HomeMy Public PortalAboutGEFA DW2016045Loan/Project No. DW2016045
Catalog of Federal Domestic Assistance (CFDA): # 66.458
DRINKING WATER STATE REVOLVING FUND, ADMINISTERED BY 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
DidNOT
This LOAN AGREEMENT (this "Agreement") dated DATE THIS
20 by and between CITY OF TYBEE ISLAND, a Georgia p
politic (the "Borrower"), whose address for purposes of this PALIGE
BUTLER AVENUE, TYBEE ISLAND, GA 31328, and the DRI
REVOLVING FUND, ADMINISTERED BY GEORGIA ENVIRONMENTAL FINANCE -
AUTHORITY, a Georgia public corporation (the "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
THREE HUNDRED SIXTY-ONE THOUSAND DOLLARS AND ZERO CENTS
($1,361,000) from the Drinking Water State Revolving Fund, Administered by Georgia
Environmental Finance Authority (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) APRIL 1, 2018, or (3) the date that the
loan evidenced by this Note is fully disbursed, the Loan in a principal amount of up to
$1,361,000 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
-2-
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.
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 certified copy of the resolution adopted by the Borrower's
governing body, substantially in the form of Exhibit F attached hereto, and (2) a signed
opinion of counsel to the Borrower, substantially in the form of Exhibit E 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:
-3-
(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.
Q) 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.
me
(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
-5-
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) Proiect 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.
Q) 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). Additionally, the Borrower agrees that all future financial
statements that are required to be submitted to the Authority will be prepared in conformity
with generally accepted accounting principles, including infrastructure provisions of
GASB 34. 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.
101
(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
foregoing statements are true and correct on the date of the request and after giving effect
to such advance.
(1) 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 Pavments 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
-7-
appropriate sums sufficient to pay in full when due all of the Borrower's 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. § 36-81-7). 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 Project. 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
12
Project. The Borrower may make changes in or additions to the Plans and 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
ME
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 acquiesce in writing to,
-10-
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 anytime 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 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
-11-
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 written 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.
(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
-12-
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 JULY 23,
2017. 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 parry, 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).
(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.
-13-
(i) Statements in Exhibit D attached hereto shall govern the matters they
address.
Q) 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 by their respective officials hereunto duly authorized as of
the date first above written.
CITY OF TYBEE ISLAND
Approved as to form: Signature
Print NamQ S%��
•aBy: IA L,
Borrower's Attorney Title: / ,Vrxt-
(SEAL) c o
Attest Signature:4-.-._t/,1�_t-G-�-,
Print Name: ! 4AJkE>- 4e1EV in1e-7e
Title:�, /' v [C --
DRINKING WATER STATE REVOLVING FUND,
ADMINISTERED BY GEORGIA
ENVIRONMENTAL FINANCE AUTHORITY
Signature:
Kevin Clark
Executive Director
(SEAL)
14-
EPRA
ELLIS. PAINTER PLATTER REE &ADAMS LLP
February 24, 2017
Drinking Water State Revolving Fund, Administered
By Georgia Environmental Finance Authority
233 Peachtree Street, NE
Harris Tower, Suite 900
Atlanta, GA 30303-1506
Ladies and Gentlemen:
EDwARD M. HUGHES
EMAIL: BBHGBES@FPRA-LAW.COM
DIRECT DIAL: 912-231-2720
W W W.EPRA-LAW.COM
As counsel for the CITY OF TYBEE ISLAND (the `Borrower"), I have examined duly
executed originals of the Loan Agreement (the "Loan Agreement"), Loan/Project No.
DW2016045, between the Borrower and Georgia Environmental Finance Authority (the
"Lender"), the related Promissory Note (the "Note") of the Borrower, the proceedings taken by
the Borrower to authorize the Loan Agreement and the Note (collectively, the "Credit
Documents"), and such other documents, records and proceedings as I have deemed relevant or
material to render this opinion and, based upon such examination, I am of the opinion, as of the
date hereof, that:
The Borrower is a public body corporate and politic, duly created and validly
existing under the laws of the State of Georgia.
2. The Credit Documents have been duly authorized, executed and delivered by the
Borrower and are legal, valid and binding obligations of the Borrower, enforceable in accordance
with their terms.
3. To the best of my knowledge, no litigation is pending or threatened in any court
or other tribunal, state or federal, in any way questioning or affecting the validity of the Credit
Documents.
4. To the best of my knowledge, the execution, delivery and performance by the
Borrower of the Credit Documents will not conflict with, breach, or violate any law, any order,
or judgment to which the Borrower is subject, or any contract to which the Borrower is a party.
5. The signatures of the officers of the Borrower that appear on the credit
Documents are true and genuine. I know such officers and know them to be the duly elected or
appointed qualified incumbents of the offices of the Borrower set forth below their names.
