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HomeMy Public PortalAboutGEFA- Promissory Note-Modification- Drinking Water State Revolving Fund ($1,361,000) 2-23-17Nathan Deal Governor GEORGIA ENVIRONMENTAL FINANCE AUTHORITY February 16, 2018 Mr. Shawn Gillen City Manager City of Tybee Island 403 Butler Ave Tybee Island, GA 31328 RE: Modification for GEFA Project Number DW2016045 Dear Mr. Gillen: Kevin Clark Executive Director Enclosed are the modification documents regarding the Drinking Water State Revolving Fund loan agreement with the Georgia Environmental Finance Authority (GEFA) and the city of Tybee Island. GEFA is pleased to provide you the following enclosed materials: 1) Three originals of the Modification of Promissory Note and Loan Agreement; a. Exhibit A — Project Description b. Exhibit E — Opinion of Borrower's Counsel c. Exhibit F — Resolution of Governing Body In order to execute these modification documents in a timely manner, please read the following instructions: MODIFICATION OF PROMISSORY NOTE AND LOAN AGREEMENT Enclosed are three original modification agreements. Each copy is an original counterpart and each must be executed. Please have the appropriate official sign each document and the appropriate person attest the signature. Once signed, return THREE modification agreements along with the other documents to GEFA so that they may be executed. We will then return your counterpart to you. EXHIBIT E — OPINION OF BORROWER'S COUNSEL Exhibit E is a sample letter that must be prepared by your local government's attorney. This letter ensures that the modification documents have been properly reviewed by the local government's attorney. Additionally, on the signature page of the Modification of Promissory Note and Loan Agreement, the local govemment's attorney must sign where indicated that the loan agreement is "Approved as to form." 233 PEACHTREE STREET NE • HARRIS TOWER, SUITE 900 • ATLANTA, GEORGIA 30303-1506 •404-584-1000 • FAX 404-584-1069 www.gefa.georgia.gov EXHIBIT F — RESOLUTION OF GOVERNING BODY This resolution gives authorization to the chief elected official to execute the modification documents and any and all other documents related to the loan. This resolution must be submitted with the signed modification documents. When all documents have been completed, please return them to GEFA. Please let me know if we can be of further assistance to you. Sincerely, Tracy Williams Program Manager CITY OF TYBEE ISLAND Loan/Project No. DW2016045 PROMISSORY NOTE $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 THOUSANDDOLLARS 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, US2000 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 023 day of 9�1,_ua.,.t ,oto 11. Approved as to form: By.'L/` Borrower's Attorney ❑S2000 1686340.12 CITY OF TYBEE ISLAND Signature.. PrintName:CA4, Title: M/ (SEAL) Attest Signature: ,/ Print Name: %tin er.T %j Le-Votoen_, Title: eat, d_/cic!c_. -3- Loan/Project No. DW2016045 MODIFICATION OF PROMISSORY NOTE AND LOAN AGREEMENT THIS MODIFICATION OF PROMISSORY NOTE AND LOAN AGREEMENT (this "Modification") dated , 20 , by and between CITY OF TYBEE ISLAND, Georgia, a Georgia public body corporate and politic (the "Borrower"), and the DRINKING WATER STATE REVOLVING FUND, ADMINISTERED BY GEORGIA ENVIRONMENTAL FINANCE AUTHORITY, a Georgia public corporation (the "Lender"). Statement of Facts A. The Lender and the Borrower are parties to that certain Loan Agreement, dated MARCH 29, 2017 as amended prior to the date hereof (as so amended, the "Loan Agreement", all capitalized terms used in this Modification but not defined herein have the meanings given in the Loan Agreement), pursuant to which the Lender made a loan to the Borrower in accordance with the terms and conditions thereof. The Borrower's obligation to repay such loan is evidenced by that certain Promissory Note, dated FEBRUARY 23, 2017, as amended prior to the date hereof (as so amended, the"Note"). B. The Lender and the Borrower desire to modify the Loan Agreement and Note in certain respects in accordance with the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the promises, the covenants and agreements contained herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Lender and the Borrower further agree as follows: Statement of Terms 1. Amendments of Note - Subject to the fulfillment of the conditions precedent to the effectiveness of this Modification that are set forth below, the Note is hereby amended as follows: 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) SEPTEMBER 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 -1- and all accrued interest on this Note, which shall be due and payable on the date that is 20 years from the Amortization Commencement Date (the "Maturity Date"). 2. Amendments of Loan Agreement - Subject to the fulfillment of the conditions precedent to the effectiveness of this Modification that are set forth below, the Loan Agreement is hereby amended as follows: Section 2 (a) of the Loan Agreement is hereby amended and restated to read as follows: "The Lender agrees to advance to the Borrower, on or prior to the earlier of (1) the Completion Date (as hereinafter defined), (2) SEPTEMBER 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." Exhibit A is amended and restated to read as written in the attached Exhibit A. 3. No Other Waivers or Amendments - Except for the amendments expressly set forth and referred to in Section 1 and 2 above, the Note and the Loan Agreement shall remain unchanged and in full force and effect. Nothing in this Modification is intended, or shall be construed, to constitute a novation or an accord and satisfaction of any of the obligations created by the Note. 4. Representations and Warranties - To induce the Lender to enter into this Modification, the Borrower does hereby warrant, represent, and covenant to the Lender that: (a) each representation or warranty of the Borrower set forth in the Loan Agreement is hereby restated and reaffirmed as true and correct on and as of the date hereof as if such representation or warranty were made on and as of the date hereof (except to the extentthat any such representation or warranty expressly relates to a prior specific date or period), and no Event of Default has occurred and is continuing as of this date under the Loan Agreement; and (b) the Borrower has the power and is duly authorized to enter into, deliver, and perform this Modification, and this Modification is the legal, valid, and binding obligation of the Borrower enforceable against it in accordance with its terms. 