HomeMy Public PortalAbout100_021_Loan Paperwork - 2014 Loan/Project No. 2013L35W J
GEORGIA ENVIRONMENTAL FINANCE AUTHORITY
(a public corporation duly created and
existing under the laws of
the State of Georgia)
as Lender
and
CITY OF TYBEE ISLAND
(a public body corporate and politic duly created and existing
under the laws of the State of Georgia)
as Borrower
LOAN AGREEMENT
LOAN AGREEMENT
Wier
This LOAN AGREEMENT (this "Agreement'') dated
20 , by and between CITY OF TYBEE ISLAND, a Georgia
PATE_
and politic (the "Borrower"), whose address for purposes of thi 4
403 Butler Avenue, Tybee Island, Georgia 31328,
ENVIRONMENTAL FINANCE AUTHORITY, a Georgia
"Lender"), whose address for purposes of this Agreement shall be 233 Peachtree
Street, N.E., Peachtree Center-Harris Tower, Suite 900, Atlanta, GA 30303-1506.
1. Background -The Lender desires to loan to the Borrower ONE MILLION
SIX HUNDRED NINETY-FIVE THOUSAND DOLLARS AND ZERO CENTS
($1,695,000) from the Georgia Fund (the "Fund") to finance the costs of acquiring,
constructing, and installing the environmental facilities described in Exhibit A attached
hereto (the "Project"). The Environmental Protection Division ("EPD") of the
Department of Natural Resources of the State of Georgia has completed all existing
statutory reviews and approvals with respect to the Project, as required by Section 50-
23-9 of the Official Code of Georgia Annotated, and has approved or will approve the
detailed plans and specifications (the "Plans and Specifications") for the Project
prepared or to be prepared by the Borrower's engineer (the "Engineer"), which may be
amended from time to time by the Borrower but subject to the approval of the EPD.
2. Loan - Subject to the terms and conditions of this Agreement, the Lender
agrees to make the following loan or loans (collectively, the "Loan") available to the
Borrower:
(a) The Lender agrees to advance to the Borrower, on or prior to the earlier of
(1) the Completion Date (as hereinafter defined), (2) January 1, 2016, or (3) the date
that the loan evidenced by this Note is fully disbursed, the Loan in a principal amount of
up to $1,695,000 which Loan may be disbursed in one or more advances but each such
disbursement shall reduce the Lender's loan commitment hereunder and any sums
advanced hereunder may not be repaid and then re-borrowed.
(b) The Lender's commitment in paragraph (a) above to make advances to the
Borrower shall be a limited obligation of the Lender, to be funded solely from available
moneys in the Fund and from no other source of funds, including other funds of the
Lender.
(c) The Borrower's obligation to pay the Lender the principal of and interest on
the Loan shall be evidenced by the records of the Lender and by the Note described
below.
3. Note - The Loan shall be evidenced by the Promissory Note, dated this date,
executed by the Borrower in favor of the Lender in an original stated principal amount
equal to the maximum amount of the Loan as described above (the "Note," which term
shall include any extensions, renewals, modifications, or replacements thereof). The
Note shall be in substantially the form attached to this Agreement as Exhibit B.
4, Interest, Fees, and Other Charges - In consideration of the Loan, the
Borrower shall pay the Lender the following interest, fees, and other charges:
(a) The Loan shall bear interest at the rate or rates per annum specified in the
Note and such interest shall be calculated in the manner specified in the Note.
(b) The Borrower agrees to pay all reasonable out-of-pocket costs and
expenses of the Lender incurred in connection with its negotiation, structuring,
documenting, and closing the Loan, including, without limitation, the reasonable fees
and disbursements of counsel for the Lender. The Borrower agrees to pay all
reasonable out-of-pocket costs and expenses of the Lender incurred in connection with
its administration or modification of, or in connection with the preservation of its rights
under, enforcement of, or any refinancing, renegotiation, restructuring, or termination of,
any Credit Document (as hereinafter defined) or any instruments referred to therein or
any amendment, waiver, or consent relating thereto, including, without limitation, the
reasonable fees and disbursements of counsel for the Lender. Such additional loan
payments shall be billed to the Borrower by the Lender from time to time, together with
a statement certifying that the amount billed has been incurred or paid by the Lender for
one or more of the above items. Amounts so billed shall be paid by the Borrower within
thirty(30) days after receipt of the bill by the Borrower.