ATTORNEYS AT LAW
OFFICE: 2 EAST BRYAN STREET, TENTH FLOOR, SAVANNAH, GEORGIA 31401
MAILING ADDRESS: POST OFFICE BOX 9946, SAVANNAH, GEORGIA 31412
TELEPHONE: 912-233-9700 - FACSIMILE: 912-233-2281
With your permission, in rendering the opinions set forth herein, I have assumed the
following, without any investigation or inquiry on my part:
(i) the due authorization, execution and delivery of the Credit Documents by the
Lender; and
(ii) that the Credit Documents constitute the binding obligations of the Lender and
that the Lender has all requisite power and authority to perform its obligations thereunder.
The enforceability of the Credit Documents (i) may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws affecting the
enforcement of creditors' rights, (ii) may be subject to general principles of equity, whether
applied by a court of law or equity, and (iii) may also be subject to the exercise of judicial
discretion in appropriate cases.
Very truly yours,
Edward M. Hughes
EMH/md
EXTRACT OF MINUTES
RESOLUTION OF GOVERNING BODY
Recipient: CITY OF TYBEE ISLAND
Loan Number: DW2016045
At a duly called meeting of the governing body of the Borrower identified above
(the 'Borrower") held on the .23 day of �s� o?0i7the following
resolution was introduced and adopted.
WHEREAS, the governing body of the Borrower has determined to borrow but
not to exceed $1,361,000 from the DRINKING WATER STATE REVOLVING LOAN FUND,
ADMINISTERED BY GEORGIA ENVIRONMENTAL FINANCE AUTHORITY (the "Lender")
to finance a portion of the costs of acquiring, constructing, and installing the
environmental facilities described in Exhibit A to the hereinafter defined Loan
Agreement (the "Project"), pursuant to the terms of a Loan Agreement (the "Loan
Agreement) between the Borrower and the Lender, the form of which has been
presented to this meeting; and
WHEREAS, the Borrower's obligation to repay the loan made pursuant to the
Loan Agreement will be evidenced by a Promissory Note (the "Note") of the Borrower,
the form of which has been presented in this meeting;
NOW, THEREFORE, BE IT RESOLVED by the governing body of the Borrower that
the terms of the Loan Agreement and the Note (including interest rate provisions,
which shall be as provided in the Note) are in the best interests of the Borrower for
the financing of the Project, and the governing body of the Borrower designates and
authorizes the following persons to execute and deliver, and to attest, respectively,
the Loan Agreement, the Note, and any related documents necessary to the
consummation of the transactions contemplated by the Loan Agreement.
•�/Z
(Signature tf`PersQn to Execute Documents)
(Signat re of Person to Attest Documents)
�y
(Print Title)
nulls
(Print Title)
The undersigned further certifies that the above resolution has not been repealed or
amended and remainsin full force and effect. /
Dated: %;- ) //a !�(
(SEAL) ecreta Clerk)
Recipient: CITY OF TYBEE ISLAND
Loan Number: DW2016045
TAX CERTIFICATE
Certain terms that are used herein and that are defined or used in the Internal
Revenue Code of 1986, as amended (the "Code"), or in the Treasury Regulations issued
thereunder are explained in general terms in Definitions attached to this Certificate and
made a part hereof.
The undersigned officials of CITY OF TYBEE ISLAND (the "Borrower") hereby
certify that we are the duly appointed, qualified, and acting officials of the Borrower set
forth under our respective signatures, and that we have all authority necessary to execute
this Certificate on behalf of the Borrower, and we hereby certify for and on behalf of the
Borrower that:
1. In General
1.1. We are familiar with the loan in the authorized principal amount not to exceed
$1,361,000 (the "Loan"), being made by the Georgia Environmental Finance Authority
(the "Lender") to the Borrower pursuant to the terms of a Loan Agreement, dated the date
hereof, between the Lender and the Borrower, for the purpose of providing funds that will
be used to permanently finance the costs of certain replacements, additions, extensions,
and improvements to the Borrower's environmental facilities (the "System"). The Loan is
a draw -down loan, in which the Lender will advance loan amounts to the Borrower to pay
for eligible costs only after such costs have been incurred by the Borrower. Proceeds of
the Loan will not be invested before they are used to pay eligible costs. The Borrower
reasonably expects to draw the full amount of the Loan to pay eligible costs within the 3 -
year period beginning on the "issue date."
