential units, approximately 5,000 square feet of retail space, community greenspace, and a structured parking facility containing approximately 490 spaces and (B) renovating an approximately 16,000 square foot railroad depot building (collectively the "Properties"), to be located on an approximately 6.27 acre site at 511 Reynolds Street in Augusta, Georgia, and (2) to finance the costs of issuing the Series 2018 Bonds; and WHEREAS, the Authority and the Consolidated Government propose to enter into this Contract,under the terms of which the Consolidated Government will agree to(1)make payments to the Authority in amounts sufficient to enable the Authority to pay, among other things, the principal of, premium, if any, and interest on the Series 2018 Bonds when due and (2) levy an annual ad valorem tax on all taxable property located within the territorial limits of the Consolidated Government,which is subject to taxation for purposes of fulfilling the Consolidated Government's obligations under this Contract, at such rates within the three mill limit authorized by Section 48-5-350 of the Official Code of Georgia Annotated or such greater millage limit hereafter authorized under applicable law, as may be necessary to produce in each year revenues that are sufficient to fulfill the Consolidated Government's obligations under this Contract; and WHEREAS,the Consolidated Government's obligation to levy an annual ad valorem tax pursuant to this Contract will also be subject to the tax limitation contained in an amendment to Article VII, Section I, Paragraph II of the Constitution of the State of Georgia of 1976 (1980 Ga. Laws 2177 to 2180,inclusive),now specifically continued as a part of the Constitution of the State of Georgia of 1983 pursuant to an Act of the General Assembly of the State of Georgia(1983 Ga. Laws 3870 to 3872, inclusive) (collectively the "Constitutional Provision"); and WHEREAS, the Authority proposes to issue the Series 2018 Bonds pursuant to a Master Bond Resolution adopted by the Authority on , 2018 (the "Bond Resolution"); and -#4843-7881-7375 v.12- WHEREAS, to secure its obligation to pay principal of, premium, if any, and interest on the Series 2018 Bonds, the Authority has assigned and pledged to the owners of the Series 2018 Bonds all of its right, title, and interest in this Contract (except for the Unassigned Rights, as defined herein) and all revenues, payments, receipts, and moneys to be received and held hereunder, pursuant to the Bond Resolution; NOW, THEREFORE, in consideration of the respective covenants, representations, and agreements hereinafter contained and in furtherance of the mutual public purposes hereby sought to be achieved, the Consolidated Government and the Authority agree as follows: ARTICLE I DEFINITIONS In addition to the words and terms defined elsewhere herein,the following words and terms shall have the meanings specified below, unless the context or use indicates another or different meaning or intent: "2004 Solid Waste Authority Contract"means the Intergovernmental Contract,dated as of September 1, 2004, between the Solid Waste Management Authority of Augusta and the Consolidated Government, as the same may be supplemented and amended from time to time in accordance with the provisions thereof. "2018 Project"means the initial capital improvements to be made to the Properties. "Additional Bonds" means the additional parity Bonds authorized to be issued by the Authority pursuant to the terms and conditions of Section of the Bond Resolution. "Additional Contract" means a contract or supplemental agreement (including, without limitation, any amendment or supplement to this Contract)between the Consolidated Government and the Authority or any other development authority that is now existing or that may hereafter be created or activated, pursuant to the terms of which a payment obligation from the Consolidated Government to any such authority is created or expanded,the source of which payment obligation is the Tax. "Authority" shall have the meaning assigned to that term in the recitals to this Contract and its successors and assigns. "Bond Resolution" shall have the meaning assigned to that term in the recitals to this Contract, as it may be amended, restated, supplemented, or modified from time to time. "Bond Year"means the twelve-month period beginning on April 2 of each calendar year and ending on April 1 of the next succeeding calendar year. "Bondholders"means the Persons in whose names any of the Bonds are registered on the books kept and maintained by the bond registrar under the Bond Resolution. -2- -#4843-7881-7375 v.12- "Bonds" means the Series 2018 Bonds and all series of Additional Bonds from time to time authenticated and delivered under the Bond Resolution. "Consolidated Government" shall have the meaning assigned to that term in the recitals to this Contract and its successors and assigns. "Constitutional Provision" shall have the meaning assigned to that term in the recitals to this Contract. "Contract"means this Intergovernmental Downtown Development Contract between the Consolidated Government and the Authority, as it may be supplemented and amended from time to time in accordance with the provisions hereof. "Contracts"means this Contract and all Additional Contracts. "Developer" shall have the meaning assigned to that term in the recitals to this Contract and its successors and assigns. "Development Agreement" means the Purchase, Sale, and Development Agreement, dated , 2018, between the Authority and the Developer, as it may be supplemented and amended from time to time in accordance with the provisions thereof, relating to the development of the Properties. "Grant Agreement" shall have the meaning assigned to that term in the recitals to this Contract, as it may be amended, restated, supplemented, or modified from time to time. "Option Agreement"means the Purchase Option Agreement,dated this date,between the Authority, as optionor, and the Consolidated Government, as optionee, as it may be supplemented and amended from time to time in accordance with the provisions thereof, relating to community greenspace comprising a portion of the Properties and a perpetual easement for the exclusive use of 175 designated contiguous parking spaces within the parking deck comprising a portion of the Properties. "Person" means an individual, a corporation, a partnership, a limited liability company, an association, a joint stock company, a joint venture, a trust, an unincorporated organization, a governmental unit or an agency, a political subdivision or instrumentality thereof, or any other group or organization of individuals. "Prior Lien Contracts"means, collectively, the Intergovernmental Contract, dated as of December 7, 2010, between the Solid Waste Management Authority of Augusta and the Consolidated Government; the Agreement of Sale, dated as of August 1, 2010, between the Augusta-Richmond County Coliseum Authority and the Consolidated Government; the Intergovernmental Service Agreement, dated as of August 1, 2010, between the Augusta- Richmond