(c) In the event the Borrower fails to request any advances under the Loan
within six (6) months after the dated date of this Agreement, the Borrower shall pay the
Lender a fee equal to the Lender's Loan Continuation Fee, as published from time to
time in the Lender's fee schedules, if the Lender requests the Borrower to pay such fee
in writing within twelve (12) months after the dated date of this Agreement, such fee to
be payable within fifteen (15) days of such written request.
(d) The Borrower shall pay the Lender an origination fee for the loan in the
amount of one percent (1%) of the maximum amount of the Loan, payable on the dates
specified by the Lender on not less than thirty (30) days written advance notice.
5. Prepayment -The Loan shall be prepayable in accordance with the terms
and conditions of the Note.
6. Authorized Borrower Representative and Successors - The Borrower
shall designate a person to act on behalf of the Borrower under this Agreement (the
"Authorized Borrower Representative") by written certificate furnished to the Lender,
containing the specimen signature of such person and signed on behalf of the Borrower
by its chief executive officer. Such certificate or any subsequent or supplemental
certificate so executed may designate an alternate or alternates. In the event that any
person so designated and his alternate or alternates, if any, should become unavailable
or unable to take any action or make any certificate provided for or required in this
Agreement, a successor shall be appointed in the same manner.
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7. Conditions to the Loan - At the time of the making of each advance under
the Loan by the Lender to the Borrower under this Agreement (each an "Advance"),
the following conditions shall have been fulfilled to the Lender's satisfaction:
(a) This Agreement and the Note shall have been duly executed and delivered
by all required parties thereto and in form and substance satisfactory to the Lender, and
the Lender shall have received (1) a signed opinion of counsel to the Borrower,
substantially in the form of Exhibit E attached hereto, and (2) a certified copy of the
resolution adopted by the Borrower's governing body, substantially in the form of Exhibit
F attached hereto.
(b) There shall then exist no Event of Default under this Agreement (or other
event that, with the giving of notice or passage of time, or both, would constitute such
an Event of Default).
(c) All representations and warranties by the Borrower in this Agreement and
the Note (collectively the "Credit Documents") shall be true and correct in all material
respects with the same effect as if such representations and warranties had been made
on and as of the date of such advance.
(d) Since the date of the most recent annual financial statements of the
Borrower delivered to the Lender, there shall have been no material adverse change in
the financial condition, assets, management, control, operations, or prospects of the
Borrower.
(e) The Advance to be made and the use of the proceeds thereof shall not
violate any applicable law, regulation, injunction, or order of any government or court.
(f) When the Project budget included as part of Exhibit A indicates that the
Loan will finance less than all of the costs of the Project or a category of costs of the
Project, the Advance to be made shall not cause the percentage of such Project costs
funded to date by the Loan to exceed the total percentage of such Project costs
budgeted to be funded by the Loan.
(g) The Borrower shall submit requests for Advances not more frequently than
monthly and at least 21 days before the requested disbursement date.
(h) The Advance to be made and the use of the proceeds thereof shall be
limited to payment of costs of the Project set forth in the Project budget included as part
of Exhibit A and contemplated by the Plans and Specifications approved by the EPD.
(i) There shall be filed with the Lender:
(1) A requisition for such Advance, stating the amount to be disbursed.
(2) A certificate executed by the Authorized Borrower Representative
attached to the requisition and certifying:
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(A) that an obligation in the stated amount has been incurred by the
Borrower and that the same is a cost of the Project and is presently due and
payable or has been paid by the Borrower and is reimbursable hereunder
and stating that the bill or statement of account for such obligation, or a copy
thereof, is attached to the certificate;
(B) that the Borrower has no notice of any vendor's, mechanic's, or
other liens or rights to liens, chattel mortgages, or conditional sales contracts
that should be satisfied or discharged before such payment is made; and
(C) that each item on such requisition has not been paid or
reimbursed, as the case may be, and such requisition contains no item
representing payment on account of any retained percentages that the
Borrower is, at the date of any such certificate, entitled to retain or payment
for labor performed by employees of the Borrower.