2. Private Activity Bond Test
2.1. Either (a) no more than ten percent of the proceeds of the Loan are to be used
for any "private business use'; or
(b) the payment of the principal of, or the interest on, no more than ten
percent of the proceeds of the Loan is (under the terms of the Loan or any underlying
arrangement) directly or indirectly (1) secured by any interest in (A) property used or to
be used for a "private business use," or (B) payments in respect of such property, or (2)
to be derived from payments (whether or not to the Borrower) in respect of property, or
borrowed money, used or to be used for a "private business use."
2.2. No proceeds of the Loan are to be used for any "private business use," which
use is not related to any "government use" of such proceeds.
January 2006-v10
2.3. The proceeds of the Loan that are to be used for any "private business use"
will not exceed the proceeds of the Loan that are to be used for the "government use' to
which such "private business use" relates.
2.4. The amount of the proceeds of the Loan that are to be used (directly or
indirectly) to make or finance loans to persons other than governmental units will not
exceed the lesser of five percent of such proceeds or $5,000,000.
2.5. Without limiting the general nature of the certifications set forth above, the
Borrower certifies as follows:
(i) The Borrower will own and operate the System.
(ii) The System will be available for general public use.
(iii) Use of the System by any person other than a governmental unit will
be on the same basis as use by other members of the general public. No portion
of the services, facilities, and commodities provided by the System will be made
available to any one customer (other than a state or local governmental unit), or
limited group of customers (other than state or local governmental units), on a
basis other than the same basis as such services, facilities, and commodities are
made available to the general public. The Borrower may, however, grant volume
discounts to reasonable classifications of private users, if other private users in the
same classifications are entitled to the same volume discounts.
(iv) The Borrower knows of no facts or circumstances surrounding the
capital improvements to be financed by the Loan that would indicate that the
primary purpose of the capital improvements to be financed by the Loan is to
benefit one private user or a limited number of private users.
3. Contracts and Other Arrangements
3.1. The Borrower has not entered into and will not enter into any output or take
or take -or -pay contracts or other preferred arrangements with any entity other than a state
or local governmental unit with respect to the services, facilities, and commodities
provided by the System.
3.2. The Borrower has not entered into and will not enter into any lease or other
contract providing for use of the System with any entity other than a state or local
governmental unit.
3.3. The Borrower has not entered into and will not enter into a "management
contract' involving the System with any entity other than a state or local governmental
unit, unless it is a "qualified management contract."
3.4. The Borrower has not entered into and will not enter into any other
arrangements with any entity other than a state or local governmental unit that convey
-2-
special legal entitlements to the services, facilities, and commodities provided by the
System.
4. Section 149 Matters
4.1. The Loan is not and will not be "federally guaranteed."
4.2. The Borrower reasonably expects that at least 85 percent of the spendable
proceeds of the Loan will be used to carry out the governmental purposes of the Loan
within the 3 -year period beginning on the "issue date." Not more than 50 percent of the
proceeds of the Loan will be invested in nonpurpose investments having a substantially
guaranteed yield for 4 years or more.
To the best of our knowledge, information, and belief, there are no other facts,
estimates, or circumstances that would materially change any of the foregoing
certifications. The representations contained in this Certificate are made for the benefit
of the Lender and may be relied upon by the Lender in determining whether or not the
interest on the Loan is subject to income taxation by the United States under existing
statutes, regulations, and decisions.
Dated: !�3 7
CITY OF TYBEE ISLAND
Signature:
Print Name:—. �S�•, arc" c.�r„
Title: h�Ys Z
(SEAL)
Attest Signat /
Print Name:
Title: -AL
-3-
PROMISSORY NOTE
CITY OF TYBEE ISLAND
Loan/Project No. DW2016045
$1,361,000
FOR VALUE RECEIVED, the undersigned (hereinafter referred to as the
"Borrower") promises to pay to the order of the DRINKING WATER STATE
REVOLVING FUND, ADMINISTERED BY GEORGIA ENVIRONMENTAL FINANCE
AUTHORITY (hereinafter referred to as the "Lender") at the Lender's office located in
Atlanta, Georgia, or at such other place as the holder hereof may designate, the principal
sum of ONE MILLION THREE HUNDRED SIXTY-ONE THOUSAND DOLLARS AND
ZERO CENTS ($1,361,000), or so much thereof as shall have been advanced
hereagainst and shall be outstanding, together with interest on so much of the principal
balance of this Note as may be outstanding and unpaid from time to time, calculated at
the rate or rates per annum indicated below.
The unpaid principal balance of this Note shall bear interest at a rate per annum
equal to ZERO AND 89/100 PERCENT (0.89%), (1) calculated on the basis of actual
number of days in the year and actual days elapsed until the Amortization
Commencement Date (as hereinafter defined), and (2) calculated on the basis of a 360 -
day year consisting of twelve 30 -day months thereafter.