County Coliseum Authority and the Consolidated Government; the Intergovernmental Agreement, dated as of August 1, 2014, between the Urban Redevelopment Agency of Augusta and the Consolidated Government; the Intergovernmental Service Agreement, dated as of September 15,2015,between the Urban Redevelopment Agency of Augusta and the Consolidated Government; the Agreement of Sale, dated as of July 1, 2017, as supplemented and amended by -3- -#4843-7881-7375 v.12- the First Amendment to Agreement of Sale, dated as of July 1, 2018, between the Urban Redevelopment Agency of Augusta and the Consolidated Government; and the Intergovernmental Redevelopment Contract, dated as of May 1, 2018,between the Urban Redevelopment Agency of Augusta and the Consolidated Government, as the same may be supplemented and amended from time to time in accordance with the provisions thereof. "Project"means the 2018 Project or any future capital improvements to the Properties. "Properties" shall have the meaning assigned to that term in the recitals to this Contract. "Series 2018 Bonds" means the revenue bonds designated the "Downtown Development Authority of the City of Augusta Revenue Bonds,Federally Taxable Series 2018,"to be dated the date of their issuance and delivery, in the original aggregate principal amount of$ to be issued pursuant to the Bond Resolution. "Series 2018 Disclosure Certificate"means the Continuing Disclosure Certificate, dated the date of issuance of the Series 2018 Bonds, of the Consolidated Government, as originally executed and as it may be amended from time to time in accordance with the terms thereof. "Sinking Fund Custodian"means the custodian of the Sinking Fund held under the Bond Resolution. "State"means the State of Georgia. "Tax"means the three mill ad valorem tax authorized by Section 48-5-350 of the Official Code of Georgia Annotated. "Taxable Property"means all taxable property located within the territorial limits of the Consolidated Government, as now existent and as the same may hereafter be extended, which is subject to taxation from time to time for purposes of fulfilling the Consolidated Government's obligations under this Contract. "Unassigned Rights" means all of the rights of the Authority to receive reimbursements and payments pursuant to Section 5.1(c)hereof. ARTICLE II REPRESENTATIONS AND WARRANTIES Section 2.1. Representations and Warranties by the Consolidated Government. The Consolidated Government makes the following representations and warranties as the basis for the undertakings on its part herein contained: (a) Creation and Authority. The Consolidated Government is a political subdivision duly created and validly existing under the laws of the State. The Consolidated Government has all requisite power and authority under the laws of the State to contract with the Authority to finance by grant a portion of the costs of the Properties and to enter into, perform its obligations under, and exercise its rights under this Contract. -4- #4843-7881-7375 v.12- (b) Pending Litigation. There are no actions, suits, proceedings, inquiries, or investigations pending or, to the knowledge of the Consolidated Government, after making due inquiry with respect thereto, threatened against or affecting the Consolidated Government in any court or by or before any governmental authority or arbitration board or tribunal, which involve the possibility of materially and adversely affecting the levy and collection of the Tax by the Consolidated Government, or the ability of the Consolidated Government to perform its obligations under this Contract, or the transactions contemplated by this Contract or which, in any way, would adversely affect the validity or enforceability of this Contract or any agreement or instrument to which the Consolidated Government is a party and which is used or contemplated for use in the consummation of the transactions contemplated hereby or thereby, nor is the Consolidated Government aware of any facts or circumstances presently existing that would form the basis for any such actions, suits, or proceedings. The Consolidated Government is not in default with respect to any judgment, order, writ, injunction, decree, demand, rule, or regulation of any court, governmental authority, or arbitration board or tribunal. (c) Contract Is Legal and Authorized. The execution and delivery by the Consolidated Government of this Contract, the consummation of the transactions herein contemplated, and the fulfillment of or the compliance with all of the provisions hereof(i) are within the power, legal right, and authority of the Consolidated Government; (ii) are legal and will not conflict with or constitute on the part of the Consolidated Government a violation of or a breach of or a default under, any organic document, indenture, mortgage, security deed, pledge, note, lease, loan, or installment sale agreement, contract, or other agreement or instrument to which the Consolidated Government is a party or by which the Consolidated Government or its properties are otherwise subject or bound, or any license, law, statute, rule, regulation,judgment, order, writ, injunction, decree, or demand of any court or governmental agency or body having jurisdiction over the Consolidated Government or any of its activities or properties; and(iii)have been duly authorized by all necessary and appropriate official action on the part of the Augusta-Richmond County Commission. This Contract is the valid, legal, binding, and enforceable obligation of the Consolidated Government. The officials of the Consolidated Government executing this Contract are duly and properly in office and are fully authorized and empowered to execute the same for and on behalf of the Consolidated Government. (d) Governmental Consents. Neither the Consolidated Government nor any of its activities or properties, nor any relationship between the Consolidated Government and any other Person,nor any circumstances in connection with the execution, delivery, and performance by the Consolidated Government of its obligations under this Contract or the offer,issue, sale,or delivery by the Authority of the Bonds, is such as to require the consent, approval, permission, order, license, or authorization of, or the filing, registration, or qualification with, any governmental authority on the part of the Consolidated Government in connection with the execution, delivery, and performance of this Contract or the consummation of any transaction herein contemplated, or the offer, issue, sale, or delivery of the Bonds, except as shall have been obtained or made and as are in full force and effect and except as are not presently obtainable. To the knowledge of the Consolidated Government, after making due inquiry with respect thereto, the Consolidated Government will be able to obtain all such additional consents, approvals, permissions, orders, licenses, or authorizations of governmental authorities as may be required on or prior to the date the Consolidated Government is legally required to obtain the same. -5- -#4843-7881-7375 v.12- (e) No