(j) The completed construction on the Project shall be reviewed (at the time
each requisition is submitted) by the Engineer, and the Engineer shall certify to the
Lender as to (A) the cost of completed construction, (B) the percentage of completion,
and (C) compliance with the Plans and Specifications.
8. Representations and Warranties - The Borrower hereby represents and
warrants to the Lender:
(a) Creation and Authority. The Borrower is a public body corporate and politic
duly created and validly existing under the laws of the State of Georgia and has all
requisite power and authority to execute and deliver the Credit Documents and to
perform its obligations thereunder.
(b) Pending Litigation. Except as disclosed in writing to the Lender, there are no
actions, suits, proceedings, inquiries, or investigations pending or, to the knowledge of
the Borrower, after making due inquiry with respect thereto, threatened against or
affecting the Borrower in any court or by or before any governmental authority or
arbitration board or tribunal, which involve the possibility of materially and adversely
affecting the properties, activities, prospects, profits, operations, or condition (financial
or otherwise) of the Borrower, or the ability of the Borrower to perform its obligations
under the Credit Documents, or the transactions contemplated by the Credit Documents
or which, in any way, would adversely affect the validity or enforceability of the Credit
Documents or any agreement or instrument to which the Borrower is a party and which
is used or contemplated for use in the consummation of the transactions contemplated
hereby or thereby, nor is the Borrower aware of any facts or circumstances presently
existing that would form the basis for any such actions, suits, or proceedings. Except as
disclosed in writing to the Lender, the Borrower 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.
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(c) Credit Documents are Legal and Authorized. The execution and delivery by
the Borrower of the Credit Documents, the consummation of the transactions therein
contemplated, and the fulfillment of or the compliance with all of the provisions thereof
(i) are within the power, legal right, and authority of the Borrower; (ii) are legal and will
not conflict with or constitute on the part of the Borrower 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 Borrower is a party or by which the Borrower 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 Borrower or any of its activities or properties; and (iii) have
been duly authorized by all necessary and appropriate official action on the part of the
governing body of the Borrower. The Credit Documents are the valid, legal, binding,
and enforceable obligations of the Borrower. The officials of the Borrower executing the
Credit Documents are duly and properly in office and are fully authorized and
empowered to execute the same for and on behalf of the Borrower.
(d) Governmental Consents. Neither the Borrower nor any of its activities or
properties, nor any relationship between the Borrower and any other person, nor any
circumstances in connection with the execution, delivery, and performance by the
Borrower of its obligations under the Credit Documents, 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 Borrower
in connection with the execution, delivery, and performance of the Credit Documents or
the consummation of any transaction therein contemplated, 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 Borrower, after making due inquiry with respect
thereto, the Borrower 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 Borrower is legally required to obtain the same.
(e) No Defaults. No event has occurred and no condition exists that would
constitute an Event of Default or that, with the lapse of time or with the giving of notice
or both, would become an Event of Default. To the knowledge of the Borrower, after
making due inquiry with respect thereto, the Borrower 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, except as disclosed in writing to the Lender.
(f) Compliance with Law. To the knowledge of the Borrower, after making due
inquiry with respect thereto, the Borrower is not in violation of any laws, ordinances, or
governmental rules or regulations to which it or its properties are subject and has not
failed to obtain any licenses, permits, franchises, or other governmental authorizations
(which are presently obtainable) necessary to the ownership of its properties or to the
conduct of its affairs, which violation or failure to obtain might materially and adversely
affect the properties, activities, prospects, profits, and condition (financial or otherwise)
of the Borrower, and there have been no citations, notices, or orders of noncompliance
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issued to the Borrower under any such law, ordinance, rule, or regulation, except as
disclosed in writing to the Lender.
(g) Restrictions on the Borrower. The Borrower is not a party to or bound by
any contract, instrument, or agreement, or subject to any other restriction, that
materially and adversely affects its activities, properties, assets, operations, or condition
(financial or otherwise), except as disclosed in writing to the Lender. The Borrower is
not a party to any contract or agreement that restricts the right or ability of the Borrower
to incur indebtedness for borrowed money or to enter into loan agreements, except as
disclosed in writing to the Lender. Any contract or agreement of the Borrower that
pledges the revenues of the Borrower permits such pledged revenues to be used to
make payments due under the Credit Documents.
