ORD 2015-22 Adopted ORDINANCE NO. 2015-22
AUTHORIZING THE CITY OF NORTH AUGUSTA, SOUTH
CAROLINA TO ENTER INTO AN INSTALLMENT PURCHASE
TRANSACTION TO FINANCE THE COSTS RELATING TO THE
CONSTRUCTION AND EQUIPPING OF CERTAIN
IMPROVEMENTS THEREON; AUTHORIZING THE
EXECUTION AND DELIVERY OF VARIOUS DOCUMENTS
RELATING TO SUCH TRANSACTION, INCLUDING THE BASE
LEASE AGREEMENT AND THE INSTALLMENT PURCHASE
AND USE AGREEMENT; AUTHORIZING THE ISSUANCE OF
TIF OBLIGATIONS AND THE EXECUTION AND DELIVERY
OF VARIOUS DOCUMENTS RELATING THERETO,
PURSUANT TO TITLE 31 OF CHAPTER 6 OF THE CODE OF
LAWS OF SOUTH CAROLINA, 1976, AS AMENDED;
DELEGATING THE AUTHORITY TO THE MAYOR AND CITY
ADMINISTRATOR TO DETERMINE CERTAIN MATTERS; AND
OTHER MATTERS RELATING THERETO.
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Date: 4
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BE IT ORDAINED, BY THE CITY COUNCIL OF THE CITY OF NORTH
AUGUSTA, SOUTH CAROLINA, AS FOLLOWS:
Section 1. Findings.
The City Council ("City Council') of the City of North Augusta, South Carolina (the
"City"), hereby finds and determines:
(a) The City is an incorporated municipality located in Aiken County, South
Carolina, and as such possesses all powers granted to municipalities by the Constitution and
laws of the State.
(b) Section 5-7-30 of the South Carolina Code provides, in part, that
municipalities may enact ordinances, not inconsistent with the Constitution and general law
of the State, respecting any subject which appears necessary and proper for the security,
general welfare, and convenience of the municipality and for the preservation of the general
health, peace, order and good government in the municipality. Section 5-7-40 of the South
Carolina Code empowers all municipalities to own and possess real and personal property
and, upon such terms as a council may determine, to convey, lease, or otherwise dispose of
such property.
(c) A vibrant tourism industry fosters and enhances the economic growth and
well-being of a community and its residents. Tourism has been and continues to be a
growing industry for the City. The City is continuing efforts to promote tourism to the City
and to the City's facilities and attractions. In this regard, the Council has determined to
undertake a project, commonly known as Project Jackson (the "Project" as defined with
greater definition hereinbelow). The Project will allow the City to market events and attract
tourists to attend and participate in events. Further, area businesses will benefit from the
influx of attendees, participants and their families coming to the City to attend and
participate in events held at the Project. Accordingly, the City specifically finds that the
Project is eligible for the expenditure of hospitality and accommodations fees imposed
pursuant to Title 5, Chapter 1, Articles 5 and 7, respectively, of the South Carolina Code
(d) The City currently has outstanding its original amount $6,350,000 Lease-
Purchase Obligation, Series 2007 of City of North Augusta, South Carolina (the "2007
Lease Purchase"), which the City intends to redeem using available funds and the proceeds
of the Financing (as defined below) in order to obtain cost savings or other benefits to the
City(the"2007 Refinancing") in connection with the Financing(as defined below).
(e) The City has outstanding an installment purchase transaction it entered into
with the Corporation in connection with the issuance by the Corporation of the $16,000,000
North Augusta Public Facilities Corporation Taxable Installment Purchase Revenue Bond
(Parking Garage and Infrastructure Project) Series 2017A (the "2017A Bonds"), which
matures January 18, 2018, subject to prior optional redemption. The proceeds of 2017A
Bonds provided funds to refinance a prior financing of a structured parking facility adjacent
to the North Augusta Municipal Center commonly referred to as the Medac deck, as well as
funds to begin initial site work and grading for the Project. The City intends to redeem the
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2017A Bonds using available funds and the proceeds of the Financing in order to amortize
such Financing over the life of the Project (the "2017A Refinancing," and together with the
2007 Refinancing,the"Refinancing").
(f) The estimated cost of the Project, including the 2017A Refinancing, is
$72,096,541 exclusive of financing and related costs. The City has determined to defray the
costs of financing or refinancing the Project from the following sources: (1) a cash
contribution of approximately$13,897,347, and (2) proceeds received through the Financing
(described and defined below). The total cost of the Project, the Refinancing, and financing
costs are estimated to be approximately$82 million.
(g) The financing of the Project and the Refinancing will be effected through an
installment purchase transaction, or transactions, pursuant to which the City will enter into a
Base Lease (a form of which is attached hereto as Exhibit A) and an Installment Purchase
Agreement (a form of which is attached hereto as Exhibit B) (collectively, the
"Financing"). Such Base Lease and Installment Purchase Agreement may be amended from
time to time to allow for multiple transactions to provide for the Financing.
(h) Pursuant to the provisions of the Base Lease, the City will (i) lease certain
undeveloped property as well as parcels on which are located the North Augusta Municipal
Center and the Medac parking deck (the "Real Property") to the Corporation in
consideration of the issuance by the Corporation of one or more series of installment
purchase revenue bonds which will be issued pursuant to the provisions of the Trust
Agreement, and (ii) convey existing improvements on the Real Property to the Corporation.
The installment purchase revenue bonds will be paid by the Corporation from the receipts of
certain payments (the "Installment Payments") made by the City to the Corporation under
the provisions of the Installment Purchase Agreement. Pursuant to the provisions of the
Installment Purchase Agreement, the City will agree to purchase from the Corporation
certain Facilities by making the Installment Payments, each as defined in the Installment
Purchase Agreement.
(i) A portion of the Project, consisting of certain components, including a
baseball stadium, parking facilities, and a convention center, constitute Redevelopment
Projects (as defined and described in Ordinance No. 2013-19) of the City (the "TIF
Projects") and are eligible for financing pursuant to Title 31, Chapter 6 of the Code of Laws
of South Carolina 1976, as amended (the "TIF Act") and Ordinance No. 96-10, as amended
by Ordinance No. 2013-19, (together, the "TIF Ordinance"). The City intends to defray the
costs of some or all of the TIF Projects by issuing the TIF Obligation (as defined in Section
3 herein) to the Corporation. Payments made by the City to the Corporation required by the
TIF Obligation shall constitute credits against certain of the Installment Payments required
to be made by the City to the Corporation, as further described in the Installment Purchase
Agreement. The City intends to defray $43,000,000 of TIF Projects, exclusive of financing
and related costs, pursuant to the TIF Ordinance and to cause the issuance of an obligation
contemplated by the TIF Ordinance to defray financing and other costs in an amount,
together with the costs of the Redevelopment Project, which will not exceed $55,000,000
(inclusive of the refinancing of the 2016 TIF Obligation (as defined herein)).
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(j) The installment purchase revenue bonds will be issued by the Corporation in
one or more series in an aggregate principal amount not exceeding $72,000,000, captioned
as Installment Purchase Revenue Bonds (City of North Augusta Project), Series 2017B, in a
principal amount to be determined by the Corporation (the "2017 Bonds"). The Corporation
shall change the bond caption or series designation as appropriate to reflect transaction
timing and structure, upon advice received and as appropriate. The proceeds of the 2017
Bonds may be used to (i) defray a portion of the costs of the design, acquisition,
construction and equipping of the Project, (ii) pay capitalized interest on the 2017 Bonds,
(iii) fund a reserve account, if any, or pay the premium associated with a reserve surety, if
any, (iv) refund any obligations issued to defray any costs associated with the Project, (v)
effect the Refinancing, and(vi)pay the costs of issuance of the 2017 Bonds.
(k) The rights to receive Installment Payments and TIF Obligation payments are
being assigned by the Corporation to the Trustee under the Trust Agreement as security and
the source of payment for the Bonds.
As previously discussed, in order to finance a portion of the design, acquisition,
construction and equipping of the Project and effect the Refinancing, the Council has
determined that it is necessary and in the best interest of the City to enter into the Financing
authorized by this Ordinance with the Corporation. The Council has further determined that
the Financing will serve a proper public and corporate purpose of the City and that the
Project will be publicly owned.
Section 2. Definitions.
The terms defined in this Section for all purposes of this Ordinance shall have the
respective meanings as set forth in this Section. The term:
"2007 Lease Purchase" means the City's original amount $6,350,000 Lease-
Purchase Obligation, Series 2007, which financed a portion of the City's Municipal
Building.
"Base Lease" means the Base Lease Agreement by and between the City and the
Corporation to be dated as of the date of its delivery, as the same may be amended or
supplemented from time to time.
"City"means the City of North Augusta, South Carolina.
"City Administrator" shall mean the City Administrator of the City of North
Augusta, South Carolina.
"City Clerk" shall mean the City Clerk of the City of North Augusta, South Carolina.
"Code"means the Internal Revenue Code of 1986, as amended, from time to time, or
any successor internal revenue laws of the United States enacted by the Congress of the
United States in replacement thereof References to the Code and sections of the Code
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include relevant applicable regulations, temporary regulations and proposed regulations
thereunder and any successor provisions to those sections, regulations, temporary
regulations or proposed regulations.
"Corporation" means the North Augusta Public Facilities Corporation, a South
Carolina nonprofit corporation.
"Council'means the City Council of the City of North Augusta, South Carolina.
"Financing Documents" means collectively, the Base Lease, the Installment
Purchase Agreement, and the Trust Agreement, as each may be amended or supplemented
from time to time, particularly to allow for the refunding of a series of Bonds to (1) modify
the maturity schedule or other terms of such series of Bonds or (2) obtain debt service
savings.
"Installment Purchase Agreement"means the one or more Installment Purchase and
Use Agreements by and between the Corporation and the City to be dated as of the date of
its delivery to provide for the City's acquisition of the Project, as the same may be amended
or supplemented from time to time by the Mayor and City Administrator, particularly to
allow for the refunding of a series of Bonds.
"Mayor" shall mean the Mayor of the City of North Augusta, South Carolina.
"Official Statement" means the official statement prepared in connection with the
sale of the Series 2017 Bonds.
"Ordinance"means this Ordinance of the City.
"Preliminary Official Statement" means the preliminary official statement prepared
in connection with the sale of the Series 2017 Bonds.
"Project" means the design, acquisition, construction, and equipping of a multi-
purpose municipal stadium, conference facilities, structured and other parking, public park
elements including, without limitation, landscaping and hardscape construction to enhance
the City's Greeneway, and certain infrastructure including, without limitation, storm
drainage, utilities (water, sanitary, electric, fiber, and gas), asphalt paving construction,
sidewalks, and street lighting as further described on Exhibit E hereto.
"Real Property"means all those certain pieces, parcels or tracts of land as shown on
Exhibit D hereto.
"Refinancing" means the refinancing of the 2007 Lease Purchase and the
refinancing of the 2017A Bonds.
"South Carolina Code" shall mean the Code of Laws of South Carolina 1976, as
amended.
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"State" shall mean the State of South Carolina.
"TIF Ordinance" means Ordinance No. 96-10, as amended by Ordinance No. 2013-
19, of the City, and as may be further amended or supplemented from time to time.
"TIF Projects" means that portion of the Project and related financing costs
described in the TIF Ordinance and eligible to be financed pursuant to the TIF Ordinance.