Accrued interest on this Note shall be payable monthly on the first day of each
calendar month until the first day of the calendar month following the earlier of (1) the
Completion Date (as defined in the hereinafter defined Loan Agreement), (2) APRIL 1,
2018, or (3) the date that the loan evidenced by this Note is fully disbursed (the
"Amortization Commencement Date"). Principal of and interest on this Note shall be
payable in TWO HUNDRED THIRTY-NINE (239) consecutive monthly installments equal
to the Installment Amount (as hereinafter defined), commencing on the first day of the
calendar month following the Amortization Commencement Date, and continuing to be
due on the first day of each succeeding calendar month thereafter, together with a final
installment equal to the entire remaining unpaid principal balance of and all accrued
interest on this Note, which shall be due and payable on the date that is 20 years from
the Amortization Commencement Date (the "Maturity Date").
This Note shall bear interest on any overdue installment of principal and, to the
extent permitted by applicable law, on any overdue installment of interest, at the aforesaid
rates. The Borrower shall pay a late fee equal to the Lender's late fee, as published from
time to time in the Loan Servicing Fee schedules, for any installment payment or other
amount due hereunder that is not paid by the 15th of the month in which the payment is
due.
"Installment Amount" means the amount equal to the monthly installment of
principal and interest required to fully amortize the then outstanding principal balance of
this Note as of the Amortization Commencement Date at the rate of interest on this Note,
U52000 1686340.12
on the basis of level monthly debt service payments from the Amortization
Commencement Date to and including the Maturity Date.
All payments or prepayments on this Note shall be applied first to unpaid fees and
late fees, then to interest accrued on this Note through the date of such payment or
prepayment, and then to principal (and partial principal prepayments shall be applied to
such installments in the inverse order of their maturity).
At the option of the Lender, the Borrower shall make payments due under this Note
using pre -authorized electronic debit transactions, under which the Lender will be
authorized to initiate and effect debit transactions from a designated account of the
Borrower without further or additional approval or confirmation by the Borrower. The
Borrower further agrees to adopt any necessary approving resolutions and to complete
and execute any necessary documents in order for the Lender to effect such pre -
authorized debit transactions. In the event the Borrower has insufficient funds in its
designated account on the date the Lender attempts to debit any payment due hereunder,
the Borrower shall pay the Lender a processing fee equal to the Lender's processing fee,
as published from time to time in the Lender's fee schedules for each such occurrence
(but not exceeding two such processing fees in any calendar month), in addition to any
late fee as provided above.
The Borrower may prepay the principal balance of this Note in whole or in part at
any time without premium or penalty.
This Note constitutes the Promissory Note issued under and pursuant to and is
entitled to the benefits and subject to the conditions of a Loan Agreement (the "Loan
Agreement"), dated the date hereof, between the Borrower and the Lender, to which
Loan Agreement reference is hereby made for a description of the circumstances under
which principal shall be advanced under this Note. Reference is hereby made to the Loan
Agreement for a description of the security for this Note and the options and obligations
of the Borrower and the Lender hereunder. Upon an Event of Default (as defined in the
Loan Agreement), the entire principal of and interest on this Note may be declared or may
become immediately due and payable as provided in the Loan Agreement.
The obligation of the Borrower to make the payments required to be made under
this Note and to perform and observe any and all of the other covenants and agreements
on its part contained herein shall be a general obligation of the Borrower, as provided in
the Loan Agreement, and shall be absolute and unconditional irrespective of any defense
or any rights of setoff, counterclaim, or recoupment, except for payment, it may otherwise
have against the Lender.
In case this Note is collected by or through an attorney-at-law, all costs of such
collection incurred by the Lender, including reasonable attorney's fees, shall be paid by
the Borrower.
Time is of the essence of this Note. Demand, presentment, notice, notice of
demand, notice for payment, protest, and notice of dishonor are hereby waived by each
-2-
U52000 1686340.12
and every maker, guarantor, surety, and other person or entity primarily or secondarily
liable on this Note. The Lender shall not be deemed to waive any of its rights under this
Note unless such waiver be in writing and signed by the Lender. No delay or omission
by the Lender in exercising any of its rights under this Note shall operate as a waiver of
such rights, and a waiver in writing on one occasion shall not be construed as a consent
to or a waiver of any right or remedy on any future occasion.
This Note shall be governed by and construed and enforced in accordance with
the laws of the State of Georgia (without giving effect to its conflicts of law rules).
Whenever possible, each provision of this Note shall be interpreted in such manner as to
be effective and valid under applicable law, but if any provision of this Note shall be
prohibited by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Note.
Words importing the singular number hereunder shall include the plural number
and vice versa, and any pronoun used herein shall be deemed to cover all genders. The
word "Lender" as used herein shall include transferees, successors, and assigns of the
Lender, and all rights of the Lender hereunder shall inure to the benefit of its transferees,
successors, and assigns. All obligations of the Borrower hereunder shall bind the
Borrower's successors and assigns.