(h) Disclosure. The representations of the Borrower contained in this
Agreement and any certificate, document, written statement, or other instrument
furnished by or on behalf of the Borrower to the Lender 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 Borrower has not
disclosed to the Lender in writing that materially and adversely affects or in the future
may (so far as the Borrower can now reasonably foresee) materially and adversely
affect the acquisition, construction, and installation of the Project or the properties,
activities, prospects, operations, profits, or condition (financial or otherwise) of the
Borrower, or the ability of the Borrower to perform its obligations under the Credit
Documents or any of the documents or transactions contemplated hereby or thereby or
any other transactions contemplated by this Agreement, which has not been set forth in
writing to the Lender or in the certificates, documents, and instruments furnished to the
Lender by or on behalf of the Borrower prior to the date of execution of this Agreement
in connection with the transactions contemplated hereby.
(i) Project Compliance. The Project complies or will comply with all presently
applicable building and zoning, health, environmental, and safety ordinances and laws
and all other applicable laws, rules, and regulations of any and all governmental and
quasi-governmental authorities having jurisdiction over any portion of the Project.
(j) Financial Statements. The financial statements of the Borrower that have
been provided to the Lender in connection with the Loan present fairly the financial
position of the Borrower as of the date thereof and the results of its operations and its
cash flows of its proprietary fund types for the period covered thereby, all in conformity
with generally accepted accounting principles (subject to normal year-end adjustments
in the case of interim statements). Since the date of the most recent annual financial
statements for the Borrower delivered to the Lender in connection with the Loan, there
has been no material adverse change in the Borrower's financial condition, assets,
management, control, operations, or prospects.
(k) Reaffirmation. Each request by the Borrower for an advance under the Loan
shall constitute a representation and warranty by the Borrower to the Lender that the
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foregoing statements are true and correct on the date of the request and after giving
effect to such advance.
(I) Borrower's Tax Certificate. The representations and warranties of the
Borrower set forth in the Borrower's Tax Certificate, dated the date hereof, are hereby
incorporated herein and made a part hereof by this reference thereto, as if fully set forth
herein, and are true and correct as of the date hereof.
9. Security for Payments under Credit Documents - (a) As security for the
payments required to be made and the obligations required to be performed by the
Borrower under the Credit Documents, the Borrower hereby pledges to the Lender its
full faith and credit and revenue-raising power (including its taxing power) for such
payment and performance. The Borrower covenants that, in order to make any
payments required by the Credit Documents when due from its funds to the extent
required hereunder, it will exercise its power of taxation and its power to set rates, fees,
and charges to the extent necessary to pay the amounts required to be paid under the
Credit Documents and will make available and use for such payments all rates, fees,
charges, and taxes levied and collected for that purpose together with funds received
from any other sources. The Borrower further covenants and agrees that in order to
make funds available for such purpose in each fiscal year, it will, in its revenue,
appropriation, and budgetary measures through which its tax funds or revenues and the
allocation thereof are controlled or provided for, include sums sufficient to satisfy any
such payments that may be required to be made under the Credit Documents, whether
or not any other sums are included in such measure, until all payments so required to
be made under the Credit Documents shall have been made in full. The obligation of
the Borrower to make any such payments that may be required to be made from its
funds shall constitute a general obligation of the Borrower and a pledge of the full faith
and credit of the Borrower to provide the funds required to fulfill any such obligation. In
the event for any reason any such provision or appropriation is not made as provided in
this Section 9, then the fiscal officers of the Borrower are hereby authorized and
directed to set up as an appropriation on their accounts in the appropriate fiscal year the
amounts required to pay the obligations that may be due from the funds of the
Borrower. The amount of such appropriation shall be due and payable and shall be
expended for the purpose of paying any such obligations, and such appropriation shall
have the same legal status as if the Borrower had included the amount of the
appropriation in its revenue, appropriation, and budgetary measures, and the fiscal
officers of the Borrower shall make such payments required by the Credit Documents to
the Lender if for any reason the payment of such obligations shall not otherwise have
been made.