"Trust Agreement" means the Trust Agreement by and between the Corporation and
the Trustee to be dated as of the date of its delivery, as the same may be amended or
supplemented from time to time by the parties thereto, particularly to allow for the refunding
of a series of Bonds.
"Trustee" means any bank, trust company, or national banking association meeting
the eligibility requirements set forth in the Trust Agreement and which is selected in
accordance with the provisions of Section 7 hereof.
Section 3. Authorization of TIF Obligations.
A. In order to carry out the TIF Projects, the City hereby authorizes the issuance
of not to exceed $55,000,000 of obligations (the "TIF Obligations") which shall be secured
by the entire special tax allocation fund created by the TIF Ordinance, except that specific
series of TIF Obligations may be secured solely by the portions of the special tax allocation
fund attributable to parcels within the Ballpark Village Municipal Improvement District (as
defined in Ordinance No. 2016-23 of the City), or vice versa, in the discretion of the Mayor
and City Administrator, in order to complete portions of the Financing on a federally tax-
exempt basis. Of the $55,000,000 of TIF Obligations authorized hereunder, not more than
$54,975,000 shall be for purposes contemplated in the TIF Ordinance and not more than
$25,000 may be applied to refund that $25,000 Tax Increment Revenue Obligation, Series
2016A of the City, dated December 2, 2016, which matures on December 2, 2021 (the
"2016 TIF Obligation"). If the 2016 TIF Obligation remains outstanding, it shall be on a
parity with the TIF Obligations. The TIF Obligations may be issued in one or more series,
may bear such date or dates, may mature at such time or times not exceeding thirty years
from their respective dates, may bear such rate or rates of interest (including a variable rate
of interest), may be in such denomination or denominations, may be in such form, either
coupon or registered, may carry such registration and conversion privileges, may be
executed in such manner, may be payable in such medium of payment, at such place or
places, may be subject to such terms of redemption, with or without premium, may be
declared or become due before the maturity date thereof, may provide for the replacement of
mutilated, destroyed, stolen, or lost bonds, may be authenticated in such manner and upon
compliance with such conditions, and may contain such other terms and covenants, as
determined by the Mayor and City Administrator, as the authority of the Council has been
delegated this day. The Mayor and City Administrator are authorized to sell any TIF
Obligations to the North Augusta Public Facilities Corporation in such manner and upon
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such terms as they consider best for the interests of the City. A form of the TIF Obligations
is attached hereto as Exhibit F.
B. In connection with the issuance of any TIF Obligations, the City hereby
incorporates the findings in the TIF Ordinance by reference, with regard to all findings
required by Section 31-6-80(A) of the South Carolina Code. However, for the avoidance of
doubt, the City explicitly sets forth the following:
i. A redevelopment plan for the purposes of Title 31, Chapter 6 of the
South Carolina Code, containing a statement of the objectives of the City with regard
to such plan was adopted by the TIF Ordinance, and such Amended Redevelopment
Plan(as defined in the TIF Ordinance) is incorporated herein by reference.
ii. The need for and proposed use of the proceeds of the TIF Obligations
in relationship to the Amended Redevelopment Plan as set forth at Section 2.03 of
Ordinance No. 2013-19 of the City, is hereby affirmed, and is incorporated herein by
reference.
iii. The City estimates that the portion of the costs of the Amended
Redevelopment Plan to be funded from TIF Obligations is to be approximately $43
million, TIF Obligations to be issued are to not exceed $55 million (inclusive of any
refunding of the 2016 TIF Obligation, funding of reserves, and financing costs), and
the total tax increment necessary to meet the costs of debt service on the TIF
Obligations is approximately$87.5 million.
iv. A list of all real property in the Redevelopment Project Area (as
defined in the TIF Ordinance) is included at Exhibit C.
v. The duration of the Amended Redevelopment Plan extends to the
earlier of(i) November 18, 2048, or (ii) the date the TIF Obligations, including any
refunding obligations, are paid off in full.
vi. The overlapping political subdivisions affected by the Amended
Redevelopment Plan are Aiken County (the "County") and the Aiken County Public
School District (the "School District"). The City has entered into separate
intergovernmental agreements with the County and the School District (collectively,
the "IGA's" and each an "IGA") whereby each entity has agreed to participate in the
Amended Redevelopment Plan on a modified basis. The City estimates that such
agreements to participate in the Amended Redevelopment Plan will result in the
County contributing approximately $29.4 million in tax increment revenues and the
School District contributing approximately $13.4 million in tax increment revenues
to support the Amended Redevelopment Plan. Because the City finds that in the
absence of participation by the County and the School District, the Amended
Redevelopment Plan would be impracticable and the quantum of private investment
contemplated in connection therewith unlikely to be obtained, the City finds the
overall impact of the Amended Redevelopment Plan on the County and the School
District to be positive in terms of additional economic development and additional
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revenues. The County and School District have each agreed in their respective IGA
to allow for the application of TIF revenues to the extent provided in each case
therein, and, accordingly, the City does not anticipate declaring a surplus in
connection with the pledging of the special tax allocation fund to the payment and
securing of the TIF Obligations or the payment of the costs of the TIF Projects.
Nonetheless, tax increment collections attributable to the County and the School
District in excess of each entity's respective participation contemplated in the IGA's
shall be promptly remitted to the County and the School District in accordance with
the TIF Act.
vii. The City finds again anew and reaffirms the existence of the
conditions related to blight and declining property values contained in Ordinance No.
2013-19 of the City and the findings related thereto that (i) the Redevelopment
Project Area contains blighted and conservation areas and that private initiatives are
unlikely to alleviate these conditions without substantial public assistance; (ii)
property values in the Redevelopment Project Area would remain static or decline
without public intervention; and (iii) redevelopment in the Redevelopment Project
Area is in the interest of the health, safety, and general welfare of the citizens of the
City.
C. A certified copy of this Ordinance shall be filed in the office of the City Clerk
and the County Treasurer and shall constitute the authority for the extension and collection
of the taxes to be deposited in the special tax allocation fund.
D. The Mayor and City Administrator shall issue TIF Obligations to the
Corporation should they find that securing any Installment Purchase Agreement with the
TIF Obligations is in the best interest of the City in order to induce the Corporation to enter
into such agreement, issue the 2017 Bonds, and defray the costs of the TIF Projects that
form a portion of the Project. In such event, the right of the Corporation to receive debt
service payments on the TIF Obligations shall assigned by the Corporation to the Trustee
under the Trust Agreement and, when received, shall serve as a credit or offset against
Installment Payments to be made by the City under the Installment Purchase Agreement.
Section 4. Authorization for the Project; Authorization of Cash Contribution.
The Project is hereby approved. The appropriate officers and agents of the City are
empowered and directed to negotiate, execute and deliver contracts, agreements, certificates
and conveyances necessary or convenient to accomplish the Project, including the Financing
Documents.
The cash contribution described in Section 1(f) has previously been approved in the
City's most recent annual budget.
Section 5. Approval of Issuance of Bonds.
The City hereby approves the issuance by the Corporation of the Bonds, as a single
series, or from time to time as several series of Bonds. No 2017 Bonds shall mature later
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than November 18, 2048. The foregoing authorization related to the issuance of the 2017
Bonds is explicitly conditioned on the prior or simultaneous execution by the Mayor and
City Administrator of the Installment Purchase Agreement and the Base Lease. The City
also acknowledges that, in accordance with the provisions of the Installment Purchase
Agreement, the City will acquire absolute title to the Project upon payment of all amounts
due under the Installment Purchase Agreement; provided, however, that the City does not
hereby waive its right to terminate the Installment Purchase Agreement prior to such
payment in accordance with the provisions of the Installment Purchase Agreement.
Section 6. Approval of Base Lease, Installment Purchase Agreement, and Trust
Agreement.
The form, terms and provisions of the Base Lease presented to this meeting and filed
with the minutes of the Council at which this Ordinance was enacted are approved and all of
the terms, provisions and conditions thereof are hereby incorporated herein by reference as
if the Base Lease were set out in this Ordinance in its entirety. The Mayor is hereby
authorized, empowered and directed to execute, acknowledge and deliver, and the City
Clerk is hereby authorized, empowered and directed to attest, the Base Lease in the name
and on behalf of the City, and thereupon to cause the Base Lease to be delivered to the
Corporation and to cause the Base Lease (or memoranda thereof) to be recorded in the office
of the Register of Deeds for Aiken County. The Base Lease is to be in substantially the form
now before this meeting and hereby approved, or with such changes therein as shall be
approved by the Mayor and the City Administrator. Such changes shall be made upon the
advice of the City's legal counsel, particularly as to provide for any changes necessary to
provide for a direct placement to a lending institution, to provide for a refunding transaction
to extend the term, to provide for a series of 2017 Bonds to be issued on a federally tax-
exempt basis, or to provide for otherwise useful or necessary changes to carry out the
purposes of this Ordinance. Such changes may also include, after consulting with the City's
financial advisor, changes necessary to reflect a reduction in the scope of the Project to be
funded at a given time or the security offered bondholders. The execution thereof by the
Mayor and the City Clerk constitutes conclusive evidence of approval of any and all changes
or revisions therein from the form of Base Lease now before this meeting. Any amendment
to the Base Lease shall be executed in the same manner. The Base Lease may be effected
through one or more Base Leases.
The form, terms and provisions of the Installment Purchase Agreement presented to
this meeting and filed with the minutes of the Council at which this Ordinance was enacted
are approved and all of the terms, provisions and conditions thereof are hereby incorporated
herein by reference as if the Installment Purchase Agreement were set out in this Ordinance
in its entirety. The Mayor is hereby authorized, empowered and directed to execute,
acknowledge and deliver, and the City Clerk is hereby authorized, empowered and directed
to attest, the Installment Purchase Agreement in the name and on behalf of the City, and
thereupon to cause the Installment Purchase Agreement to be delivered to the Corporation
and to cause the Installment Purchase Agreement (or memoranda thereof) to be recorded in
the office of the Register of Deeds for Aiken County. The Installment Purchase Agreement
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is to be in substantially the form now before this meeting and hereby approved, or with such
changes therein as shall be approved by the Mayor and City Administrator. Such changes
shall be made upon the advice of the City's legal counsel, particularly as to provide for any
changes necessary to provide for a direct placement to a lending institution, to provide for a
refunding transaction to extend the term, to provide for a series of 2017 Bonds to be issued
on a federally tax-exempt basis, or to provide for otherwise useful or necessary changes to
carry out the purposes of this Ordinance. Such changes may also include, after consulting
with the City's financial advisor, changes necessary to reflect a reduction in the scope of the
Project to be funded at a given time or the security offered bondholders. The execution
thereof by the Mayor and the City Clerk constitutes conclusive evidence of approval of any
and all changes or revisions therein from the form of the Installment Purchase Agreement
now before this meeting. Any amendment to the Installment Purchase Agreement shall be
executed in the same manner. The Installment Purchase Agreement may be effected through
one or more Installment Purchase Agreements.
The City is not a party to the Trust Agreement, but the City acknowledges that the
Trust Agreement is an integral part of the documents related to the Financing. The form of
the Trust Agreement previously presented to the City Administrator and made available for
review by the Council is hereby approved by the City with such additions, deletions,
amendments and changes as may be deemed necessary by the parties thereto and approved
by the City Administrator prior to the consummation of the Financing. Such changes shall
be made upon the advice of the City's legal counsel, particularly as to any changes
necessary to provide for a direct placement to a lending institution or to provide for a
refunding transaction to extend the term or otherwise useful or necessary to carry out the
purposes of this Ordinance. The Trust Agreement may be effected through one or more
Trust Agreements, as any of such agreements may be supplemented or amended to carry out
the Financing.