Defaults. To the knowledge of the Consolidated Government, after making due inquiry with respect thereto, the Consolidated Government is not in default or violation in any material respect under any organic document or other agreement or instrument to which it is a party or by which it may be bound, which default might materially and adversely affect the levy and collection of the Tax by the Consolidated Government. (f) Compliance with Law. To the knowledge of the Consolidated Government, after making due inquiry with respect thereto, the Consolidated Government is not in violation of any laws, ordinances, or governmental rules or regulations to which it or its properties are subject and has not failed to obtain any licenses, permits, franchises, or other governmental authorizations (which are presently obtainable) necessary to the levy and collection of the Tax by the Consolidated Government, which violation or failure to obtain might materially and adversely affect the levy and collection of the Tax by the Consolidated Government, and there have been no citations, notices, or orders of noncompliance issued to the Consolidated Government under any such law, ordinance, rule, or regulation. (g) Restrictions on the Consolidated Government. The Consolidated Government is not a party to or bound by any contract, instrument, or agreement, or subject to any other restriction, that materially and adversely affects the levy and collection of the Tax by the Consolidated Government. The Consolidated Government is not a party to any contract or agreement that restricts the right or ability of the Consolidated Government to enter into agreements for the Authority to finance by grant a portion of the costs of the Properties in exchange for payments on an installment basis, except for the Prior Lien Contracts. (h) Disclosure. The representations of the Consolidated Government contained in this Contract and any certificate, document, written statement, or other instrument furnished by or on behalf of the Consolidated Government to the Authority in connection with the transactions contemplated hereby, do not contain any untrue statement of a material fact and do not omit to state a material fact necessary to make the statements contained herein or therein not misleading. There is no fact that the Consolidated Government has not disclosed to the Authority in writing that materially and adversely affects or in the future may (so far as the Consolidated Government can now reasonably foresee) materially and adversely affect the levy and collection of the Tax by the Consolidated Government, or the ability of the Consolidated Government to perform its obligations under this Contract or any of the documents or transactions contemplated hereby or thereby or any other transactions contemplated by this Contract, which has not been set forth in writing to the Authority or in the certificates, documents, and instruments furnished to the Authority by or on behalf of the Consolidated Government prior to the date of execution of this Contract in connection with the transactions contemplated hereby. (i) Financial Statements. The balance sheet of the Consolidated Government as of December 31, 2017, and the statement of revenues, expenditures, and changes in fund balances of the Consolidated Government for the year ended December 31,2017 (copies of which, audited by Mauldin & Jenkins, LLC, independent certified public accountants, have been furnished to the Authority) present fairly the financial position of the Consolidated Government as of December 31, 2017, and the changes in financial position for the year ended December 31, 2017, with such exceptions as may be disclosed in the audit report. Since December 31, 2017, there has been no -6- -#4843-7881-7375 v.12- material adverse change in the financial position or changes in financial position of the Consolidated Government, except as disclosed in writing to the Authority. (j) Other Contracts Related to the Tax. The Consolidated Government represents that there is not presently in force and effect any other contract or agreement that obligates the Consolidated Government to levy the Tax, to provide revenues to fulfill the Consolidated Government's obligations under such contract or agreement. (k) Compliance with Conditions of Prior Lien Contracts. The Consolidated Government has obtained documentation evidencing that the conditions of the Prior Lien Contracts have been satisfied, in order to permit the Authority and the Consolidated Government to enter into this Contract, which documentation is attached to this Contract as Exhibit A. The Consolidated Government represents that there is not presently in force and effect any other contract or agreement that encumbers ad valorem property taxes subject to the millage limitation contained in the Constitutional Provision, except for the Prior Lien Contracts and the 2004 Solid Waste Authority Contract. (1) Sovereign Immunity. The Consolidated Government may not assert the defense of sovereign immunity to any action at law (as opposed to equity) for the breach of this Contract or to any action at law (as opposed to equity) to enforce a judgment taken for the breach of this Contract. Section 2.2. Representations and Warranties by the Authority. The Authority makes the following representations and warranties as the basis for the undertakings on its part herein contained: (a) Creation and Authority. The Authority is a public body corporate and politic duly created and validly existing under the laws of the State. The Authority has all requisite power and authority under the laws of the State to contract with the Developer to finance by grant a portion of the costs of the Properties and to enter into,perform its obligations under, and exercise its rights under this Contract. (b) Pending Litigation. There are no actions, suits, proceedings, inquiries, or investigations pending or,to the knowledge of the Authority,after making due inquiry with respect thereto,threatened against or affecting the Authority in any court or by or before any governmental authority or arbitration board or tribunal,which involve the possibility of materially and adversely affecting the ability of the Authority to perform its obligations under this Contract, or the transactions contemplated by this Contract or which, in any way, would adversely affect the validity or enforceability of this Contract or any agreement or instrument to which the Authority is a party and which is used or contemplated for use in the consummation of the transactions contemplated hereby or thereby (including, without limitation, the Development Agreement, the Option Agreement, and the Grant Agreement), nor is the Authority aware of any facts or circumstances presently existing that would form the basis for any such actions, suits, or proceedings. The Authority is not in default with respect to any judgment, order,writ, injunction, decree, demand, rule, or regulation of any court, governmental authority, or arbitration board or tribunal. -7- -#4843-7881-7375 v.12- (c) Contract Is Legal and