5. Conditions Precedent to Effectiveness of this Modification - The effectiveness of this Modification is subject to the truth and accuracy in all material respects of the representations and warranties of the Borrower contained in Section 4 above and to the fulfillment of the following additional conditions precedent: a. the Lender shall have received one or more counterparts of this Modification duly executed and delivered by the Borrower; and b. the Lender shall have received (1) a 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. -2- 6. Counterparts - This Modification may be executed in multiple counterparts, each of which shall be deemed to be an original and all of which when taken together shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Modification to be duly executed and delivered as of the date specified at the beginning hereof CITY OF TYBEE ISLAND Approved as to form By:C-,(-' Borrower's Attorney Signat Print Name: Title: M'T--c4 (SEAL) Attest Signature: Print Name: %digiverr- Title: C/ev'/L__.' DRINKING WATER STATE REVOLVING FUND, ADMINISTERED BY GEORGIA ENVIRONMENTAL FINANCE AUTHORITY Signature: Kevin Clark Executive Director -3- 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. Recipient: Loan Number: DESCRIPTION OF THE PROJECT PROJECT BUDGET CITY OF TYBEE ISLAND DW2016045 EXHIBIT A PAGE2OF3 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 *The amounts shown above in each budget item are estimates. Borrower may adjust the amounts within the various budget items without prior Lender approval provided Borrower does not exceed the loan amount contained in Section 1 of the Loan Agreement. In no event shall Lender be liable for any amount exceeding the loan amount contained in Section 1 of the Loan Agreement. Recipient: Loan Number: DESCRIPTION OF THE PROJECT PROJECT SCHEDULE CITY OF TYBEE ISLAND DW2016045 EXHIBIT A PAGE 3 OF 3 ACTION DATE Plans &Specs Submitted to EPD OCTOBER 2016 Bid Opening NOVEMBER 2016 Notice to Proceed JANUARY 2017 Completion of Construction' MAY 2018 Cy, EPRA ELLIS, PAINTER, RATTERREE &ADAMS LLP Marchz3,2018 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: BHUGHES@EPRA-LAW.COM DIRECT DIAL: 912-231-2720 W W W.EPRA-LAW.COM A legal opinion from ELLIS, PAINTER, RATTERREE & ADAMS, LLP was delivered to you, dated FEBRUARY 24, 2017 (the "Closing Opinion"), relating to the Loan Agreement (the "Loan Agreement"), dated MARCH 29, 2017 between CITY OF TYBEE ISLAND (the "Borrower") and the DRINKING WATER STATE REVOLVING FUND, ADMINISTERED BY GEORGIA ENVIRONMENTAL FINANCE AUTHORITY (the "Lender"), and the Promissory Note (the "Note"), dated FEBRUARY 23, 2017, of the Borrower. As counsel for the Borrower, I have examined the original of the Modification of Promissory Note and Loan Agreement (the "Modification"), between the Borrower and the Lender, the proceedings taken by the Borrower to authorize the Modification, the Closing Opinion, and such other documents, records, and proceedings as I have deemed relevant or material to render this opinion. Based upon such examination, I hereby reconfirm as of the date hereof the opinions contained in the Closing Opinion, subject to the modification that all references to the Note and the Loan Agreement (as defined in the Closing Opinion) shall be deemed to include a reference to the Modification. Nothing has come to my attention, after due investigation, that in any way might question the continuing validity and accuracy of the Closing Opinion, as modified above. Very truly yours, Edward M. Hughes EMH/md 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 EXHIBIT F 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 as day of/n i -i ,,PoiY , the following resolution was introduced and adopted. WHEREAS, the Borrower has borrowed $1,361,000 from the GEORGIA ENVIRONMENTAL FINANCE AUTHORITY (the "Lender"), pursuant to the terms of the Loan Agreement (the "Loan Agreement"), dated MARCH 29, 2017, between the Borrower and the Lender; and WHEREAS, the Borrower's obligation to repay the loan made pursuant to the Loan Agreement is evidenced by a Promissory Note (the "Note"), dated FEBRUARY 23, 2017, of the Borrower; and WHEREAS, the Borrower and the Lender have determined to amend and modify the Note and the Loan Agreement, pursuant to the terms of a Modification of Promissory Note and Loan Agreement (the "Modification") between the Borrower and the Lender, the form of which has been presented to this meeting; NOW, THEREFORE, BE IT RESOLVED by the governing body of the Borrower that the form, terms, and conditions and the execution, delivery, and performance of the Modification are hereby approved and authorized. BE IT FURTHER RESOLVED by the governing body of the Borrower that the terms of the Modification are in the best interests of the Borrower, and the governing body of the Borrower designates and authorizes the following persons to execute and deliver, and to attest, respectively, the Modification, and any related documents necessary to the consummation of the transactions contemplated by the Modification. (Sigrf ture of Person to Execute Documents) (Print Title) ( gnature of Person to Attest Documents) (Print Title) The undersigned further certifies that the above resolution has not been repealed or amended and remains in full force and effect. Date: 020? >11-4-4-----&-' a o fSs e- yt (SEAL) Secreta