Section 7. Selection of Trustee.
The City and the Corporation have selected U.S. Bank National Association as the
Trustee in connection with the Financing. The City Administrator is hereby authorized to
effect, with advice from bond counsel and the consent of the Corporation, the engagement of
the Trustee.
Section 8. Execution of Documents.
The Mayor and the City Administrator, or either one of them acting alone, and the
City Clerk are fully empowered and authorized to take such further actions and to execute
and deliver such additional documents as may be deemed necessary or desirable in order to
effectuate the execution and delivery of the Base Lease and the Installment Purchase
Agreement in accordance with the terms and conditions therein set forth, and the
transactions contemplated hereby and thereby, and the action of such officers in executing
and delivering any of such documents, in such form as the Mayor and City Administrator
shall approve, is hereby fully authorized. The Mayor and City Administrator are authorized
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to negotiate the bond purchase agreement related to the 2017 Bonds, the substantially final
form of which shall be reviewed by Mayor and City Administrator prior to pricing.
The City Administrator is hereby authorized on behalf of the City to "deem final"the
Preliminary Official Statement within the meaning of Rule 15c2-12 adopted by the U.S.
Securities and Exchange Commission under the Securities Exchange Act of 1934, as
amended, and to execute and deliver the final Official Statement.
Section 9. Tax Covenants.
The Corporation is issuing the Bonds on behalf of the City. Without limiting the
generality of the foregoing, the City represents and covenants, except as to any Bonds that
may be issued on a federally taxable basis, that:
(a) The City will not permit the proceeds of the Bonds or any facility financed or
refinanced with the proceeds thereof to be used in any manner that would cause the Bonds to
meet the private business tests of Section 141(b)(1) and (2) of the Code or the private loan
financing test of Section 141(c) of the Code.
(b) The City is not a party to nor will it enter into any contracts with any person
for the use or management of any facility provided with the proceeds of the Bonds that do
not conform to the guidelines set forth in Revenue Procedure 97-13.
(c) The City will not sell or lease the Facilities (as defined in the Installment
Purchase Agreement) obtained with proceeds of the Bonds or the Real Property to any
person unless it obtains the opinion of nationally recognized bond counsel that such lease or
sale will not adversely affect the designation of the Bonds as tax-exempt bonds.
(d) The Bonds will not be federally guaranteed within the meaning of Section
149(b) of the Code.
Section 10. Severability.
If any section, phrase, sentence, or portion of this Ordinance is for any reason held
invalid or unconstitutional by any court of competent jurisdiction, such portion shall be
deemed a separate, distinct, and independent provision, and such holding shall not affect the
validity of the remaining portions thereof.
Section 11. Repeal of Inconsistent Ordinances and Resolutions.
All ordinances and resolutions of the City, and any part of any ordinance or
resolution, inconsistent with this Ordinance are hereby repealed to the extent of such
inconsistency.
Section 12. Effective Date.
This Ordinance shall be effective upon its enactment by the Council.
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DONE, RATIFIED AND ADOPTED BY THE MAYOR AND CITY COUNCIL
OF THE CITY OF NORTH AUGUSTA, SOUTH CAROLINA ON THIS 6TH DAY
OF FEBRUARY, 2017.
(SEAL)
Lark W. Jones, Mayor
ATTEST:
Donna B. Young, City Cl k
First Reading: October 26, 2015
Public Hearing: October 26, 2015
1st Second Reading: October 17, 2016
2"a Second Reading: January 30, 2017
Third Reading: February 6, 2017
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EXHIBIT A
Form of Base Lease
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BASE LEASE AGREEMENT
between
CITY OF NORTH AUGUSTA, SOUTH CAROLINA
as lessor
and
NORTH AUGUSTA PUBLIC FACILITIES CORPORATION
as lessee
Dated _, 2017
All rights, title and interest of the North Augusta Public Facilities Corporation in this
Base Lease Agreement have been assigned to as Trustee under the Trust
Agreement dated of even date herewith, and are subject to the security interest of the
Trustee.
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INDEX
Page
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.1. Definitions of Words and Terms 2
Section 1.2. Rules of Construction 3
Section 1.3. Accounting Terms 3
ARTICLE II
REPRESENTATIONS
Section 2.1. Representations by the City 4
Section 2.2. Representations by the Corporation 4
ARTICLE III
LEASE OF THE 2017 REAL PROPERTY AND CONVEYANCE OF IMPROVEMENTS
Section 3.1. Transfer of Existing Facilities and Lease of the 2017 Real Property 6
Section 3.2. Purchase of the Facilities 6
Section 3.3. Assignments, Subleases and Mortgages 6
Section 3.4. Rent and Other Consideration 6
Section 3.5. Taxes and Insurance 6
Section 3.6. Granting of Easements, Rights of Way, Releases and Substitutions of
Property 7
ARTICLE IV
TERMINATION
Section 4.1. Termination 8
Section 4.2. Default by the Corporation 9
Section 4.3. Quiet Enjoyment 9
Section 4.4. No Merger 9
Section 4.5. Waiver of Personal Liability 9
Section 4.6. Maintenance of Premises 9
ARTICLE V
CONTROL OF 2017 Real Property AND
FACILITIES DURING BASE LEASE TERM
Section 5.1. Control of 2017 Real Property and Facilities During Base Lease Term 11
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ARTICLE VI
MISCELLANEOUS
Section 6.1. Covenants Running with the 2017 Real Property 12
Section 6.2. Binding Effect 12
Section 6.3. Severability 12
Section 6.4. Amendment, Changes and Modifications 12
Section 6.5. Execution in Counterparts 12
Section 6.6. Applicable Law 12
Section 6.7. Captions 12
Section 6.8. Notices 12
Section 6.9. Successors and Assigns 12
Section 6.10. Compliance 13
EXHIBIT A — Legal Description of the 2017 Real Property and Description of the
Existing Facilities A-1
EXHIBIT B — Form of Supplement to Base Lease Agreement (Additional Real
Property) B-1
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BASE LEASE AGREEMENT
THIS BASE LEASE AGREEMENT dated 2017 (this "Base
Lease") made and entered into by and between the CITY OF NORTH AUGUSTA, SOUTH
CAROLINA, a political subdivision of the State of South Carolina (the "City"), as lessor, and
the NORTH AUGUSTA PUBLIC FACILITIES CORPORATION, a nonprofit corporation
duly organized under the laws of the State of South Carolina (the "Corporation"), as lessee,
WITNESSETH:
WHEREAS, the Corporation is a nonprofit corporation formed under the provisions of
Title 33, Chapter 31 of the Code of Laws of South Carolina, 1976, as amended; and
WHEREAS, the City is a political subdivision of the State (as defined herein) and is
authorized under the provisions of Sections 5-7-30 and 5-7-40, Code of Laws of South
Carolina 1976, as amended (the "Act"), to enter into this Base Lease; and
WHEREAS, the City is the owner of the 2017 Real Property (as defined herein), which
is comprised of certain parcels of undeveloped property upon which will be constructed the
2017 Project (as defined in the hereinafter defined Purchase and Use Agreement), as well as
parcels of property upon which are located the North Augusta Municipal Center and the
Medac parking deck (the "Existing Facilities" as more specifically described on Exhibit A
hereto); and
WHEREAS, the City desires to lease the 2017 Real Property to the Corporation and to
convey the Existing Facilities to the Corporation so that the Corporation may provide funds to
provide for the design, acquisition, construction and equipping of the 2017 Project; and ; and
WHEREAS, the Facilities (as defined in the Purchase and Use Agreement) will be sold
by the Corporation to the City under the terms of an Installment Purchase and Use Agreement
dated of even date herewith (the "Purchase and Use Agreement") between the Corporation
and the City; and
WHEREAS, the payments to be made under the Purchase and Use Agreement and the
rights of the Corporation thereto (except for certain reserved rights as provided therein) are to
be assigned to U.S. Bank National Association, as trustee (the "Trustee"), pursuant to the
terms of a Trust Agreement dated of even date herewith (the "Trust Agreement"), between the
Corporation and the Trustee, in order to secure and provide a source of payment for certain
bonds, the proceeds of which are to be used for the purposes described above and in the Trust
Agreement; and
WHEREAS, the City desires to enter into this Base Lease in order to achieve the
foregoing purposes;
NOW, THEREFORE, in consideration of the premises and the mutual covenants and
agreements, including the payment of the Base Lease Rent herein set forth, the City and the
Corporation do hereby covenant and agree as follows:
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ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
SECTION 1.1. Definitions of Words and Terms. Capitalized terms not otherwise
defined herein are used with the meanings provided therefor in the Trust Agreement or the
Purchase and Use Agreement, unless some other meaning is plainly intended. In addition, the
following terms shall have the meanings set forth below, unless some other meaning is plainly
intended:
"2017 Real Property" means the real property, absent any improvements thereon, on
which the 2017 Project is or will be located, and the real property on which the North Augusta
Municipal Center is located, as described in Exhibit A hereto.
"Act" means Sections 5-7-30 and 5-7-40, Code of Laws of South Carolina 1976, as
amended.
"Additional Real Property" means any real property made subject to this Base Lease.
"Base Lease Rent" means the amount set forth in Section 3.4(a) of this Base Lease.
"Base Lease Term" means the term of this Base Lease which ends on the earlier of(i)
December 1, 2056, or (ii) the date on which the Series 2017B Bonds are discharged within the
meaning of Section 3.19(d) of the Trust Agreement.
"Corporation" means the North Augusta Public Facilities Corporation, a nonprofit
corporation formed under the laws of the State of South Carolina, and its successors and
assigns.
"Corporation Representative" means the person or persons at the time designated to
act on behalf of the Corporation in matters relating to this Base Lease, the Purchase and Use
Agreement and the Trust Agreement as evidenced by a written certificate furnished to the City
and the Trustee containing the specimen signature of such person or persons and signed on
behalf of the Corporation by its President or any Vice President. Such certificate may
designate an alternate or alternates, each of whom shall be entitled to perform all duties of the
Corporation Representative.
"Council" means the City Council of the City, as the governing body of the City, and
any successor body.
"Counsel" means an attorney duly admitted to practice law before the highest court of
ally state and, without limitation, may include legal counsel for either the City or the
Corporation.
"Event of Default" means (a) with respect to the Purchase and Use Agreement, any
Event of Default as defined in Section 8.1 of the Purchase and Use Agreement, and (b) with
respect to the Trust Agreement, any Event of Default as defined in Section 7.1 of the Trust
Agreement.
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C
"Existing Facilities" means the North Augusta Municipal Center and the Medac
parking deck, as more specifically described on Exhibit A hereto.
"Fiscal Year" means the 12-month period adopted by the City as its fiscal year for
financial reporting purposes. Currently, such Fiscal Year for the City begins on January 1 of
each year.
"Installment Payments" means those payments required to be made by the City by
Sections 4.1, 4.2 and 4.4 of the Purchase and Use Agreement.
"Ordinance" means the Ordinance enacted by the Council on January 30, 2017,
authorizing the City's execution and delivery of this Base Lease and the Purchase and Use
Agreement and consenting to the Trust Agreement.