SIGNED, SEALED, AND DELIVERED by the undersigned Borrower as of the o2.3
day of , • - ,t o 1
CITY OF TYBEE ISLAND
Approved as to form: Signature: is,v
" p Print Name:' = ,-
By. c� ` �I Title: 1"Aq�
Borrower's Attorney
(SEAL)
Attest Signature:
Print Name: 4/PanOy t /� L'e—yi p
Title:
-3-
U52000 1686340.12
Fon,$G$$-G Information Return for Tax -Exempt Governmental Obligations
(Rev. September 2011) ► Under Internal Revenue Code section 149(e) OMB No. 1545-0720
►See separate instructions.
Department of the Treasury p
Internal Revenue Service Caution: If the issue rice is under $100,000, use Form 8038 -GC.
If Amended Return.
1 Issuer's name
2 Issuer's employer identification number (EIN)
CITY OF TYBEE ISLAND
98-6000661
38 Name of person (other than issuer) with whom the IRS may communicate about this return (see instructions)
3b Telephone number of other pe n sh o
3a
12
GI��T - C
14
4 Number and street (or P.O. box if mail is not delivered to street address)
Room/suite
5 Report number (For IRS Use Only)
403 BUTLER AVENUE
23 Issue price of entire issue (enter amount from line 21, column (b)) . . . .
131 1-
6 City, town, or post office, state, and ZIP code
7 Date of issue
TYBEE ISLAND, GA 31328
8 Name of issue
8 CUSIP number
Loan Agreement w/Georgia Environmental Finance Authority (GEFA) DW2016045
NONE
108 Name and tale of officer or other employee of the issuer whom the IRS may call for more information (see
166 Telephone number of officer or other
I n+otrns)o 1� I4\)d5q j
r, employee Be
a) �+-1'`a
Description of Obligations. Complete for the entire issue for which this form is being filed.
I ype OT issue (emer the Issue price). See the instructions and attach schedule.
(a) Final maturity date
11
12
13
14
15
16
17
18
19
20
Education . . . . . . . . . . . . . . . . . . . . . .
Health and hospital . . . . . . . . . . . . . . . . . . . . . . . .
Transportation . . . . . . . . . . . . . . . . . . . . . . . . . .
Public safety . . . . . . . . . . . . . . . . . . . . . . . . . . .
Environment (including sewage bonds) . . . . . . . . . . . . . . . . . .
Housing . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Utilities . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Other. Describe ►
If obligations are TANs or RANs, check only box 19a . . . . . . . . . . . . .
If obligations are BANS, check only box 19b . . . . . . . . . . . . . . . .
If obligations are in the form of a lease or installment sale, check box . . . . . . . .
. .
. .
. .
. .
. .
. .
No.
► ❑
► ❑
11
12
13
14
15 t
16
17
18
23 Issue price of entire issue (enter amount from line 21, column (b)) . . . .
Description of Obligations. Complete for the entire issue for which this form is being filed.
(a) Final maturity date
(b) Issue price
(c) Stated redemption (d) Weighted
price at maturity average maturity
(e) Yield
21 311/2038
1,3611,13col
S 1,361,0001 10.34 years
0.89
Uses of Proceeds of Bond Issue (including underwriters' discount)
22 Proceeds used for accrued interest . . . . . . . . . . . . . . . . . . . . .
22
0
23 Issue price of entire issue (enter amount from line 21, column (b)) . . . .
23
1,361,000
24 Proceeds used for bond issuance costs (including underwriters' discount) . . 24 0
25 Proceeds used for credit enhancement . . . . . . . . . . . . 25 0
26 Proceeds allocated to reasonably required reserve or replacement fund . 26 0
27 Proceeds used to currently refund prior issues . . . . . . . . 27 0
28 Proceeds used to advance refund prior issues . . . . . . . . . 28 0
29 Total (add lines 24 through 28) . . . . . . . . . . . . . . . . . . . . . . .
29
0
30 Nonrefunding proceeds of the issue (subtract line 29 from line 23 and enter amount here) . .
30
1.361.000
31 Enter the remaining weighted average maturity of the bonds to be currently refunded . . . . ► years
32 Enter the remaining weighted average maturity of the bonds to be advance refunded . . . . ► years
33 Enter the last date on which the refunded bonds will be called (MM/DD/yyyy) . . . . . . ►
34 Enter the date(s) the refunded bonds were issued ► (Mm/DDNYYY)
For Paperwork Reduction Act Notice, see separate instructions. Cat. No. 63773S Form 8038-G (Rev.9-2ol1)
Form 8038-G (Rev.