(b) The Borrower covenants and agrees that it shall, to the extent necessary,
levy an annual ad valorem tax on all taxable property located within the territorial or
corporate limits of the Borrower, as now existent and as the same may hereafter be
extended, at such rate or rates, within any limitations that may be prescribed by law, as
may be necessary to produce in each year revenues that will be sufficient to fulfill the
Borrower's obligations under the Credit Documents, from which revenues the Borrower
agrees to appropriate sums sufficient to pay in full when due all of the Borrower's
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obligations under the Credit Documents. Nothing herein contained, however, shall be
construed as limiting the right of the Borrower to make the payments called for by the
Credit Documents out of any funds lawfully available to it for such purpose, from
whatever source derived (including general funds or enterprise funds).
10. Borrower Covenants - The Borrower agrees to comply with the following
covenants so long as this Agreement is in effect:
(a) Information. The Borrower shall deliver to the Lender, within 180 days after
the end of each fiscal year, an electronic copy of the financial statements required under
state audit requirements (O.C.G.A. § 38-81-7). Borrower's annual financial statements
shall be prepared in accordance with generally accepted accounting principles and
otherwise in form and substance satisfactory to the Lender, which financial statements
shall be accompanied by a certificate of the Borrower (1) to the effect that the Borrower
is not in default under any provisions of the Credit Documents and has fully complied
with all of the provisions thereof, or if the Borrower is in default or has failed to so
comply, setting forth the nature of the default or failure to comply, and (2) stating the
Fixed Charges Coverage Ratio, the Fixed Charges, and the Income Available for Fixed
Charges of the Borrower for the fiscal year. The Borrower also shall promptly provide
the Lender (A) upon receipt thereof, a copy of each other report submitted to the
Borrower by its accountants in connection with any annual, interim, or special audit
made by them of the books of the Borrower (including, without limitation, any
management report prepared in connection with such accountants' annual audit of the
Borrower) and (B) with such other information relating to the Borrower and the Project
as the Lender may reasonably request from time to time.
(b) Access to Property and Records. The Borrower agrees that the Lender, the
EPD, and their duly authorized representatives and agents shall have the right, upon
reasonable prior notice, to enter the Borrower's property at all reasonable times for the
purpose of examining and inspecting the Project, including any construction or
renovation thereof. The Borrower shall keep accurate and complete records and books
of account with respect to its activities in which proper entries are made in accordance
with generally accepted accounting principles reflecting all of its financial transactions.
The Lender and the EPD shall also have the right at all reasonable times to examine
and make extracts from the books and records of the Borrower, insofar as such books
and records relate to the Project or insofar as necessary to ascertain compliance with
this Agreement, and to discuss with the Borrower's officers, employees, accountants,
and engineers the Project and the Borrower's activities, assets, liabilities, financial
condition, results of operations, and financial prospects.
(c) Agreement to Acquire, Construct, and Install the Protect. The Borrower
covenants to cause the Project to be acquired, constructed, and installed without
material deviation from the Plans and Specifications and warrants that the acquisition,
construction, and installation of the Project without material deviation from the Plans
and Specifications will result in facilities suitable for use by the Borrower and that all real
and personal property provided for therein is necessary or appropriate in connection
with the Project. The Borrower may make changes in or additions to the Plans and
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Specifications; provided, however, changes in or additions to the Plans and
Specifications that are material shall be subject to the prior written approval of the
Engineer and the EPD. The Borrower agrees to complete the acquisition, construction,
and installation of the Project as promptly as practicable and with all reasonable
dispatch after the date of this Agreement. Without limiting the foregoing sentence, the
Borrower shall commence and complete each activity or event by the deadline stated in
the Project Schedule included as part of Exhibit A attached hereto. The Borrower shall
comply with the bidding and preconstruction requirements set forth in Exhibit C attached
hereto.
(d) Establishment of Completion Date. The date of completion of the
acquisition, construction, and installation of the Project (the "Completion Date") shall
be evidenced to the Lender and the EPD by a certificate of completion signed by the
Authorized Borrower Representative and approved by the Engineer, stating that
construction of the Project has been completed without material deviation from the
Plans and Specifications and all labor, services, materials, and supplies used in such
construction have been paid or provided for. Notwithstanding the foregoing, such
certificate may state that it is given without prejudice to any rights against third parties
that exist at the date of such certificate or that may subsequently come into being. It
shall be the duty of the Borrower to cause the certificate contemplated by this paragraph
to be furnished as soon as the construction of the Project shall have been completed.