"Purchase and Use Agreement" shall mean the Installment Purchase and Use
Agreement dated of even date herewith between the Corporation and the City.
"State" means the State of South Carolina.
"City" means the City of North Augusta, South Carolina.
"Trust Estate" means the Trust Estate described in the Granting Clauses of the Trust
Agreement.
"Trustee" means U.S. Bank National Association, a corporation organized and existing
under the laws of the United States of America, and its successor or successors and any other
trustee which at any time may be substituted in its place pursuant to and at the time serving as
trustee under the Trust Agreement.
SECTION 1.2. Rules of Construction. Words of the masculine gender shall be
deemed and construed to include correlative words of the feminine and neuter genders. Unless
the context shall otherwise indicate, the words importing the singular number shall include the
plural and vice versa, and words importing person shall include firms, associations and
corporations, including public bodies, as well as natural persons.
The table of contents hereto and the headings and captions herein are not a part of this
document.
SECTION 1.3. Accounting Terms. Accounting terms used herein and not otherwise
specifically defined shall have the meaning ascribed to such terms by accounting principles
generally accepted in the United States as from time to time in effect.
[END OF ARTICLE I]
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ARTICLE II
REPRESENTATIONS
SECTION 2.1. Representations by the City. The City represents, warrants and
covenants as follows:
(a) The City is a political subdivision of the State.
(b) The conveyance of title to the Existing Facilities and the demise and lease of the
2017 Real Property by the City to the Corporation, as provided in this Base Lease, in order to
allow the Corporation to provide for the design, acquisition, construction and equipping of the
2017 Project by the issuance of the Series 2017B Bonds and to provide for the sale of the
Facilities to the City pursuant to the Purchase and Use Agreement have been undertaken to
enable the City to provide suitable public facilities in the City.
(c) The Council has full power and authority to enact the Ordinance and the City
has full power and authority to enter into the transactions contemplated by this Base Lease and
to carry out its obligations hereunder.
(d) Neither the execution and delivery of this Base Lease, nor the fulfillment of or
compliance with the terms and conditions hereof, nor the consummation of the transactions
contemplated hereby, conflicts with or results in a breach of the terms, conditions or provisions
of any restriction or any agreement or instrument to which the City is now a party or by which
the City is bound.
(e) The City has not made, done, executed or suffered, and warrants that it will not
make, do, execute or suffer, any act or thing whereby the City's interests in the 2017 Real
Property and the Facilities shall be or may be impaired, changed or encumbered in any manner
whatsoever except as permitted by this Base Lease or the Purchase and Use Agreement.
(f) The City is the fee owner of the 2017 Real Property. The 2017 Real Property
as it exists on the date hereof is free and clear of all liens, encumbrances and restrictions
(including, without limitation, leases) other than Permitted Encumbrances.
SECTION 2.2. Representations by the Corporation. The Corporation represents,
warrants and covenants as follows:
(a) The Corporation is a nonprofit corporation duly incorporated under the laws of
the State and has corporate power to enter into this Base Lease, the Purchase and Use
Agreement and the Trust Agreement. By proper corporate action the officers of the
Corporation have been duly authorized to execute and deliver this Base Lease, the Purchase
and Use Agreement and the Trust Agreement.
(b) The execution and delivery of this Base Lease, the Purchase and Use Agreement
and the Trust Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or constitute a breach of or default under the Corporation's
articles of incorporation or bylaws or any bond, debenture, note or other evidence of
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indebtedness of the Corporation, or any contract, agreement, or instrument to which the
Corporation is a party or by which it is bound.
(c) To provide funds to defray the costs of the 2017 Project, the Corporation will
enter into the Trust Agreement pursuant to which it will issue the Series 2017B Bonds payable
from and secured by the Installment Payments under the Purchase and Use Agreement.
[END OF ARTICLE II]
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ARTICLE HI
LEASE OF THE 2017 REAL PROPERTY AND CONVEYANCE OF
IMPROVEMENTS
SECTION 3.1. Conveyance of the Existing Facilities and Lease of the 2017 Real
Property. The City hereby demises and leases to the Corporation and the Corporation hereby
leases from the City the 2017 Real Property for a term which ends on the expiration of the
Base Lease Term for the rentals and other consideration set forth in Section 3.4 hereof and in
accordance with the provisions of this Base Lease. The City hereby conveys the Existing
Facilities to the Corporation and the Corporation hereby accepts such conveyance from the
City. The parties hereto agree to amend Exhibit A to this Base Lease by the execution of a
Supplement to Base Lease Agreement, in substantially the form of Exhibit B attached hereto,
from time to time, if the City acquires Additional Real Property which should become subject
to this Base Lease.
SECTION 3.2. Purchase of the Facilities. Pursuant to the terms of the Purchase and
Use Agreement, the Corporation will design, acquire, construct and equip the 2017 Project
(but solely from the proceeds of the Series 2017B Bonds, when issued) and will convey title to
the Facilities (including but not limited to the 2017 Project) to the City, but subject to the
terms of the Trust Agreement and the reservation of certain rights under this Base Lease.
SECTION 3.3. Assignments, Subleases and Mortgages. Except as contemplated by
the Trust Agreement or permitted by the Purchase and Use Agreement, the Corporation may
not (a) mortgage or otherwise encumber or assign its rights under this Base Lease, (b) lease,
assign, transfer or otherwise dispose of its interest in the 2017 Real Property or the Facilities
or any portion thereof or (c) remove, modify or alter the 2017 Real Property or the Facilities,
without the consent of the City.
SECTION 3.4. Rent and Other Consideration. As and for rental hereunder and in
consideration for the leasing of the 2017 Real Property to the Corporation hereunder, the
Corporation agrees (a) to pay to the City an annual amount of One Dollar per year (the "Base
Lease Rent") and (b) to fulfill its obligations with respect to the 2017 Facilities as provided in
the Purchase and Use Agreement.
SECTION 3.5. Taxes and Insurance. The City shall pay and have responsibility for
all taxes on and insurance of the 2017 Real Property and the Facilities. All insurance shall
provide that the proceeds shall be payable to the City, the Corporation or the Trustee as their
interests may appear.
SECTION 3.6. Granting of Easements, Rights of Way, Releases and Substitutions
of Property. From time to time during the term hereof and so long as there is not an existing
Event of Default under the Purchase and Use Agreement and there has not occurred an Event
of Nonappropriation that has not been waived by the Corporation or the Trustee (if applicable),
the Corporation, at the request of the City, may execute such instruments as are necessary to
provide for the granting of easements or rights of way for road construction, utilities or in such
other instances as the City certifies are not inconsistent or incompatible with the continued use
of the balance of the 2017 Real Property for its intended purposes. Such instruments may
include a termination of this Base Lease with respect to such portion of the 2017 Real
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Property as is affected thereby or an acceptance or acknowledgment of the right of the grantee
of any such easement or right-of-way to continue to use such property notwithstanding the
exercise of any rights or remedies afforded to the Corporation hereunder or under the Purchase
and Use Agreement. Any request from the City hereunder shall be accompanied by copies of
any instruments proposed to be executed together with a certificate from the City to the effect
that: (a) the continued use of the 2017 Real Property affected thereby will not be impaired or
hampered thereby; (b) access to the 2017 Real Property for ingress and egress will be adequate
for the purposes for which the 2017 Real Property is intended to be used; and (c) the value of
the 2017 Real Property to the City will not be significantly diminished thereby.
The Corporation may also terminate this Base Lease with respect to any portion of the
2017 Real Property deemed excess or unneeded for the continued operation of the Facilities
and the related facilities for the purposes for which they were designed or are then being used,
and release its interest in such portion to the City, upon receipt by the Corporation of the
following: (a) a plat showing the location of the Facilities and related facilities and the portion
of the 2017 Real Property deemed excess or unneeded; (b) an amendment to Exhibit A hereto
revising the description of the affected parcel of property; (c) a certificate from an engineer or
architect stating that the remaining 2017 Real Property will be adequate for the continued
operation of the Facilities and related facilities for the purpose for which they were designed or
are then being used including a certification that there will be adequate access to the remaining
2017 Real Property for ingress and egress; and (d) a certification from the City that the portion
of the 2017 Real Property being released from the provisions hereof is excess to or unneeded
for the continued operation of the Facilities and related facilities for the purposes for which
they were designed or are then being used.
[END OF ARTICLE III]
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ARTICLE IV
TERMINATION
SECTION 4.1. Termination.
(a) This Base Lease shall terminate upon the completion of the Base Lease Term;
provided, however, in the event the City exercises the option to purchase the Facilities as
provided in Section 9.1 of the Purchase and Use Agreement and satisfies the conditions
thereof, then this Base Lease shall be considered terminated through merger of the leasehold
interest with the interest of the City and, provided further, that upon any partition of the
Facilities pursuant to Section 2.4 of the Purchase and Use Agreement, this Base Lease shall be
terminated with respect to that portion of the 2017 Real Property (the "City Real Property")
relating to any City Facilities (as defmed in the Purchase and Use Agreement) and the City
Real Property shall no longer be subject to this Base Lease and the Corporation shall have no
interest therein.
(b) The Corporation agrees, upon any termination or completion of the Base Lease
Term or the exercise by the City of its option to purchase as provided in Section 9.1 of the
Purchase and Use Agreement, to quit and surrender the 2017 Real Property and that all title
and interest in the Facilities and the 2017 Real Property shall vest in the City free and clear of
the encumbrance of this Base Lease and any other encumbrances except Permitted
Encumbrances. The Corporation agrees, upon any partition of the Facilities provided for in
Section 2.4 of the Purchase and Use Agreement, to quit and surrender the City Real Property
and that all title and interest in the City Facilities and the City Real Property shall vest in the
City free and clear of the encumbrance of this Base Lease and any other encumbrances except
Permitted Encumbrances.
If an Event of Default under the Purchase and Use Agreement occurs or if the City fails
to continue the Purchase and Use Agreement for the entire term thereof for any reason, the
Corporation shall have the right of possession of the portion of the 2017 Real Property (the
"Corporation Real Property") relating to the Corporation Facilities (as defined in the Purchase
and Use Agreement) as the result of a partition as provided for in Section 2.4 of the Purchase
and Use Agreement for the remainder of the Base Lease Term and shall have the right to
sublease the Corporation Facilities or transfer its leasehold interest in the Corporation Real
Property and in this Base Lease upon whatever terms and conditions it deems prudent;
provided that the Corporation Facilities shall always be operated in compliance with all
applicable governmental rules, regulations and orders. Both parties acknowledge that the City
has an insurable interest in the Corporation Facilities but not in any additions, alterations,
furnishings and fixtures provided in connection with the use of the Corporation Facilities by the
Corporation or any person to whom the Corporation enters into a lease, license or other such
agreement providing for occupancy temporary or long-term. Therefore, the City's obligation
to provide insurance and pay taxes under the provisions of Section 3.5 hereof shall be limited
to the 2017 Real Property and the Facilities as they existed as of the Partition Date (as defmed
in the Purchase and Use Agreement) and the Corporation shall provide the City with adequate
public liability and comprehensive risk insurance covering any additions, alterations, furnishings
and fixtures to the Corporation Facilities acquired, constructed or installed after the Partition
Date, and shall pay all taxes relating to any additions, alterations, furnishings and fixtures
located therein for the remainder of the Base Lease Term and will furnish the City with
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evidence thereof. In the event that the Corporation shall receive a payment for the transfer of
its leasehold interest or total rental payments for subleasing that are, after the payment of the
Corporation's expenses in connection therewith, including fees and expenses of the Trustee, in
excess of the principal amount of the Bonds then Outstanding (as defined in the Trust
Agreement) at the time of termination or default and the interest and premium, if any, due and
to become due thereon (with amounts so received to be credited first to such interest and then
to principal), then such excess shall be paid to the City by the Corporation, its assigns or its
lessee.