2
35
Enter the amount of the state volume cap allocated to the issue under section 141(b)(5) . . . . 35
36a
Enter the amount of gross proceeds invested or to be invested in a guaranteed investment contract
(GIC) (see instructions) . . . . . . . . . . . . . . . . . . . . . . . . . 36a
b
Enter the final maturity date of the GIC Do-
c
c
Enter the name of the GIC provider►
37
Pooled financings: Enter the amount of the proceeds of this issue that are to be used to make loans
to other governmental units . . . . . . . . . . . . . . . . . . . . . . . . 37
38a
If this issue is a loan made from the proceeds of another tax-exempt issue, check box ► ❑ and enter the following information:
b
Enter the date of the master pool obligation ►
C
Enter the EIN of the issuer of the master pool obligation ►
d
Enter the name of the issuer of the master pool obligation ►
39
If the issuer has designated the issue under section 265(b)(3)(B)(i)(III) (small issuer exception), check box . . . . ►
❑
40
If the issuer has elected to pay a penalty in lieu of arbitrage rebate, check box . . . . . . . . . . . . . ►
❑
41a
If the issuer has identified a hedge, check here ► ❑ and enter the following information:
b
Name of hedge provider Do-
c
Type of hedge ►
d
Term of hedge ►
42
If the issuer has superintegrated the hedge, check box . . . . . . . . . . . . . . . . . . . . . ►
❑
43
If the issuer has established written procedures to ensure that all nonqualified bonds of this issue are remediated
according to the requirements under the Code and Regulations (see instructions), check box . . . . . . . . ►
❑
44
If the issuer has established written procedures to monitor the requirements of section 148, check box . . . . . ►
❑
45a
If some portion of the proceeds was used to reimburse expenditures, check here ► ❑ and enter the amount
of reimbursement . . . . . . . . . Bo-
b
b
Enter the date the official intent was adopted ►
Under penalties of perjury, I declare that I have examined this return and accompanying schedules and statements, and to the best of my knowledge
Signature and belief, they are true, correct, and complete. I further declare that I consent to the IRS's disclosure of the issuer's return infomration, as necessary to
and ProcessiNs a urn, h p rson that I have authorized above.
Consent 1� ,5e7� i�oC�Sp ti
F signature of issuer's authoraed representative Date F Type or print name and title
Paid Printrrype preparer's name Preparer's signature Date Check ❑ if
Preparer I self -employer
Use Only Firm's name ► Firm's EIN 0 -
Form
Form 51738-0 (Rev. 9-2011)
AULDIN
& ENKINS
Georgia Environmental Finance Authority
233 Peachtree Street, N.W.
Harris Tower, Suite 900
Atlanta, Georgia 30303-1727
Dear Ladies and Gentlemen:
We have audited the financial statements of the governmental activities, the business -type activities,
each major fund, and the aggregate remaining fund information of the City of Tybee Island, Georgia
(the City) as of and for the year ended June 30, 2016, which collectively comprise the City's basic
financial statements. In connection with the environmental facility loan:
We are independent certified public accountants with respect to the City under the
"Independence Rule" of the AICPA's Code of Professional Conduct, and its interpretations.
2. We have not examined any financial statements of the City as of any date or for any period
subsequent to June 30, 2016; although we have conducted an audit for the fiscal year ended
June 30, 2016, the purpose (and, therefore, the scope) of the audit was to enable us to
express our opinions on the basic financial statements as of June 30, 2016, and for the year
then ended, but not on the financial statements for any interim period subsequent to year-
end. Therefore, we are unable to and do not express any opinion on the financial position,
results of operations, or cash flows as of any date or for any period subsequent to June 30,
2016 for the City.
For purposes of this letter, we have read the minutes of the meetings of the City Council of
the City of Tybee Island set forth in the minute books as of February 20, 2017, officials of the
City having informed us that the minutes of all such meetings through that date were set forth
therein.
4. With respect to the period subsequent to June 30, 2016, we have carried out other
procedures to January 31, 2017 as follows:
We have inquired of and received assurance from City officials who have
responsibility for financial and accounting matters that no financial statements as of
any date or for any period subsequent to June 30, 2016, are available.
b. We have inquired of those officials regarding whether (a) at January 31, 2017, there
was any decrease in the net position of the City's Water and Sewer Fund as
compared with amounts shown on the June 30, 2016 Statement of Net Position, or
(b) for the period from July 1, 2016 to January 31, 2017, as annualized, there were
any decreases as compared with the preceding fiscal year, in operating revenues of
the City's Water and Sewer Fund. Those officials stated that:
As of January 31, 2017, there was no decrease in the net position of the
City's Water and Sewer Fund as compared to June 30, 2016.