(e) Indemnity. (1) To the extent provided by law, in addition to the other
amounts payable by the Borrower under this Agreement (including, without limitation,
Section 4 hereof), the Borrower hereby agrees to pay and indemnify the Lender from
and against all claims, liabilities, losses, costs, and expenses (including, without
limitation, reasonable attorneys' fees and expenses) that the Lender may (other than as
a result of the gross negligence or willful misconduct of the Lender) incur or be
subjected to as a consequence, directly or indirectly, of(i) any actual or proposed use of
any proceeds of the Loan or the Borrower's entering into or performing under any Credit
Document, (ii) any breach by the Borrower of any representation, warranty, covenant, or
condition in, or the occurrence of any other default under, any of the Credit Documents,
including without limitation all reasonable attorneys' fees or expenses resulting from the
settlement or defense of any claims or liabilities arising as a result of any such breach or
default, (iii) allegations of participation or interference by the Lender in the management,
contractual relations, or other affairs of the Borrower, (iv) allegations that the Lender has
joint liability with the Borrower to any third party as a result of the transactions
contemplated by the Credit Documents, (v) any suit, investigation, or proceeding as to
which the Lender is involved as a consequence, directly or indirectly, of its execution of
any of the Credit Documents, the making of the Loan, or any other event or transaction
contemplated by any of the Credit Documents, or (vi) the conduct or management of or
any work or thing done on the Project and any condition of or operation of the Project.
(2) Nothing contained in this paragraph (e) shall require the Borrower to
indemnify the Lender for any claim or liability that the Borrower was not given any
opportunity to contest or for any settlement of any such action effected without the
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Borrower's consent. The indemnity of the Lender contained in this paragraph (e) shall
survive the termination of this Agreement.
(f) Fixed Charges Coverage Ratio. The Borrower shall not permit the Fixed
Charges Coverage Ratio for any fiscal year to be less than 1.05. The following terms
are defined terms for purposes of this Agreement;
"Fixed Charges" means, for any period, the sum of all cash outflows that
the Borrower cannot avoid without violating the Borrower's long-term contractual
obligations (those obligations that extend for a period greater than one year, determined
in accordance with generally accepted accounting principles) and that are accounted for
in the enterprise fund containing the Borrower's water or sewer operations, including,
but not limited to, (i) interest on long-term debt, determined in accordance with generally
accepted accounting principles, (ii) payments under long-term leases (whether
capitalized or operating), and (iii) scheduled payments of principal on long-term debt.
"Fixed Charges Coverage Ratio" means, for any period, the ratio of
Income Available for Fixed Charges to Fixed Charges.
"Income Available For Fixed Charges" means, for any period, net income
of the Borrower, plus amounts deducted in arriving at such net income for (i) interest on
long-term debt (including the current portion thereof), (ii) depreciation, (iii) amortization,
(iv) payments under long-term leases, and (v) transfers to other funds of the Borrower.
(g) Tax Covenants. The Borrower covenants that it will not take or omit to take
any action nor permit any action to be taken or omitted that would cause the interest on
the Note to become includable in the gross income of any owner thereof for federal
income tax purposes. The Borrower further covenants and agrees that it shall comply
with the representations and certifications it made in its Borrower's Tax Certificate dated
the date hereof and that it shall take no action nor omit to take any action that would
cause such representations and certifications to be untrue.