SECTION 4.2. Default by the Corporation. The City shall not have the right to
exclude the Corporation from the 2017 Real Property or the Facilities or to take possession of
the 2017 Real Property or the Facilities (except pursuant to the Purchase and Use Agreement)
or to terminate this Base Lease prior to the termination of the Base Lease Term
notwithstanding any default by the Corporation hereunder; except that if, upon exercise of the
option to purchase the Corporation's entire interest in the Facilities granted to the City in
Article IX of the Purchase and Use Agreement and after the payment of the purchase price
specified therein and the other sums payable under the Purchase and Use Agreement, the
Corporation fails to convey its interest in the Facilities to the City pursuant to said option, then
the City shall have the right to terminate this Base Lease, such termination to be effective 30
days after delivery of written notice of such termination to the Corporation. However, in the
event of any default by the Corporation hereunder, the City may maintain an action, if
permitted in equity, for specific performance.
SECTION 4.3. Quiet Enjoyment. Subject to the Purchase and Use Agreement, the
Corporation at all times during the term of this Base Lease shall peaceably and quietly have
and enjoy the 2017 Real Property and the Facilities.
SECTION 4.4. No Merger. Except as expressly provided herein, no union of the
interests of the City and the Corporation herein or in the Purchase and Use Agreement shall
result in a merger of this Base Lease and the title to the Facilities.
SECTION 4.5. Waiver of Personal Liability. All liabilities under this Base Lease on
the part of the Corporation are fully corporate liabilities of the Corporation as a corporation,
and, to the extent permitted by law, the City hereby releases each and every incorporator,
member, director and officer of the Corporation of and from any personal or individual liability
under this Base Lease, including without limitation the obligation to make payment of the Base
Lease Rent. No incorporator, member, director or officer of the Corporation shall at any time
or under any circumstances be individually or personally liable under this Base Lease for
anything done or omitted to be done by the Corporation hereunder.
SECTION 4.6. Maintenance of Premises. Subject to the provisions of the Purchase
and Use Agreement, the Corporation covenants that it will maintain or cause to be maintained
the 2017 Real Property, and will not cause, permit or suffer to be caused or permitted waste
thereto. At the conclusion of the term of this Base Lease, the 2017 Real Property shall be
returned to the City, together with the Facilities and any other improvements thereto, in
substantially the condition thereof as of the date hereof or the date the Additional Real
Property is added hereto, subject to normal wear and tear. Except as contemplated under the
Purchase and Use Agreement, the Corporation shall not make or consent to any other
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improvements, modifications or alterations to the 2017 Real Property or the Facilities or any
portion thereof, or remove any part thereof without the prior written consent of the City.
Prior to an Event of Nonappropriation that has not been waived, in the event of any damage,
destruction or condemnation of any of the 2017 Real Property, the provisions of Article VII of
the Purchase and Use Agreement shall be deemed to apply with respect to the 2017 Real
Property in like manner as provided therein with respect to Facilities, and the net proceeds
from any insurance policies, performance bonds or condemnation awards shall be applied in the
same manner for the benefit of 2017 Real Property as are Net Proceeds under Section 7.2 of
the Purchase and Use Agreement. After an Event of Nonappropriation that has not been
waived, in the event of any damage, destruction or condemnation of any of the 2017 Real
Property, the proceeds of any insurance or condemnation awards allocable to the Corporation's
interest in the 2017 Real Property shall be applied as directed by the Trustee either in the
manner provided in Section 7.2 of the Purchase and Use Agreement or to the retirement of all
Bonds then Outstanding and the excess, if any, remaining thereafter to such use as the City
may direct.
[END OF ARTICLE IV]
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ARTICLE V
CONTROL OF 2017 REAL PROPERTY AND
FACILITIES DURING BASE LEASE TERM
SECTION 5.1. Control of 2017 Real Property and Facilities During Base Lease
Term. Subject to the provisions of the Purchase and Use Agreement and Section 4.6 hereof,
during the Base Lease Term, the Corporation shall have complete control over the 2017 Real
Property and the Facilities and their operation.
[END OF ARTICLE V]
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ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Covenants Running with the 2017 Real Property. All covenants,
promises, conditions and obligations herein contained or implied by law are covenants running with
the 2017 Real Property and shall attach and bind and inure to the benefit of the City and the
Corporation and their respective heirs, legal representatives, successors and assigns, except as
otherwise provided herein.
SECTION 6.2. Binding Effect. This Base Lease shall inure to the benefit of and shall
be binding upon the City, the Corporation and their respective successors and assigns.
SECTION 6.3. Severability. In the event any provision hereof shall be determined to
be invalid or unenforceable, the validity and effect of the other provisions hereof shall not be
affected thereby.
SECTION 6.4. Amendment, Changes and Modifications. This Base Lease may not
be effectively amended, changed, modified, altered or terminated without the prior written
consent of the Trustee, if and to the extent required by the Trust Agreement, other than (a) to
make any Additional Real Property subject to this Base Lease, or (b) as provided in Section
3.6 hereof in connection with the granting of easements, releases and substitutions.
SECTION 6.5. Execution in Counterparts. This Base Lease may be executed
simultaneously in two or more counterparts, each of which shall be deemed to be an original
and all of which together shall constitute but one and the same instrument.
SECTION 6.6. Applicable Law. This Base Lease shall be governed by and
construed in accordance with the laws of the State.
SECTION 6.7. Captions. The Section and Article headings herein are for
convenience only and in no way define, limit or describe the scope or intent of any of the
provisions hereof.
SECTION 6.8. Notices. It shall be sufficient service of any notice, request,
complaint, demand or other paper required by this Base Lease to be given to or filed with the
City, the Corporation, or the Trustee if the same is given or filed in the manner and at the
addresses specified in the Trust Agreement.
SECTION 6.9. Successors and Assigns. All covenants, promises and agreements
contained in this Base Lease by or on behalf of or for the benefit of the City or the
Corporation, shall bind and inure to the benefit of their respective successors and assigns,
whether so expressed or not.
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SECTION 6.10. Compliance. Notwithstanding anything in this Base Lease to the
contrary, during the term of this Base Lease, neither the Corporation nor any assignee of the
Corporation's interest hereunder nor any sublessee of the Corporation shall operate the
Facilities for any purpose which is not in compliance with all applicable governmental rules,
regulations and orders.
[END OF ARTICLE VI]
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WITNESS the due execution of this Base Lease effective as of the date first above
written.
CITY OF NORTH AUGUSTA,
SOUTH CAROLINA
(SEAL)
Witness By:
Mayor
Attest
City Clerk
NORTH AUGUSTA PUBLIC FACILITIES
CORPORATION
(SEAL)
Witness
By:
President
Attest
Secretary
c
STATE OF SOUTH CAROLINA )
PROBATE
COUNTY OF AIKEN )
Personally appeared before me the undersigned witness who on oath says, that
(s)he saw the within named North Augusta Public Facilities Corporation, by its duly authorized
officer, sign, seal and as its act and deed deliver the within Base Lease Agreement, and that
(s)he, together with the other witness whose signature appears above, witnessed the execution
thereof.
SWORN TO AND SUBSCRIBED BEFORE ME
this _ day of , 2017.
Notary Public for South Carolina
My Commission Expires:
STATE OF SOUTH CAROLINA )
PROBATE
COUNTY OF AIKEN )
PERSONALLY appeared before me the undersigned witness, who, upon first being duly
sworn, deposes and says: that (s)he saw City of North Augusta, South Carolina by its duly
authorized officers, sign the foregoing Base Lease Agreement, and that (s)he, with the other
subscribing witness, witnessed the execution thereof
SWORN TO AND SUBSCRIBED BEFORE ME
this day of , 2017.
Notary Public for South Carolina
My Commission Expires:
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EXHIBIT A
LEGAL DESCRIPTION OF THE 2017 REAL PROPERTY
AND DESCRIPTION OF THE EXISTING FACILITIES
2017 Real Property
Existing Facilities
A-1
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EXHIBIT B
FORM OF SUPPLEMENT TO BASE LEASE AGREEMENT
(ADDITIONAL REAL PROPERTY)
THIS SUPPLEMENT TO BASE LEASE AGREEMENT (this "Supplement") dated
, 20_, by and between CITY OF NORTH AUGUSTA, SOUTH CAROLINA, a
political subdivision duly existing under the laws of the State of South Carolina, as lessor (the
"City"), and the NORTH AUGUSTA PUBLIC FACILITIES CORPORATION, a South
Carolina nonprofit corporation duly organized and existing under the laws of the State of
South Carolina, as lessee (the "Corporation").
WITNESSETH
WHEREAS, the City and the Corporation have entered into that certain Base Lease
Agreement dated _, 20_ (the "Base Lease"), and pursuant to Section 3.1(a)
thereof, enter into this Supplement for the purposes set forth herein (with all capitalized terms
used in this Supplement having the meanings set forth in the Base Lease).
NOW, THEREFORE, for and inconsideration of the mutual promises and covenants
herein contained, the parties hereto hereby agree as follows:
The Base Lease is hereby amended to delete Exhibit A attached thereto and replace it
in its entirety with Exhibit A-1 attached hereto.
Except as amended herein, the Base Lease shall remain in full force and effect.
WITNESSES: CORPORATION:
NORTH AUGUSTA PUBLIC FACILITIES
CORPORATION
By:
Its:
By:
Its:
B-1
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CITY:
CITY OF NORTH AUGUSTA,
SOUTH CAROLINA
By:
Its:
B-2
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EXHIBIT B
Form of Installment Purchase Agreement
INSTALLMENT PURCHASE AND USE AGREEMENT
between
NORTH AUGUSTA PUBLIC FACILITIES CORPORATION
as Seller
and
CITY OF NORTH AUGUSTA, SOUTH CAROLINA
as Buyer
North Augusta Public Facilities Corporation
Installment Purchase Revenue Bonds
(City of North Augusta Project)
Series 2017B
Dated , 2017
All rights, title and interest of North Augusta Public Facilities Corporation in this
Installment Purchase and Use Agreement (with certain exceptions) have been assigned to
U.S. Bank National Association, as Trustee under the Trust Agreement dated of even
date herewith, and are subject to the security interest of the Trustee.