300 MULBERRY STREET, SUITE 300 • POST OFFICE BOX 1877 • MACON, GEORGIA 31202-1877 • 478-464-8000 • FAX 478-464-8051 • w .mjcpa.com
MEMBERS OF THE AMERICAN INSTITUTE OF CERTIFIED PUBLIC ACCOUNTANTS
ii) For the period from July 1, 2016 to January 31, 2017, as annualized, there
was no decrease in operating revenues of the City's Water and Sewer Fund
as compared to the fiscal year ended June 30, 2016-
5. For accounting data, used in procedure 4 above, and pertaining to the fiscal year ended
June 30, 2016, we have compared such data with the audited financial statements of the City
of Tybee Island, Georgia as of and for the year ended June 30, 2016 and found them to be in
agreement. For accounting data, used in procedure 4 above, and pertaining to the seven-
month period ending January 31, 2017, we have compared such data with the general ledger
and accounting records of the City's Water and Sewer Fund as of and for the seven-month
period ending January 31, 2017, and found them to be in agreement.
6. Our audit of the basic financial statements for the fiscal year ended June 30, 2016 comprised
audit tests and procedures deemed necessary for the purpose of expressing an opinion on
such financial statements as a whole. For none of that period, nor for any other period, did
we perform audit tests for the purpose of expressing an opinion on individual balances of
accounts or summaries of selected transactions, such as those enumerated above, and
accordingly, we express no opinion thereon.
The procedures enumerated in the preceding paragraphs do not constitute an audit
conducted in accordance with auditing standards generally accepted in the United States of
America. Accordingly, we make no representations regarding the sufficiency of the foregoing
procedures for your purposes.
8. These procedures should not be taken to supplant any additional inquiries or procedures that
you would undertake in your consideration of the proposed loan.
9. This letter is solely for the information of, and assistance to, the Georgia Environmental
Finance Authority (GEFA) in conducting and documenting their investigation of the affairs of
the City in connection with the Georgia Environmental Finance Loan Application and is not to
be used, circulated, quoted or otherwise referred to within or without the Georgia
Environmental Finance Authority for any other purposes except that reference may be made
to it in the Georgia Environmental Finance Authority financing contract or in any list of closing
documents pertaining to the offering of an environmental facility loan to the City.
10. We have no responsibility to update this letter for events and circumstances occurring after
February 20, 2017.
Macon, Georgia
February 20, 2017
AULDIN
& ENKINS
EXHIBIT A
PAGE 1 OF 3
DESCRIPTION OF THE PROJECT
SCOPE OF WORK
Recipient: CITY OF TYBEE ISLAND
Loan Number: DW2016045
This project consists of the replacement of water mains and all related appurtenances.
EXHIBIT A
PAGE 2OF3
DESCRIPTION OF THE PROJECT
PROJECT BUDGET
Recipient: CITY OF TYBEE ISLAND
Loan Number: DW2016045
ITEM
TOTAL
DWSRF
Construction
$1,156,000
$1,156,000
Contingency
102,500
102,500
Engineering & Inspection
102,500
102,500
Administrative/Legal
-
-
TOTAL
$1,361,000
$1,361,000
EXHIBIT A
PAGE 3OF3
DESCRIPTION OF THE PROJECT
PROJECT SCHEDULE
Recipient: CITY OF TYBEE ISLAND
Loan Number: DW2016045
ACTION
DATE
Plans & Specs Submitted to EPD
OCTOBER 2016
Bid Opening
NOVEMBER 2016
Notice to Proceed
JANUARY 2017
Completion of Construction
DECEMBER 2017
Georgia Environmental Finance Authority
Attn: Accounts Payable
233 Peachtree Street, NE
® Harris Tower, Suite 900
Atlanta, GA 30303.1506
Phone 404.584.1000
Fax 404.584.1067
Electronic Funds Transfer via ACH Authorization Form
(Direct Deposit)
VENDOR•
•
Contract, Grant or Invoice Number, if same banking
DVV2016045
information for all items, please type "ALL"
Legal lyame of Ven
!T' I
Tax ID or EIN
Physi al Add ess _
Mailing A ress (if ifferent from
physical Address)
City,Stat
,Zip Code! ) /375
!
C ate, Zip I C, , `��9
Vendo one Number
Ve or Fax Numb e
Vendor E ail Address for Pa ment Notification
M r- e M cri
Vendor Websit Add
�nl'tn - c ee .