Authorized. The execution and delivery by the Authority of this Contract, the consummation of the transactions herein contemplated, and the fulfillment of or the compliance with all of the provisions hereof(i) are within the power, legal right, and authority of the Authority; (ii) are legal and will not conflict with or constitute on the part of the Authority a violation of or a breach of or a default under, any organic document, indenture, mortgage, security deed,pledge,note,lease,loan,or installment sale agreement, contract,or other agreement or instrument to which the Authority is a party or by which the Authority or its properties are otherwise subject or bound, or any license, law, statute, rule, regulation, judgment, order, writ, injunction, decree, or demand of any court or governmental agency or body having jurisdiction over the Authority or any of its activities or properties; and (iii) have been duly authorized by all necessary and appropriate official action on the part of the Board of Directors of the Authority. This Contract is the valid,legal,binding,and enforceable obligation of the Authority. The officials of the Authority executing this Contract are duly and properly in office and are fully authorized and empowered to execute the same for and on behalf of the Authority. (d) Governmental Consents. Neither the Authority nor any of its activities or properties, nor any relationship between the Authority and any other Person, nor any circumstances in connection with the execution,delivery, and performance by the Authority of its obligations under this Contract,the Development Agreement,the Option Agreement, or the Grant Agreement or the offer, issue, sale, or delivery by the Authority of the Bonds, is such as to require the consent, approval,permission, order, license, or authorization of, or the filing, registration, or qualification with, any governmental authority on the part of the Authority in connection with the execution, delivery, and performance of this Contract, the Development Agreement, the Option Agreement, or the Grant Agreement or the consummation of any transaction herein or therein contemplated, or the offer, issue, sale, or delivery of the Bonds, except as shall have been obtained or made and as are in full force and effect and except as are not presently obtainable. To the knowledge of the Authority, after making due inquiry with respect thereto, the Authority will be able to obtain all such additional consents, approvals, permissions, orders, licenses, or authorizations of governmental authorities as may be required on or prior to the date the Authority is legally required to obtain the same. (e) No Defaults. To the knowledge of the Authority, after making due inquiry with respect thereto,the Authority is not in default or violation in any material respect under any organic document or other agreement or instrument to which it is a party or by which it may be bound, which default might materially and adversely affect the performance by the Authority of its obligations under this Contract, the Development Agreement,the Option Agreement, or the Grant Agreement. (f) Compliance with Law. To the knowledge of the Authority, after making due inquiry with respect thereto, the Authority is not in violation of any laws, ordinances, or governmental rules or regulations to which it or its properties are subject and has not failed to obtain any licenses, permits, franchises, or other governmental authorizations (which are presently obtainable) necessary to the performance by the Authority of its obligations under this Contract, the Development Agreement, the Option Agreement, or the Grant Agreement, which violation or failure to obtain might materially and adversely affect the performance by the Authority of its obligations under this Contract, the Development Agreement, the Option Agreement, or the Grant -8- -#4843-7881-7375 v.12- Agreement, and there have been no citations, notices, or orders of noncompliance issued to the Authority under any such law, ordinance, rule, or regulation. (g) Restrictions on the Authority. The Authority is not a party to or bound by any contract,instrument,or agreement,or subject to any other restriction,that materially and adversely affects the performance by the Authority of its obligations under this Contract, the Development Agreement, the Option Agreement, or the Grant Agreement. The Authority is not a party to any contract or agreement that restricts the right or ability of the Authority to enter into agreements for the Authority to finance by grant a portion of the costs of the Properties. (h) Disclosure. The representations of the Authority contained in this Contract and any certificate, document, written statement, or other instrument furnished by or on behalf of the Authority to the Consolidated Government in connection with the transactions contemplated hereby, do not contain any untrue statement of a material fact and do not omit to state a material fact necessary to make the statements contained herein or therein not misleading. There is no fact that the Authority has not disclosed to the Consolidated Government in writing that materially and adversely affects or in the future may (so far as the Authority can now reasonably foresee) materially and adversely affect the ability of the Authority to perform its obligations under this Contract, the Development Agreement, the Option Agreement, or the Grant Agreement or any of the documents or transactions contemplated hereby or thereby or any other transactions contemplated by this Contract, which has not been set forth in writing to the Consolidated Government or in the certificates, documents, and instruments furnished to the Consolidated Government by or on behalf of the Authority prior to the date of execution of this Contract in connection with the transactions contemplated hereby. Section 2.3. Reliance by Bondholders. The Consolidated Government and the Authority acknowledge and agree that these representations and warranties are made to induce the Bondholders to purchase the Bonds and that such representations and warranties and any other representations and warranties made by the Consolidated Government or the Authority in this Contract are made for the benefit of the Bondholders and may be relied upon by the Bondholders. ARTICLE III TERM OF CONTRACT; CONTRACT AS SECURITY FOR BONDS Section 3.1. Term. The term of this Contract shall commence with the execution and delivery hereof and shall extend until 91 days after the principal of, premium, if any, and interest on the Bonds and all other amounts payable under the Bond Resolution have been paid in full or until provision has been duly made therefor,but in no event shall the term hereof exceed fifty(50) years from the date hereof. The obligations of the Consolidated Government set forth in Section 5.1(c) and (d) hereof shall survive the termination of this Contract, but in no event shall extend beyond fifty (50)years from the date hereof. Section 3.2. This Contract as Security for the Bonds. The parties hereto agree and intend that: -9- -#4843-7881-7375 v.12- (a) This Contract shall constitute security for the benefit of the Bondholders, and the obligations of the Consolidated Government hereunder shall be absolute and unconditional irrespective of any defense or any rights of setoff, recoupment, or counterclaim, except for payment, it may otherwise have against the Authority. The Consolidated Government agrees that it shall not (i) withhold, suspend, abate, reduce, abrogate, diminish, postpone, modify, or discontinue any payments provided for in Section 5.1 hereof; (ii) fail to observe any of its other agreements contained in this Contract; or(iii) terminate its obligations under this Contract for any contingency, act of God, event, or cause whatsoever, including, without limiting the generality of the foregoing, failure of the Developer to acquire, construct, or install any of the Properties; any change or delay in the time of availability of any of the Properties; any acts or circumstances that may impair or preclude the use or possession of any of the Properties; any defect in the title, merchantability, fitness, or condition of any of the Properties or in the suitability of any of the Properties for the Authority's purposes or needs; failure of consideration; any declaration or finding that any of the Bonds are unenforceable or invalid; the invalidity of any provision of this Contract; any acts or circumstances that may constitute an eviction or constructive eviction; the taking by eminent domain of title to or the use of all or any part of any of the Properties; commercial frustration of purpose; any change in the tax or other laws of the United States of America or of the State or any political subdivision of either thereof or in the rules or regulations of any governmental authority; or any failure of the Authority to perform and observe any agreement, whether express or implied, or any duty, liability, or obligation arising out of or connected with this Contract. Nothing contained in this Section 3.2(a)shall be construed to release the Authority from the performance of any of the agreements on its part herein contained. In the event the Authority should fail to perform any such agreement on its part, the Consolidated Government may institute such action against the Authority as the Consolidated Government may deem necessary to compel performance so long as such action does not abrogate or limit in any way the Consolidated Government's obligations hereunder. The Authority hereby agrees that it shall not take or omit to take any action that would cause this Contract to be terminated. (b) The payments to be made under Section 5.1(a) and (b) of this Contract by the Consolidated Government to the Authority will be assigned and pledged by the Authority to the Bondholders pursuant to the Bond Resolution. (c) Following the issuance of the Series 2018 Bonds, the payments to be made to the Authority by the Consolidated Government under the provisions of Section 5.1(a) and (b) of this Contract shall be made directly to the Sinking Fund Custodian for the account of the Authority. (d) This Contract may not be amended, changed, modified, altered, or terminated except as provided in the Bond Resolution. (e) As security for the payment of the Bonds, the Authority has adopted the Bond Resolution. The Consolidated Government hereby assents to the assignment and pledge made in the Bond Resolution and hereby agrees that its obligations to make all payments under this Contract shall be absolute and shall not be subject to any defense, except payment, or to any right of setoff,counterclaim,or recoupment arising out of any breach by the Authority of any obligation to the Consolidated Government, whether hereunder or otherwise, or arising out of any indebtedness or liability at any time owing to the Consolidated Government by the Authority. The Bondholders shall have all rights and remedies herein accorded to the Authority (except for -10- -#4843-7881-7375 v.12- Unassigned Rights),and any reference herein to the Authority shall be deemed,with the necessary changes in detail,to include the Bondholders, and the Bondholders are deemed to be and are third party beneficiaries of the representations, covenants, and agreements of the Consolidated Government herein contained. ARTICLE IV AUTHORITY'S OBLIGATIONS HEREUNDER Section 4.1. Issuance of Series 2018 Bonds; Application of Bond Proceeds. The Authority agrees that simultaneously with the execution and delivery hereof it will issue the Series 2018 Bonds containing the terms, including principal amounts, interest rates, and maturities, set forth in the Bond Resolution, for the purposes of financing by grant a portion of the costs of the 2018 Project and financing the costs of issuing the Series 2018 Bonds. The Authority hereby covenants and agrees that it will apply the proceeds derived from the sale of the Series 2018 Bonds as specified in Section of the Bond Resolution. Section 4.2. The Properties. The Authority agrees that simultaneously with the execution of this Contract it shall enter into the Grant Agreement with the Developer, in substantially the form presented to the Consolidated Government,under the terms of which(1)the Developer will agree to (A) acquire, construct, install, and renovate the Properties in accordance with the Development Agreement and(B) convey the properties that are the subject of the Option Agreement to the Authority upon the completion of their construction and (2) the Authority will agree to make grants to the Developer of proceeds of the Bonds to enable the Developer to pay a portion of the costs of acquiring, constructing, installing, and renovating the Properties. The Authority shall faithfully and punctually perform and observe all obligations and undertakings on its part to be performed and observed under the Grant Agreement. The Authority covenants to maintain, at all times, the validity and effectiveness of the Grant Agreement and shall take no action, shall permit no action to be taken by others, and shall not omit to take any action or permit others to omit to take any action, which action or omission might release the Developer from its liabilities or obligations under the Grant Agreement or result in the surrender, termination, amendment, or modification of,or impair the validity of,the Grant Agreement,except as provided in Section 4.6 hereof. The Authority covenants to diligently enforce all covenants, undertakings, and obligations of the Developer under the Grant Agreement, and the Authority hereby authorizes the Consolidated Government to enforce any and all of the Authority's rights under the Grant Agreement on behalf of the Authority. The Authority agrees that, if an event of default occurs and is continuing under the Grant Agreement, it shall, as directed in writing by the Consolidated Government, suspend or terminate all obligations of the Authority to make further disbursements of the Grant (as defined in the Grant Agreement) as permitted by Section 8.1(a) of the Grant Agreement or pursue or forbear from pursuing such other remedies available under