INDEX
Page
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions 2
SECTION 1.2. Terms Defined in the Trust Agreement 6
SECTION 1.3. City Representations, Warranties and Covenants 6
SECTION 1.4. Corporation Representations, Warranties and Covenants 9
ARTICLE II
INSTALLMENT SALE OF FACILITIES; USE OF 2017 REAL PROPERTY AND
FACILITIES AND TERM THEREOF
SECTION 2.1. Installment Sale of Facilities; Use of 2017 Real Property and Facilities;
Term 11
SECTION 2.2. Termination 11
SECTION 2.3. Holdover Terms 12
SECTION 2.4. Surrender of Possession Upon Termination; Partition of Undivided
Interests 12
ARTICLE III
THE 2017 PROJECT; FINANCING
SECTION 3.1. Issuance of Series 2017B Bonds; Purchase and Installation or
Construction of the 2017 Project 14
SECTION 3.2. Administration of Acquisition and Construction Contracts 14
SECTION 3.3. Notices and Permits 14
SECTION 3.4. Disbursements from the Project Fund 14
SECTION 3.5. Defaults Under Acquisition and Construction Contracts 15
SECTION 3.6. Worker's Compensation Insurance 15
SECTION 3.7. Contractor's Performance 15
SECTION 3.8. General Public Liability and Property Damage Insurance 15
ARTICLE IV
INSTALLMENT PAYMENTS; ASSIGNMENT TO TRUSTEE
SECTION 4.1. Installment Payments 17
SECTION 4.2. Installment Payments Not Subject to Reduction, Offset or Other Credits 19
SECTION 4.3. Prepayment of Installment Payments 20
SECTION 4.4. Administrative Expenses 20
SECTION 4.5. Assignment of Purchase and Use Agreement, Manner of Payment 20
SECTION 4.6. Limited and Special Obligation of City 20
SECTION 4.7. Event of Nonappropriation 22
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ARTICLE V
COVENANTS OF THE CITY
SECTION 5.1. Maintenance and Operation of 2017 Real Property and Facilities;
Transfers 24
SECTION 5.2. Liens on 2017 Real Property and the Facilities 24
SECTION 5.3. Representations and Covenants Regarding Tax Exempt Status of Series
2017B Bonds 24
SECTION 5.4. Reports and Opinions; Inspections 25
SECTION 5.5. Immunity of Corporation and Trustee; Indemnification 25
SECTION 5.6. Compliance with Laws 25
SECTION 5.7. Insurance and Condemnation Proceeds 26
SECTION 5.8. Filing of Budget with Trustee 26
SECTION 5.9. Alterations of the 2017 Real Property and the Facilities; Removals 26
SECTION 5.10. Continuing Disclosure 26
ARTICLE VI
INSURANCE
SECTION 6.1. Types of Insurance and Coverage Requirements 27
SECTION 6.2. Self-Insurance Approval 28
SECTION 6.3 Title Insurance 28
ARTICLE VII
DAMAGE, DESTRUCTION AND
CONDEMNATION; USE OF NET PROCEEDS
SECTION 7.1. Damage, Destruction and Condemnation 29
SECTION 7.2. Obligation to Repair or Replace the Facilities 29
SECTION 7.3. Discharge of Obligation to Repair or Replace the 2017 Real Property and
the Facilities 30
SECTION 7.4. Cooperation of the Parties 30
ARTICLE VIII
DEFAULTS AND REMEDIES
SECTION 8.1. Events of Default 31
SECTION 8.2. Remedies 32
SECTION 8.3. Limitations on Remedies 33
SECTION 8.4. Cumulative Rights 33
SECTION 8.5. Discontinuance of Proceedings 33
ARTICLE IX
CONVEYANCE OF THE FACILITIES
SECTION 9.1. Optional Purchase of the Facilities 34
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SECTION 9.2. Manner of Conveyance 34
ARTICLE X
MISCELLANEOUS
SECTION 10.1. Limitation of Liability of the Corporation and the City 36
SECTION 10.2. Surrender of Possession Upon Termination 36
SECTION 10.3. Notices 36
SECTION 10.4. Assignments 37
SECTION 10.5. Severability 37
SECTION 10.6. Amendments 37
SECTION 10.7. Successors and Assigns 38
SECTION 10.8. Applicable Law 38
SECTION 10.9. Recordation 38
EXHIBIT A Legal Description of the 2017 Real Property A-1
EXHIBIT B Description of 2017 Project B-1
EXHIBIT C Permitted Encumbrances C-1
EXHIBIT D Base Payments Schedule D-1
EXHIBIT E Valuation of Facilities E-1
EXHIBIT F Form of Continuing Disclosure Undertaking F-1
EXHIBIT G Form of TIF Obligation G-1
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INSTALLMENT PURCHASE AND USE AGREEMENT
This INSTALLMENT PURCHASE AND USE AGREEMENT dated
2017 (this "Purchase and Use Agreement"), is made and entered into by and between the
NORTH AUGUSTA PUBLIC FACILITIES CORPORATION (together with its successors
and assigns, the "Corporation"), a nonprofit corporation formed under the laws of the State of
South Carolina (the "State"), as seller, and the CITY OF NORTH AUGUSTA, SOUTH
CAROLINA (the "City"), a political subdivision organized under the laws of the State, as
buyer.
WITNESSETH
WHEREAS, the Corporation is a nonprofit corporation formed under the provisions of
Title 33, Chapter 31, Code of Laws of South Carolina, 1976, as amended; and
WHEREAS, the City is a political subdivision of the State and is authorized under the
provisions of Sections 5-7-30 and 5-7-40, Code of Laws of South Carolina, 1976, as amended
(the "Act"), to enter into this Purchase and Use Agreement; and
WHEREAS, the Corporation and the City have entered into a Base Lease Agreement
dated of even date herewith (the "Base Lease") pursuant to which the City has conveyed the
Existing Facilities (as such term is defined in the Base Lease) to the Corporation and is leasing
the 2017 Real Property (as such term is defmed in the Base Lease), to the Corporation in
consideration of the issuance by the Corporation of the Series 2017B Bonds (as defmed herein)
to finance the design, acquisition, construction and equipping of certain public facilities (the
"2017 Project"); and
WHEREAS, the costs of the design, construction and equipping of the 2017 Project are
expected not to exceed $73,000,000; and
WHEREAS, in order to provide funds (together with other available amounts) to defray
costs of the 2017 Project, to refund the (i) original amount $6,350,000 Lease-Purchase
Obligation, Series 2007 of City of North Augusta, South Carolina, and (ii) original amount
$16,000,000 North Augusta Public Facilities Corporation Taxable Installment Purchase
Revenue Bond (Parking Garage and Infrastructure Project) Series 2017A, to fund the 2017
Reserve Sub-Account in an amount equal to the 2017 Reserve Requirement and to pay costs
of issuance of the Series 2017B Bonds, the Corporation has entered into a Trust Agreement
dated of even date herewith (the "Trust Agreement") by and between the Corporation and
U.S. Bank National Association, as trustee (the "Trustee"), and authorized the issuance of not
exceeding $69,000,000 of its Installment Purchase Revenue Bonds (City of North Augusta
Project), Series 2017B (the "Series 2017B Bonds") thereunder; and
WHEREAS, the City Council of the City of North Augusta (the "City Council"), the
governing body of the City, has enacted a bond ordinance on January 30, 2017 (the "Bond
Ordinance") (all capitalized terms used herein and not otherwise defmed shall have the
meaning ascribed thereto in the Bond Ordinance), the provisions of which authorize the City to
enter into an installment purchase transaction for the purpose of effecting the financing of the
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Project and the City's ultimate purchase thereof, subject to the conditions set forth in the Bond
Ordinance; and
WHEREAS, the City has agreed to make certain payments (the "Installment
Payments") for the acquisition of the Facilities (as defmed herein) and, the City has issued an
obligation (the "TIF Obligation") in the form attached hereto as Exhibit G, to the Corporation
secured by the entire Tax Allocation Fund as such term is defined in Ordinance No. 2013-19
(the "TIF Ordinance") of the City, which TIF Obligation requires the City to make periodic
payments from the TIF Allocation Fund to the Corporation (such payments, the "TIF
Payments"), and in return the Corporation has agreed to issue the Series 2017B Bonds to
defray the costs of and provide for the 2017 Project (which is inclusive of the Redevelopment
Projects) known as the Facilities herein and, pending such acquisition thereof, the City shall be
entitled to the use and occupancy of the 2017 Real Property and the Facilities
WHEREAS, the rights to receive Installment Payments are being assigned by the
Corporation to the Trustee under the Trust Agreement as security and a source of payment for
the Series 2017B Bonds;
WHEREAS, the rights to receive TIF Payments by virtue of the TIF Obligation are
being assigned by the Corporation to the Trustee under the Trust Agreement as security and a
source of payment for the Series 2017B Bonds, subject to the termination of this Purchase and
Use Agreement, and TIF Payments made by the City shall be credited against the City's
liability for Installment Payments.
NOW, THEREFORE, for and in consideration of the undertaking of the Corporation to
acquire, improve, construct and equip the 2017 Project, the undertaking of the City to pay the
Installment Payments and TIF Payments hereunder, the mutual covenants and agreements of
the parties hereto, and other good and valuable consideration, the sufficiency and receipt of
which is hereby acknowledged, the Corporation and the City, intending to be legally bound, do
hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. Capitalized terms not otherwise defmed herein shall have
the meanings provided therefor in the Trust Agreement or as set forth below.
"2017 Project" means, subject to Section 3.1 hereof, the design, acquisition,
construction and equipping of new public facilities to be constructed on the 2017 Real
Property. The 2017 Project is described on Exhibit B attached hereto.
"2017 Real Property" shall have the meaning set forth in the Base Lease. As of the
date of this Purchase and Use Agreement, the "2017 Real Property" is as described on Exhibit
A hereof.
"Acquisition and Construction Contracts" means any acquisition or construction
contract between the City, on behalf of the Corporation, and any contractor or other person or
between any contractor or subcontractor and other person (under which contract the City has
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rights thereunder) with respect to the 2017 Project to be fmanced with Bond Proceeds and the
Initial Installment Payments.
"Additional Bonds" has the meaning given in the Trust Agreement.
"Additional Facilities" means any facilities of the City acquired, improved, renovated
or constructed by the Corporation with the proceeds of Additional Bonds and made subject to
this Purchase and Use Agreement by an amendment to Exhibit B hereof
"Additional Payments" means that portion of the Installment Payments specified in
Sections 4.1, 4.2 and 4.4 hereof as Additional Payments.
"Additional Real Property" means any real property in addition to the 2017 Real
Property that is or will become the site of Additional Facilities and as described in a
supplement to the Base Lease.
"Available Sources" means any legally available funds lawfully appropriated by the
Council, and which may include, but is not limited to, general fund monies, proceeds of general
obligation debt or Additional Bonds, accommodations fees and hospitality fees imposed and
collected pursuant to Title 6, Chapter 1, Articles 5 and 7, respectively, of the Code of Laws of
South Carolina 1976, as amended, revenues derived from the Facilities, including particularly
parking and stadium revenues, and any revenues available pursuant to the TIF Ordinance.
"Base Payments" means that portion of the Installment Payments specified in Section
4.1 hereof as Base Payments.
"Base Lease" means the Base Lease Agreement dated of even date herewith, between
the City and the Corporation, as it may be amended or supplemented from time to time.
"Base Lease Rent" has the meaning given to such term in the Base Lease.
"Bond Fund" means the fund of such name established pursuant to Section 5.5 of the
Trust Agreement.
"Bond Proceeds" means the gross proceeds received from the issuance and sale of the
Series 2017B Bonds.
"City Facilities" means that portion of the Facilities allocated to the City as the result
of a partition under the provisions of Section 2.4 hereof.
"Completion Date" means the date on which the Corporation and the City provide the
final requisition to the Trustee pursuant to Section 3.4(b) hereof.
"Corporation Facilities" means that portion of the Facilities allocated to the
Corporation as the result of a partition under the provisions of Section 2.4 hereof
"Council" means the City Council of the City, as the governing body of the City, and
any successor body.