11. Events of Default and Remedies —(a) Each of the following events shall
constitute an Event of Default under this Agreement:
(1) Failure by the Borrower to make any payment with respect to the Loan
(whether principal, interest, fees, or other amounts) when and as the same becomes
due and payable (whether at maturity, on demand, or otherwise); or
(2) The Borrower shall (A) apply for or consent to the appointment of or
the taking of possession by a receiver, custodian, trustee, or liquidator of the Borrower
or of all or a substantial part of the property of the Borrower; (B) admit in writing the
inability of the Borrower, or be generally unable, to pay the debts of the Borrower as
such debts become due; (C) make a general assignment for the benefit of the creditors
of the Borrower; (D) commence a voluntary case under the federal bankruptcy law (as
now or hereafter in effect); (E) file a petition seeking to take advantage of any other law
relating to bankruptcy, insolvency, reorganization, winding-up, or composition or
adjustment of debts; (F) fail to controvert in a timely or appropriate manner, or
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acquiesce in writing to, any petition filed against the Borrower in an involuntary case
under such federal bankruptcy law; or (G) take any action for the purpose of effecting
any of the foregoing; or
(3) A proceeding or case shall be commenced, without the application of
the Borrower, in any court of competent jurisdiction, seeking (A) the liquidation,
reorganization, dissolution, winding-up, or composition or readjustment of debts of the
Borrower; (B) the appointment of a trustee, receiver, custodian, liquidator, or the like of
the Borrower or of all or any substantial part of the assets of the Borrower; or (C) similar
relief in respect of the Borrower under any law relating to bankruptcy, insolvency,
reorganization, winding-up, or composition and adjustment of debts, and such
proceeding or case shall continue undismissed, or an order, judgment, or decree
approving or ordering any of the foregoing shall be entered and continue in effect, for a
period of sixty (60) days from commencement of such proceeding or case or the date of
such order, judgment, or decree, or any order for relief against the Borrower shall be
entered in an involuntary case or proceeding under the federal bankruptcy law; or
(4) Any representation or warranty made by the Borrower in any Credit
Document shall be false or misleading in any material respect on the date as of which
made (or deemed made); or
(5) Any default by the Borrower shall occur in the performance or
observance of any term, condition, or provision contained in any Credit Document and
not referred to in clauses (1) through (4) above, which default shall continue for thirty
(30) days after the Lender gives the Borrower written notice thereof; or
(6) Any material provision of any Credit Document shall at any time for any
reason cease to be valid and binding in accordance with its terms on the Borrower, or
the validity or enforceability thereof shall be contested by the Borrower, or the Borrower
shall terminate or repudiate (or attempt to terminate or repudiate) any Credit Document;
or
(7) Default in the payment of principal of or interest on any other obligation
of the Borrower for money borrowed (or any obligation under any conditional sale or
other title retention agreement or any obligation secured by purchase money mortgage
or deed to secure debt or any obligation under notes payable or drafts accepted
representing extensions of credit or on any capitalized lease obligation), or default in the
performance of any other agreement, term, or condition contained in any contract under
which any such obligation is created, guaranteed, or secured if the effect of such default
is to cause such obligation to become due prior to its stated maturity; provided that in
each and every case noted above the aggregate then outstanding principal balance of
the obligation involved (or all such obligations combined) must equal or exceed
$100,000; or
(8) Default in the payment of principal of or interest on any obligation of
the Borrower for money borrowed from the Lender (other than the Loan) or default in
the performance of any other agreement, term, or condition contained in any contract
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under which any such obligation is created, guaranteed, or secured if the effect of such
default is to entitle the Lender to then cause such obligation to become due prior to its
stated maturity (the parties intend that a default may constitute an Event of Default
under this paragraph (8) even if such default would not constitute an Event of Default
under paragraph (7) immediately above); or
(9) The dissolution of the Borrower; or
(10) Any material adverse change in the Borrower's financial condition or
means or ability to perform under the Credit Documents; or
(11) The occurrence of any other event as a result of which the Lender in
good faith believes that the prospect of payment in full of the Loan is impaired.
(b) Upon the occurrence of an Event of Default, the Lender, at its option, without
demand or notice of any kind, may declare the Loan immediately due and payable,
whereupon all outstanding principal and accrued interest shall become immediately due
and payable.
(c) Upon the occurrence of an Event of Default, the Lender, without notice or
demand of any kind, may from time to time take whatever action at law or in equity or
under the terms of the Credit Documents may appear necessary or desirable to collect
the Loan and other amounts payable by the Borrower hereunder then due or thereafter
to become due, or to enforce performance and observance of any obligation,
agreement, or covenant of the Borrower under the Credit Documents.
(d) In the event of a failure of the Borrower to pay any amounts due to the
Lender under the Credit Documents within 15 days of the due date thereof, the Lender
shall perform its duty under Section 50-23-20 of the Official Code of Georgia Annotated
to notify the state treasurer of such failure, and the Lender may apply any funds allotted
to the Borrower that are withheld pursuant to Section 50-23-20 of the Official Code of
Georgia Annotated to the payment of the overdue amounts under the Credit
Documents.
