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_.
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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