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"Environmental Laws" means all federal, state and local laws, rules, regulations,
ordinances, programs, permits, guidance, orders and consent decrees relating to health, safety
and environmental matters, including, but not limited to, the Resource Conservation and
Recovery Act, as amended, the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended, the Toxic Substances Control Act, as amended, the Clean
Water Act, as amended, the Clean Air Act, as amended, the Superfund Amendments and
Reauthorization Act of 1986, as amended, state and federal superfund and environmental
cleanup programs and laws and U.S. Department of Transportation regulations.
"Event of Default" means the events set forth in Section 8.1 of this Purchase and Use
Agreement.
"Event of Nonappropriation" means (i) the failure by the City, for any reason, to
specifically budget and appropriate moneys for a Fiscal Year that may be lawfully used to pay
amounts due hereunder for such Fiscal Year or (ii) the provision by a City Representative of
written notice to the Corporation and the Trustee of the City's intention to not appropriate
funds that may be lawfully used to pay amounts due hereunder for a Fiscal Year. An Event of
Nonappropriation will be deemed to occur on the earlier of the date on which the City gives
notice to the Corporation and the Trustee under clause (ii) above or the January 15 following
the commencement of a Fiscal Year in which a budget has been adopted which fails to
appropriate amounts due hereunder for such Fiscal Year; provided, however, that an Event of
Nonappropriation may be waived as provided for in Section 4.7 herein. Notwithstanding the
foregoing, an Event of Nonappropriation shall not be deemed to occur if the City adopts an
ordinance prior to December 1 of any Fiscal Year authorizing the issuance of bonds, notes or
other obligations for the purpose of paying all Installment Payments due in the succeeding
Fiscal Year.
"Facilities" means the improvements currently existing and to be constructed on the
2017 Real Property (including the Existing Facilities and the 2017 Project (subject to Section
3.1 hereof)), including fixtures and any future additions, modifications and substitutions to any
facilities on the 2017 Real Property and any personal property financed with the proceeds of
the Series 2017B Bonds.
"Fiscal Year" means the fiscal year of the City, currently beginning on each January 1
and ending on the succeeding December 31.
"Force Majeure" means, without limitation, the following: acts of God; strikes,
lockouts or other industrial disturbances; acts of public enemies or terrorism; orders or
restraints of any kind of the government of the United States of America or of the State or any
of their departments, agencies or officials of any civil or military authority; insurrection; riots;
landslides; earthquakes; flood; fire; storms; droughts; explosion; breakage or accidents to
machinery, transmission pipes or canals; or any other cause or event not within the control of
the party seeking the benefit of force majeure and not due to its own negligence.
"Hazardous Material" means and includes any pollutant, contaminant, or hazardous,
toxic or dangerous waste, substance or material (including without limitation petroleum
products, asbestos-containing materials and lead), the generation, handling, storage,
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transportation, disposal, treatment, release, discharge or emission of which is subject to any
Environmental Law.
"Holder" or "Bondholder" means the Person in whose name a Bond is registered on
the Register, subject to Section 12.14 of the Trust Agreement.
"Initial Installment Payments" means the payments to be paid by the City pursuant to
Section 4.1 hereof.
"Installment Payments" means the payments to be paid by the City pursuant to
Sections 4.1, 4.2 and 4.4 hereof, and shall include, without limitation, the Initial Installment
Payments.
"Net Proceeds" when used with respect to any proceeds from policies of insurance
required hereby or any condemnation award, or any proceeds resulting from default under, or
recovery under performance and payment bonds related to, any Acquisition or Construction
Contract relating to the 2017 Project, or proceeds from any liquidation of any part of the
Facilities, means the amount remaining after deducting from the gross proceeds thereof all
expenses, including, without limitation, reasonable attorney's fees and costs, incurred in the
collection of such proceeds or award.
"Partition Consultant" means a person, firm or corporation selected by the Trustee,
who or which is experienced in public finance and in the valuation of public facilities and is not
a full-time employee of the Trustee, the City or the Corporation.
"Partition Date" shall have the meaning given such term in Section 2.4 hereof
"Permitted Encumbrances" means, as of any particular time, (i) liens for taxes and
assessments not then delinquent, or liens which may remain unpaid pursuant to the provisions
of Sections 4.1 and 4.2, respectively, of this Purchase and Use Agreement; (ii) the other
Security Documents; (iii) utility, access and other easements and rights-of-way, restrictions and
exceptions which do not interfere with or impair the use of the 2017 Real Property or the
Facilities, including rights or privileges in the nature of easements; (iv) any fmancing statements
filed to [perfect/[provide notice of] security interests] pursuant to this Purchase and Use
Agreement or the Trust Agreement; and (v) the matters described on Exhibit C hereto.
"Project Fund" means the fund of such name established pursuant to Section 5.2 of the
Trust Agreement.
"Purchase Option Price" means an amount equal to the amount required to defease or
otherwise discharge the Series 2017B Bonds under the Trust Agreement plus the amount of
any Additional Payments which are due or accrued hereunder at the time which any purchase
option hereunder is exercised.
"Purchase Price" means the sum of all Base Payments to be made hereunder which
Purchase Price may be recalculated in the event of any prepayment of Base Payments provided
for in Section 9.1 hereof.
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"Security Documents" means this Purchase and Use Agreement, the Base Lease, the
Trust Agreement, financing statements, if any, and any other instruments or documents
providing security for the Holders of the Series 2017B Bonds.
"Series 2017B Bonds" means any or all of the not exceeding $69,000,000 Installment
Purchase Revenue Bonds (City of North Augusta Project), Series 2017B of the North Augusta
Public Facilities Corporation, authorized by and secured under the Trust Agreement, and as
may be issued in a single series or from time to time in multiple series.
"State" means the State of South Carolina.
"Taxable Series" means a series of the Series 2017B Bonds so designated, the interest
upon which is not excludable from income for federal income tax purposes.
"Waiver Period" means the period of time commencing on the date an Event of
Nonappropriation is deemed to occur and ending and including the date on the later of (i) the
next following February 1 or (ii) the date on which the 2017 Reserve Sub-Account of the
Reserve Account becomes fully depleted by the Trustee pursuant to the provisions of Section
5.5 of the Trust Agreement (provided, however, that such 2017 Reserve Sub-Account is
deemed to be fully depleted when insufficient funds remain therein to make the payments
required to be made to the Holders on the subsequent Bond Payment Date).
SECTION 1.2. Terms Defined in the Trust Agreement Capitalized terms used
herein and not otherwise defined shall have the meanings set forth in the Trust Agreement
unless the context clearly indicates to the contrary.
SECTION 1.3. City Representations, Warranties and Covenants. The City makes
the following representations, warranties and covenants:
(a) The City is a political subdivision of the State and has full power and legal right
to enter into this Purchase and Use Agreement and the Base Lease and to perform its
obligations hereunder and thereunder. The City's actions in making and performing its
obligations under this Purchase and Use Agreement and the Base Lease have been duly
authorized by all necessary governmental action and will not violate or conflict with any law or
governmental rule or regulation, or any mortgage, agreement, instrument or other document by
which the City or its properties are bound.
(b) The City is a political subdivision within the meaning of Section 103(c)(1) of the
Code.
(c) The City will take such action as is necessary to assure that the 2017 Project is
completed, furnished and occupied by the City. In the event the amounts available from the
Bond Proceeds together with the Initial Installment Payments appear to be insufficient for such
purpose, the City will use its best efforts to take one or more of the following steps: (i)
cooperate with the Corporation to make such modifications or changes in the 2017 Project as
will allow the cost thereof to be funded within the amount available from the Bond Proceeds
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and Initial Installment Payments; (ii) make arrangements with the Corporation for the sale of
Additional Bonds; or (iii) provide for the payment of such costs from Available Sources.
(d) The City will take such action as is necessary to ensure that the Bond Proceeds
and the Initial Installment Payments, other than amounts set aside in the Trust Agreement for
payment of costs of issuance or funding of reserves, are applied solely to pay the costs of the
2017 Project and refunding the (i) original amount $6,350,000 Lease-Purchase Obligation,
Series 2007 of City of North Augusta, South Carolina, and (ii) original amount $16,000,000
North Augusta Public Facilities Corporation Taxable Installment Purchase Revenue Bond
(Parking Garage and Infrastructure Project) Series 2017A.
(e) Except as to any Taxable Series and as provided in the last paragraph under
Section 2.1 hereof, no portion of the 2017 Real Property or the Facilities will be used in the
trade or business of a person who is not a "political subdivision" within the meaning of Section
103(c)(1) of the Code, without the written approval of Bond Counsel.
(f) The amounts, if any, spent by the City from its own funds to pay costs of
acquisition of the 2017 Real Property or the design, acquisition, construction, and equipping of
the 2017 Project for which it intends to reimburse itself from Bond Proceeds were not
expended more than 60 days prior to the date of the adoption by the Council of a resolution
authorizing the financing of the 2017 Project, and expressing the intent to enter into this
Purchase and Use Agreement, except with respect to certain preliminary expenditures for
architectural, engineering, surveying, soil testing and similar costs. No site preparation or
similar costs incident to the commencement of construction were incurred prior to 60 days
prior to the date of adoption of a resolution by the Council relating to the issuance of the
Series 2017B Bonds.
(g) There are no proceedings pending or, to the knowledge of the City, threatened
against or affecting the City, except as disclosed in the official statement for the Series 2017B
Bonds, in any court or before any governmental authority or arbitration board or tribunal that,
if adversely determined, would materially and adversely affect the properties, operations,
prospects or condition (financial or otherwise) of the City, or the corporate existence or
powers or ability of the City to enter into and perform its obligations under this Purchase and
Use Agreement or the Base Lease.
(h) The execution and delivery of this Purchase and Use Agreement and the Base
Lease (together, the "City Agreements"), and the consummation of the transactions provided
for herein and therein, and compliance by the City with the provisions of the City Agreements:
(i) are within the governmental powers and have been duly and validly
authorized by all necessary governmental and other action on the part of the City; and
(ii) do not and will not conflict with or result in any material breach of any
of the terms, conditions or provisions of, or constitute a default under, any indenture,
loan agreement or other agreement or instrument, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the City (other than
this Purchase and Use Agreement) or any governmental restriction to which the City is
a party or by which the City, its properties or operations may be bound or with the
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giving of notice or the passage of time or both would constitute such a breach or
default or result in the creation or imposition of any such lien, charge or encumbrance,
which breach, default, lien, charge or encumbrance could materially and adversely affect
the validity or the enforceability of the City Agreements or the City's ability to perform
fully its obligations under the City Agreements; nor will such action result in any
violation of any laws, ordinances, governmental rules or regulations or court or other
governmental orders to which the City, its properties or operations are subject.
(i) No event has occurred and no condition exists that constitutes an Event of
Default or which, upon the execution and delivery of this Purchase and Use Agreement, or the
passage of time or giving of notice or both, would constitute an Event of Default. The City is
not in violation in any material respect, and has not received notice of any claimed material
violation (except such violations as do not, and shall not, have any material adverse effect on
the transactions herein contemplated and the compliance by the City with the terms hereof, or
the other Security Documents), of any terms of any court order, statute, regulation, ordinance,
agreement, or other instrument to which it is a party or by which it, its properties or its
operations may be bound.