the Grant Agreement as are directed in writing from time to time by the Consolidated Government. In such event, if the Consolidated Government directs the Authority to suspend or terminate all such obligations to make further disbursements of the Grant, the Authority shall promptly apply any unspent Grant moneys as directed in writing by the Consolidated Government, including, without limitation, to the retirement of Bonds prior to maturity (either by redemption or purchase) in accordance with the Bond Resolution, which shall then be credited as a prepayment toward the payments specified in Section 5.1 hereof. -11- #4843-7881-7375 v.12- Section 4.3. Additional Bonds. (a) Additional Bonds may be issued by the Authority to provide funds to pay any one or more of the following: (i)the costs of acquiring, constructing, installing, and renovating any Project as the Consolidated Government may deem necessary or desirable and as will not impair the nature of the Properties; (ii) to refund any Bonds; and (iii) the costs of the issuance and sale of the Bonds and capitalized or funded interest for such period and such other costs reasonably related to the financing as shall be agreed upon by the Consolidated Government and the Authority. (b) If the Consolidated Government is not in default hereunder, the Authority shall, on the written request of the Consolidated Government, from time to time exercise reasonable efforts to issue the amount of Additional Bonds specified by the Consolidated Government;provided that the terms of such Additional Bonds, the purchase price to be paid therefor, and the manner in which the proceeds therefrom are to be disbursed shall have been approved in writing by the Consolidated Government; and provided further that the sale of any Additional Bonds shall be the sole responsibility of the Consolidated Government; and provided further that the Consolidated Government and the Authority shall have entered into an amendment to this Contract to provide for additional payments in an amount at least sufficient to pay principal of and interest on the Additional Bonds when due and to provide for any additional terms or changes to this Contract required because of such Additional Bonds; and provided further that the Authority shall have otherwise complied with the provisions of Section of the Bond Resolution with respect to the issuance of such Additional Bonds. Section 4.4. Redemption of Bonds. The Authority, at the written request of the Consolidated Government at any time and if the Bonds are then callable or available for purchase, and if there are funds available therefor, shall forthwith take all steps that may be necessary under the applicable redemption or purchase provisions of the Bond Resolution to effect redemption or purchase of all or part of the then unpaid Bonds, as may be specified by the Consolidated Government, on the earliest date on which such redemption or purchase may be made under such applicable provisions. The Authority shall,if directed in writing by the Consolidated Government, apply payments received by the Authority pursuant to the Option Agreement to pay the redemption or purchase price of Bonds redeemed or purchased pursuant to this Section 4.4. Section 4.5. Prepayment. There is expressly reserved to the Consolidated Government the right,and the Consolidated Government is authorized and permitted,at any time it may choose, to prepay all or any part of amounts payable under Section 5.1 hereof, and the Authority agrees that the Sinking Fund Custodian may accept such prepayments when the same are tendered by the Consolidated Government. All amounts so prepaid shall at the written direction of the Consolidated Government be credited toward the payments specified in Section 5.1 hereof, in the order of their due dates, or be applied to the retirement of Bonds prior to maturity (either by redemption or purchase) in accordance with the Bond Resolution. The Consolidated Government shall also have the right to surrender Bonds acquired by it in any manner whatsoever to the Authority for cancellation,and such Bonds,upon such surrender and cancellation,shall be deemed to be paid and retired and shall be allocated as credits to amounts payable under Section 5.1 hereof as provided in the Bond Resolution. Section 4.6. Execution and Modifications of the Grant Agreement and the Development Agreement; Change Orders; Amendments to Project Development Plan. The -12- -#4843-7881-7375 v.12- Authority may not (1) execute, amend, change, modify, alter, waive, or terminate the Grant Agreement or the Development Agreement, (2) approve any change order pursuant to Section 4.5 of the Grant Agreement, or (3) approve any amendments to the Project Development Plan (as defined in the Development Agreement),without in each instance the prior written approval of the Consolidated Government. ARTICLE V CONSOLIDATED GOVERNMENT'S OBLIGATIONS HEREUNDER Section 5.1. Consolidated Government's Payment Obligations. In order to provide financial assistance to the Authority for the purpose of developing trade, commerce, industry, and employment opportunities, the Consolidated Government agrees that: (a) It shall pay to the Authority, by making such payments directly to the Sinking Fund Custodian for the account of the Authority for deposit in the Sinking Fund held under the Bond Resolution on or before the business day preceding each interest payment date with respect to the Bonds, an amount sufficient,when added to funds held at the time of such payment in the Sinking Fund, to cause the balance held therein to equal the full amount of principal of, premium, if any, and interest on the Bonds coming due on the next interest payment date. The Authority shall, if directed in writing by the Consolidated Government, deposit any payments received by the Authority pursuant to the Option Agreement and specified by the Consolidated Government in the Sinking Fund held under the Bond Resolution, in order to reduce the amount payable by the Consolidated Government pursuant to this Section 5.1(a). (b) The provisions of paragraph (a) above to the contrary notwithstanding, if, for any reason, on any interest payment date and any redemption date with respect to the Bonds, there is not on deposit in the Sinking Fund moneys sufficient to pay the total principal, interest, and premium coming due on the Bonds on such interest payment date or redemption date(whether by mandatory redemption, maturity, or otherwise), the Consolidated Government shall on such date pay to the Authority, by making such payments directly to the Sinking Fund Custodian for the account of the Authority for deposit into the Sinking Fund, an amount equal to the amount by which the total principal, interest, and premium comingdue on the Bonds (whether by mandatory redemption, maturity, or otherwise) on such interest payment date or redemption date exceeds the amount in the Sinking Fund (and not being held for the payment of Bonds not yet presented for payment or interest checks not cashed). (c) It shall also pay to the Authority an amount equal to (i) any costs incurred by the Authority in connection with the issuance of any series of Bonds to the extent such costs are not paid from proceeds of such Bonds and (ii) the fees and expenses of the Sinking Fund Custodian and any paying agents and bond registrars for the Bonds. Such additional payments shall be billed to the Consolidated Government by the Authority from time to time, together with a statement certifying that the amount billed has been incurred or paid by the Authority for one or more of the foregoing items. Amounts so billed shall be paid by the Consolidated Government within thirty (30) days after receipt of the bill by the Consolidated Government. -13- #4843-7881-7375 v.12-- Section 5.2. Source of Funds for Consolidated Government's Payment Obligations; Limitations on Additional Contracts. (a) The obligation of the Consolidated Government to make payments under this Contract shall constitute a general obligation of the Consolidated Government, payable out of any funds lawfully available to it for such purpose, from whatever source derived (including general funds). The Consolidated Government covenants and agrees that it shall,to the extent necessary, levy an annual ad valorem tax on all Taxable Property,at such rate or rates within the three (3) mill limit authorized pursuant to Section 48-5-350 of the Official Code of Georgia Annotated or within such greater millage as may hereafter be prescribed by applicable law, as may be necessary to produce in each year revenues that will be sufficient to fulfill the Consolidated Government's obligations under this Contract, from which revenues the Consolidated Government agrees to appropriate sums sufficient to pay in full when due all of the Consolidated Government's obligations under this Contract. The Consolidated Government hereby creates and grants a lien in favor of the Authority on any and all revenues realized by the Consolidated Government from such tax, to make the payments that are required under Section 5.1(a), (b), and (c) of this Contract, which lien is superior to any that can hereafter be created, except that this lien shall be on a parity basis with the lien on such revenues created by each of the Prior Lien Contracts and may be extended to cover any Additional Contracts, as permitted by Section 5.2(d)hereof. Nothing herein contained,however, shall be construed as limiting the right of the Consolidated Government to make the payments called for by this Contract out of any funds lawfully available to it for such purpose, from whatever source derived(including general funds). (b) The Consolidated Government's obligation to levy an annual ad valorem tax within the three(3)mill limit authorized by Section 48-5-350 of the Official Code of Georgia Annotated, or such greater millage hereafter authorized by law, for the purpose of providing funds to meet the Consolidated Government's payment obligations under this Contract shall not be junior and subordinate,but shall be superior or equal to the Consolidated Government's obligation to levy an annual ad valorem tax at such rate or rates within such three (3) mill limit or such greater millage as hereafter prescribed by law pursuant to the provisions of the Prior Lien Contracts and any Additional Contract. It is expressly provided, however, that the Consolidated Government shall not be required to levy a tax in any year at a rate or rates exceeding in the aggregate the maximum three (3) mills now authorized by Section 48-5-350 of the Official Code of Georgia Annotated, or any greater millage hereafter prescribed by law,in order to meet its obligations under all Contracts. It is further expressly provided that the Consolidated Government shall not be required to levy a tax in any year at a rate or rates exceeding in the aggregate the maximum millage now authorized by the Constitutional Provision, or any greater millage hereafter prescribed by law, in order to meet its obligations under the 2004 Solid Waste Authority Contract,the Prior Lien Contracts, and the Contracts. (c) So long as any of the Bonds are Outstanding(as defined in the Bond Resolution), the Consolidated Government shall not: (1) enter into an Additional Contract that creates a lien on the revenues to be derived from the tax to be levied hereunder by the Consolidated Government to fulfill its obligations hereunder, which is superior to the lien created hereunder; (2) enter into any other contract or agreement creating a lien on such tax revenues for any purpose other than debt service payments (including creation and -14- -#4843-7881-7375 v.12- maintenance of reasonable reserves therefor)superior to or on a parity with the lien created thereon to fulfill the obligations of the Consolidated Government hereunder; and (3) enter into any Additional Contract that provides for payment to be made by the Consolidated Government from moneys derived from the levy of a tax within the maximum millage now or hereafter authorized by law if each annual payment of all amounts payable with respect to debt service or that are otherwise fixed in amount or currently budgeted in amount under all Contracts then in existence, together with each annual payment to be made under the proposed Additional Contract, in each future calendar year, would exceed the amount then capable of being produced by a levy of a tax within the maximum millage now or hereafter authorized by law on the taxable value of property located within the territorial limits of the Consolidated Government subject to taxation for such purposes, as shown by the latest tax digest available immediately preceding the execution of any such Additional Contract. (d) It is further expressly provided that so long as any of the Bonds are Outstanding, the Consolidated Government shall not hereafter enter into any Additional Contract for the purpose of debt service payments (including creation and maintenance of reserves therefor), unless the amount then capable of being produced by the levy of an ad valorem tax within the maximum millage then authorized under Section 48-5-350 of the Official Code of Georgia Annotated or any successor provision on all Taxable Property as shown by the latest tax digest available immediately preceding the execution of such Additional Contract,is equal to at least one and twenty hundredths (1.20) times the maximum combined amount payable in any future calendar year with respect to debt service under all existing Contracts and any such Additional Contract. Debt service for purposes of this paragraph(d)shall mean required payments of principal,including principal to be paid through mandatory redemption, interest, and amounts required to be paid for creation and maintenance of reasonable debt service reserves and to establish and maintain mandatory investment programs, less principal and interest received or to be received from investment of any of the foregoing amounts (except funds on hand or to be on hand in any debt service reserve) required to be applied to debt service in each calendar year. The Consolidated Government shall furnish the Authority, not less