Primary Cont ct ame `✓ l j
Primarffantact Title
PrimaContact Phone Num er
l2 -V a�
Primary ntact Email Addre
Seco awry Cont Name
Secondary Contact Title
t
Secondpry Contact Phone N tuber
Second Contact Em a'ii ddr ss
BANK INFORMATION
Bank Name /
J`v 1 T
Bank Phone Number
'119 -X35--6
Branrh AeldOfsnn J -- _ ,/�r City, State, Zip Code
/'1 7C7G�6L�J Cs' 3l
a
Transit Boutin ABA Number (9 -Digits) Bank Account Numbf r �-
tovit . (O
The Vendor hereby authorizes Georgia Environmental Pinnnrp Authority ("GEFA") to deposit directly into the
account described above any amounts payable and to withdraw from that account, upon GEFA's notice to the
Bank, any amounts deposited by GEFA to which the Vendor is not entitled. The Vendor further authorizes and
directs the Bank to accept such deposits and to permit such withdrawals.
This authorization is to remain in force until GEFA has received written notification from Vendor of termination in
such time and in such manner as to afford GEFA and/or the Bank a reasonable opportunity to act on it.
Print Name of Person Authorized on Bank Account
Title
AnsQ)F� D Nth
11
cec �o-C 4—
nc
Authorized Signature
Date
o
a-a%f- b
Attestation Signature -
Title
Mail # fax this form and required documentation to the address or number above. This information can also be
emailed to accounting@gefa.ga.gov for faster setup. All originals should be mailed for documentation purposes.
GEFA use only: Entered FE Initials Pre-noted/Email Sent Vendor ID
Called Vendor Bank to confirm account name and #: Bank Employee Name
GEFA Employee Initials and Date
Georgia Environmental Finance Authority
Attn: Loan Servicing
233 Peachtree Street, NE
i Harris Tower, Suite 900
Atlanta, GA 30303.1506
Phone 404.584.3000
Fax 404.584.1067
Electronic Funds Debit via ACH Authorization Form
(Payment of Invoice/Repayment of Loan Funds)
Invoice Number/Project ID(s), if same banking
DW2016045
information for all billed items, please enter "ALL"
Lego arae of Pa er
(-r T 15"
Tax ID or EIN
1 5 1 1 14, 1 o 1a
Physical Address
Mailing Address (if ifferentfr P ysical Address)
CjiWtiate, Zip Cod
City, S4a e, Zip Code
Pay Phone Number
qc — SGS- S?
Paye ax Number
Primary Contact Name
IVI Cl A- ��CE�M
PrimaContact Title
Fin
i �
Primary Contact
phone Number
Prima Contact Email Addre
SecondAry Contact Nannip
Secondary Contact Tit
(% Orl
�]
Second brry Cont Phone umber
a -iia-
SContact Ema' Address
econary
s �
BANK ..
Bank Name
Bank Phone y{IrVr- 2
2
Branch Ad
Ci tate, Zip Code
• • • •• • •• • • •
Transit Boutin ABA Number 9 -Di its
0 o n o
Bank Account Number
1067a/0?�21&S dZ
The Payer hereby authorizes Georgia Environmental finance Authority ("GEFA") to withdraw directly from the
account described above any amounts owed and to deposit to that account, upon GEFA's notice to the Bank, any
amounts withdrawn by GEFA for which GEFA is not entitled. The Payer further authorizes and directs the Bank to
accept such withdrawals and to permit such deposits.
This authorization is to remain in force until GEFA has received written notification from Payer of termination in
such time and in such manner as to afford GEFA and/or the Bank a reasonable opportunity to act on it.
Pr* jName of Pearson Authotrized n Bank Account
T}itt r�
ut ized Signature
Date —
Attestation Sig ature
Title
Mail or fax this form and required documentation to the address or number above. This information can also be
emailed to disbursementsPRefa.ea.¢ov for faster setup. All originals should be mailed for documentation
purposes.
GEFA use only: Entered NLS Initials
Pre-noted/Email Sent Payer ID
Called Payer Bank to confirm account name and #: Bank Employee Name
GEFA Employee Initials and Date
AUTHORIZED SIGNATURE CARD
FOR DRAWDOWN OF PROCEEDS
UNDER GEFA PROGRAMS
Name of Recipient:
GEFA Project Number
CITY OF TYBEE iSLAND
DW2016045
SIGNATURES OF OFFICIALS AUTHORIZED TO DRAW ON THE CITED PROJECT
❑ ONLY ONE SIGNATURE REQUIRED ON PAYMENT VOUCHERS
OR
❑ ANY TWO SIGNATURES REQUIRED TO SIGNOR COUNTERSIGN
Type s$ N me nd Sign re
f
TyVd Name rd Si ture n
G f
Typed Name and Signature
Typed Name and Signature
I certify that the signatures above are of the individuals authorized to request payment under the project cited above.
(The attesting official below cannot be one of the officials that is named above as authorized to sin dra requests)
_�i�
SI ATURE OF ATTESTING OFFICIAL (Recipient) DATE