(e) Upon the occurrence of an Event of Default, the Lender may, in its
discretion, by wriften notice to the Borrower, terminate its remaining commitment (if any)
hereunder to make any further advances of the Loan, whereupon any such commitment
shall terminate immediately.
12. Assignment or Sale by Lender - (a) The Credit Documents, and the
obligation of the Borrower to make payments thereunder, may be sold, assigned, or
otherwise disposed of in whole or in part to one or more successors, grantors, holders,
assignees, or subassignees by the Lender. Upon any sale, disposition, assignment, or
reassignment, the Borrower shall be provided with a notice of such assignment. The
Borrower shall keep a complete and accurate register of all such assignments in form
necessary to comply with Section 149(a) of the Internal Revenue Code of 1986, as
amended.
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(b) The Borrower agrees to make all payments to the assignee designated in
the assignment, notwithstanding any claim, defense, setoff, or counterclaim whatsoever
that the Borrower may from time to time have against the Lender. The Borrower agrees
to execute all documents, including notices of assignment, which may be reasonably
requested by the Lender or its assignee to protect its interests in the Credit Documents.
(c) The Borrower hereby agrees that the Lender may sell or offer to sell the
Credit Documents (i) through a certificate of participation program, whereby two or more
interests are created in the Credit Documents or the payments thereunder or (ii) with
other similar instruments, agreements, and obligations through a pool, trust, limited
partnership, or other entity.
13. Miscellaneous - (a) This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Georgia, exclusive of such state's rules
regarding choice of law.
(b) This Agreement shall be binding upon and shall inure to the benefit of the
Borrower, the Lender, and their respective heirs, legal representatives, successors, and
assigns, but the Borrower may not assign or transfer any of its rights or obligations
hereunder without the express prior written consent of the Lender.
(c) This Agreement may not be waived or amended except by a writing signed
by authorized officials of the Lender and the borrower.
(d) This Agreement shall be effective on the date on which the Borrower and the
Lender have signed one or more counterparts of it and the Lender shall have received
the same, provided the Lender receives the same executed by the Borrower by
September 18, 2014. At such time as the Lender is no longer obligated under this
Agreement to make any further advances under the Loan and all principal, interest, or
other amounts owing with respect to the Loan and hereunder have been finally and
irrevocably repaid by the Borrower to the Lender, this Agreement shall terminate.
(e) All notices, certificates, requests, demands, or other communications
hereunder shall be sufficiently given and shall be deemed given upon receipt, by hand
delivery, mail, overnight delivery, telecopy, or other electronic means, addressed as
provided at the beginning of this Agreement. Any party to this Agreement may, by
notice given to the other party, designate any additional or different addresses to which
subsequent notices, certificates, or other communications shall be sent. For purposes
of this Section, "electronic means" shall mean telecopy or facsimile transmission or
other similar electronic means of communication that produces evidence of
transmission.
(f) This Agreement may be executed in one or more counterparts.
(g) All pronouns used herein include all genders and all singular terms used
herein include the plural (and vice versa).
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(h) In the event any provision of this Agreement shall be held invalid or
unenforceable by any court of competent jurisdiction, such holding shall not invalidate or
render unenforceable any other provision hereof.
(i) Statements in Exhibit D attached hereto shall govern the matters they
address.
(j) This Agreement and the Note constitute the entire agreement between the
Borrower and the Lender with respect to the Loan and supersede all prior agreements,
negotiations, representations, or understandings between such parties with respect to
such matters.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered b their respective officials hereunto duly authorized as of
the date first above written.
CITY OF TYBEE ISLAND
lie
Approved as to form: Signature:
Print Name:_
By: .—
Borrower's Attorney Title:
(SEAL)
Attest Signature:
Print Name:
Title:
GEORGIA ENVIRONMENTAL FINANCE
AUTHORITY
Signature:
Kevin Clark
Executive Director
(SEAL)
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EXHIBIT A
PAGE 1 OF 3
DESCRIPTION OF THE PROJECT
SCOPE OF WORK.
Recipient: CITY OF TYBEE ISLAND
Loan Number: 2013L35WJ
The project consists of water and sewer systems improvements throughout the city.
This includes the replacement of existing 8" and 6" AC water main with new C-900 PC
water main and replacement of 12" ductile iron pipe (DIP) force main with new C900
PVC force main and related appurtenances.