than five (5) nor more than sixty (60) days prior to the date of execution and delivery of any such Additional Contract, a report of an independent certified public accountant to the effect that, based upon an affidavit of the Tax Commissioner of Richmond County as to the assessed value of Taxable Property, the requirements of this paragraph (d) have been met. Section 5.3. Continuing Disclosure. The Consolidated Government hereby covenants and agrees that it shall comply with and carry out all of the provisions of the Series 2018 Disclosure Certificate. Notwithstanding any other provision of this Contract, failure of the Consolidated Government to comply with the Series 2018 Disclosure Certificate shall not be considered an event of default or default under this Contract; however, any beneficial owner of the Series 2018 Bonds may take such actions as may be necessary and appropriate, including seeking mandamus or specific performance by court order, to cause the Consolidated Government to comply with its obligations under this Section 5.3. -15- -#4843-7881-7375 v.12- ARTICLE VI MISCELLANEOUS Section 6.1. Governing Law. This Contract and the rights and obligations of the parties hereto(including third party beneficiaries) shall be governed,construed,and interpreted according to the laws of the State of Georgia. Section 6.2. Entire Agreement. This Contract expresses the entire understanding and all agreements between the parties hereto. Section 6.3. Severability. If any provision of this Contract shall be held or deemed to be or shall, in fact, be inoperative or unenforceable as applied in any particular case in any jurisdiction or jurisdictions or in all jurisdictions,or in all cases because it conflicts with any other provision or provisions hereof or any constitution or statute or rule of public policy, or for any other reason, such circumstances shall not have the effect of rendering the provision in question inoperative or unenforceable in any other case or circumstance,or of rendering any other provision or provisions herein contained invalid, inoperative, or unenforceable to any extent whatever. The invalidity of any one or more phrases, sentences, clauses, or sections contained in this Contract shall not affect the remaining portions of this Contract or any part hereof. Section 6.4. Survival of Warranties. All agreements, representations, and warranties of the parties hereunder, or made in writing by or on behalf of them in connection with the transactions contemplated hereby, shall survive the execution and delivery hereof, regardless of any investigation or other action taken by any person relying thereon. Section 6.5. Counterparts. This Contract may be executed in several counterparts,each of which shall be an original, and all of which shall constitute but one and the same instrument. Section 6.6. Amendments in Writing. No waiver,amendment,release,or modification of this Contract shall be established by conduct, custom, or course of dealing, but solely by an instrument in writing only executed by the parties hereto in accordance with the Bond Resolution. Section 6.7. Notices. Except as otherwise specifically provided herein, any notices, demands, approvals, consents, requests, and other communications hereunder shall be in writing and shall be deemed given when the writing is delivered in person or five days after being mailed, if mailed, by certified mail, return receipt requested, postage prepaid, to the Consolidated Government and the Authority, respectively, at the addresses shown below or at such other addresses as may be furnished by the Consolidated Government or the Authority in writing from time to time: Consolidated Government: Augusta,Georgia 535 Telfair Street Augusta, Georgia 30901 Attention: Administrator,Room 900, and Finance Director,Room . -16- -#4843-7881-7375 v.12- Authority: Downtown Development Authority of the City of Augusta 936 Broad Street Suite 107 Augusta, Georgia 30901 Attention: Executive Director Section 6.8. Limitation of Rights. Nothing in this Contract, express or implied, shall give to any person, other than the parties hereto and their successors and assigns hereunder and any third party beneficiaries hereof, any benefit or any legal or equitable right, remedy, or claim under this Contract. Section 6.9. Immunity of Officials, Officers, and Employees of Authority and Consolidated Government. No recourse shall be had for the enforcement of any obligation, covenant, promise, or agreement of the Authority or the Consolidated Government contained in this Contract or for any claim based hereon or otherwise in respect hereof against any director, commissioner, officer, or employee, as such, in his individual capacity,past,present, or future, of the Authority, the Consolidated Government, or any successor body, whether by virtue of any constitutional provision,statute,or rule of law,or by the enforcement of any assessment or penalty or otherwise, it being expressly agreed and understood that this Contract is solely a corporate obligation of the Consolidated Government and the Authority payable only from the funds and assets of the Consolidated Government and the Authority herein specifically provided to be subject to such obligation and that no personal liability whatsoever shall attach to, or be incurred by, any director, commissioner, officer, or employee, as such,past,present, or future, of the Consolidated Government or the Authority, or of any successor corporation, either directly or through the Consolidated Government,the Authority, or any successor corporation,under or by reason of any of the obligations, covenants,promises, or agreements entered into between the Authority and the Consolidated Government whether contained in this Contract or in the Bond Resolution or to be implied herefrom or therefrom as being supplemental hereto or thereto, and that all personal liability of that character against every such director, commissioner, officer, and employee is, by the execution of this Contract and as a condition of and as part of the consideration for the execution of this Contract, expressly waived and released. The immunity of directors, commissioners, officers, and employees of the Authority and the Consolidated Government under the provisions contained in this Section 6.9 shall survive the termination of this Contract. [Signatures and Seals to Follow] -17- -#4843-7881-7375 v.12- IN WITNESS WHEREOF,the Consolidated Government and the Authority have caused this Contract to be executed in their respective corporate names and have caused their respective corporate seals to be hereunto affixed and attested by their duly authorized officers, all as of the day and year first above written. AUGUSTA,GEORGIA (SEAL) By: Mayor Attest: Clerk of Commission DOWNTOWN DEVELOPMENT AUTHORITY OF THE CITY OF AUGUSTA (SEAL) By: Chairman Attest: Secretary -18- -#4843-7881-7375 v.12- EXHIBIT A DOCUMENTATION SATISFYING CONDITIONS OF PRIOR LIEN CONTRACTS Executed counterparts of this documentation is included in this Closing Transcript as Document Number -#4843-7881-7375 v.12-