(j) This Purchase and Use Agreement is a legal, valid and binding obligation of the
City, enforceable against the City in accordance with its terms except as such enforceability
may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally and by general principles of equity; anything herein to the contrary
notwithstanding, this Purchase and Use Agreement is subject in its entirety to the right of the
City to terminate this Purchase and Use Agreement and all the terms and provisions hereof by
failing to budget and appropriate moneys specifically to pay Installment Payments, as provided
in Sections 2.2, 4.6 and 4.7 hereof.
(k) The use and the operation of the 2017 Real Property and the Facilities in the
manner contemplated will not conflict in any material respect with any zoning, water or air
pollution or other ordinance, order, law, rule, or regulation applicable to the 2017 Real
Property and the Facilities including, without limitation, Environmental Laws. The City has
caused or will cause the 2017 Project to be designed in accordance with all applicable federal,
state and local laws or ordinances (including rules and regulations) relating to zoning, planning,
building, safety and environmental quality. The City will operate or will cause the Facilities to
be operated in compliance with the requirements of all such laws, ordinances, rules and
regulations, including, without limitation, Environmental Laws. The City further covenants and
agrees to comply in all material respects with and materially conform to, or use its reasonable
efforts to cause other persons whose obligation it is to so comply by contract or pursuant to
law to comply in all material respects with and materially conform to, all present and future
laws, statutes, codes, ordinances, orders, judgments, decrees, injunctions, rules, regulations and
every applicable governmental authority, including Environmental Laws applicable to the 2017
Real Property and the Facilities, and all covenants, restrictions and conditions now or hereafter
of record which may be applicable to the use, manner of use, occupancy, possession, operation,
maintenance, alteration, repair or reconstruction of the 2017 Real Property and the Facilities,
including building and zoning codes and ordinances (collectively, the "Legal Requirements"),
provided that the City shall not be in default hereunder so long as the City promptly after
receiving an actual written notice of any noncompliance, files a copy thereof with the Trustee
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and the City commences and uses its diligent efforts to cause compliance with such Legal
Requirements, as long as the failure to comply and conform does not subject the 2017 Real
Property or the Facilities to any material danger of being forfeited or lost as a result thereof
The City possesses or will possess, and the City hereby agrees to maintain and obtain in the
future, all necessary licenses and permits, or rights thereto, to operate the Facilities as proposed
to be operated, and all such licenses, permits or other approvals required in connection with
the operation of the Facilities have been duly obtained and are in full force and effect except
for any such licenses, permits or other approvals that are not yet required and that will be duly
obtained not later than the time required or the failure to obtain which will not materially and
adversely affect the operation of the Facilities. The City covenants and agrees to do all things
necessary to preserve and keep in full force and effect its franchises, rights, powers and
privileges as the same relate to the Facilities.
(1) The City has approved the Corporation and the issuance by the Corporation of
the Series 2017B Bonds.
(m) The City has not terminated any lease, lease-purchase agreement or installment
purchase agreement by nonappropriation.
(n) The officer of the City charged with the responsibility for formulating budget
proposals shall include in the budget proposals for review and consideration by the Council in
any Fiscal Year in which this Purchase and Use Agreement shall be in effect, provision for all
Installment Payments required for such Fiscal Year under this Purchase and Use Agreement.
(o) To its knowledge, except as disclosed in the official statement for the Series
2017B Bonds, Hazardous Materials have not at any time been generated, used, treated,
recycled, stored on, or transported to or from, or released, deposited or disposed of on the
portion of the 2017 Real Property owned by it on the date hereof other than in compliance at
all times with all applicable Environmental Laws.
SECTION 1.4. Corporation Representations, Warranties and Covenants. The
Corporation makes the following representations, warranties and covenants:
(a) The Corporation is a duly organized and validly existing nonprofit corporation
created under the laws of the State, has the requisite power to carry on its present and
proposed activities, and has full power, right and authority to enter into this Purchase and Use
Agreement, the Trust Agreement and the Base Lease and to perform each and all of the
obligations of the Corporation provided therein.
(b) The Corporation has taken or caused to be taken all requisite corporate action
to authorize the execution and delivery of, and the performance of its obligations under, this
Purchase and Use Agreement, the Base Lease, the Trust Agreement and each of the
Acquisition and Construction Contracts to which it is or will be a party.
(c) By proper corporate action the officers of the Corporation have been duly
authorized to execute and deliver this Purchase and Use Agreement, the Base Lease and the
Trust Agreement.
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(d) The execution and delivery by the Corporation of this Purchase and Use
Agreement, the Base Lease and the Trust Agreement and the consummation by the
Corporation of the transactions contemplated hereby and thereby have not and will not conflict
with or constitute a breach of or default under the Corporation's articles of incorporation or
bylaws or any bond, debenture, note or other evidence of indebtedness of the Corporation, or
any contract, agreement, or instrument to which the Corporation is a party or by which it is
bound.
(e) Each of this Purchase and Use Agreement, the Base Lease, the Trust Agreement
and each Acquisition and Construction Contract to which the Corporation is or will be a party
has been or will be duly executed and delivered by the Corporation and constitutes or will
constitute a legal and valid obligation of the Corporation, enforceable against the Corporation
in accordance with its terms, except as enforcement may be limited by laws affecting creditors'
rights generally and except as equitable remedies may be limited by judicial discretion.
(0 There is no litigation pending and served on the Corporation that challenges the
Corporation's authority to execute, deliver or perform its obligations under this Purchase and
Use Agreement and the Corporation has disclosed any threatened litigation with respect to
such matters of which the Corporation is aware.
(g) The Corporation is in material compliance with all applicable laws, regulations
and ordinances, including, but not limited to, those applicable to the Corporation's activities in
connection with this Purchase and Use Agreement.
(h) The Corporation is a South Carolina nonprofit, public benefit corporation, no
part of the net income of which inures to the benefit of any private individual or organization.
(i) To fmance the 2017 Project and for such other purposes contemplated hereby
and by the Trust Agreement, the Corporation will enter into the Trust Agreement pursuant to
which it will issue the Series 2017B Bonds payable from and secured by the Installment
Payments under this Purchase and Use Agreement.
[END OF ARTICLE I]
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ARTICLE II
INSTALLMENT SALE OF FACILITIES; USE OF 2017 REAL PROPERTY AND
FACILITIES AND TERM THEREOF
SECTION 2.1. Installment Sale of Facilities; Use of 2017 Real Property and
Facilities; Term. The Corporation hereby agrees to sell the Facilities to the City in
accordance with the provisions hereof On the date hereof, the Corporation has a valid
leasehold interest in the 2017 Real Property and holds fee title to the improvements thereon.
Upon the payment of the Initial Installment Payment, the City shall obtain title to
certain specific Facilities, as well as a certain undivided interest in the Facilities, identified at
Exhibit E.
Upon the payment of each payment of Base Payments from funds other than amounts
constituting Bond Proceeds (including income from the investment of such amounts), title to an
undivided interest in the Facilities equal to that percentage of the Purchase Price represented by
such payment will transfer from the Corporation to the City without further action by either
party hereto.
Any prepayment of Base Payments which is used to redeem the Series 2017B Bonds
will result in a recalculation of the Purchase Price to take account of such prepayment and,
upon the making of such prepayment, the City shall be credited with an undivided ownership
interest in the Facilities equal to that percentage of the total Purchase Price, as adjusted,
represented by the total of all Base Payments made, including the prepayment on such date.
Subject to the provisions of Article VIII hereof, the City shall have the exclusive right
to occupy and use the 2017 Real Property and the Facilities during the term hereof. Subject to
the provisions of Sections 2.2 and 2.3 hereof, this Purchase and Use Agreement shall be for a
term beginning with the date of execution and delivery hereof, and ending on 1,
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During the term hereof, the City may permit use of portions of the 2017 Real Property
and the Facilities subject to the following limitations: (i) the 2017 Real Property and the
Facilities shall not be used in any manner that interferes with the use of such property by the
City for the purposes for which it was designed or is then being used; (ii) any such agreement
shall, subject to the provisions of any existing non-disturbance agreement between the
Corporation and [entity leasing baseball stadium and support facilities], be voidable by the
Trustee upon the occurrence of an Event of Default or an Event of Nonappropriation
hereunder; and (iii) the City shall monitor all such use to ensure continued compliance with the
provisions of the Federal Tax Certificate, if any, relating to any Series 2017B Bonds and
Section 5.3 hereof
SECTION 2.2. Termination. The term of this Purchase and Use Agreement shall
terminate upon the earliest of any of the following events:
(a) The occurrence of an Event of Nonappropriation which is not thereafter duly
waived or cured;
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(b) The purchase by the City of all of the Facilities as provided in Article IX of this
Purchase and Use Agreement;
(c) The occurrence of an Event of Default under and termination of this Purchase
and Use Agreement by the Corporation or Trustee under Article VIII hereof; or
(d) The later of 1, 2046, which date constitutes the last day of the term
hereof, or such date as all Installment Payments due hereunder shall be paid in full.
Termination of the term of this Purchase and Use Agreement shall terminate all
obligations of the City under this Purchase and Use Agreement, including its obligations to pay
future Installment Payments, TIF Payment obligations under the TIF Obligation, and other
amounts that have not been appropriated (excluding, however, amounts payable under Section
2.3 hereof and other amounts specifically provided for herein), subject to identification as
provided in Section 2.4 hereof, shall terminate the City's rights of possession under this
Purchase and Use Agreement of the Corporation Facilities (except to the extent of any
conveyance pursuant to Article IX of this Purchase and Use Agreement); but all other
provisions of this Purchase and Use Agreement, including all obligations of the Corporation
with respect to the Holders of the Bonds and the receipt and disbursement of funds and all
rights and remedies of the Corporation specifically provided herein, shall be continuing until the
Trust Agreement is discharged as provided therein. Notwithstanding the foregoing, termination
of the term of this Purchase and Use Agreement shall not impair the City's rights as landlord
or the Corporation's rights as tenant under the Base Lease, except as provided in the Base
Lease.
SECTION 2.3. Holdover Terms. In the event the City fails to deliver possession to
the Corporation of the Corporation Facilities or any part thereof pursuant to Section 2.4
hereof, the City shall be unconditionally liable for the payment of all Installment Payments,
including Additional Payments, for successive six month periods with each such period
commencing on the Bond Payment Date following the last due date of Base Payments
hereunder until the City delivers possession of the Corporation Facilities to the Corporation.
The obligations of the City under this Section 2.3 shall not in any manner constitute a pledge
of the full faith, credit or taxing power of the City within the meaning of any State
constitutional or statutory provision.
SECTION 2.4. Surrender of Possession Upon Termination; Partition of
Undivided Interests. Upon the occurrence of either an Event of Default or an Event of
Nonappropriation which results in termination hereof, and at the written direction of the
Trustee, the City and the Corporation shall proceed to partition the Facilities so that the
percentage of undivided interests in the title to the Facilities will be converted, to the extent
feasible, into like percentages of title in accordance with Exhibit E hereof and the following
provisions. The date upon which the Trustee gives such written direction shall be the
"Partition Date."
Division of Facilities. Within a reasonable time after the Partition Date, the Trustee
shall propose a division of the Facilities. The Trustee may in its sole discretion select a
Partition Consultant to assist, consult with and make recommendations to the Trustee in the
division of the Facilities. The Trustee and the Partition Consultant, if selected, shall endeavor,
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to the extent practicable, to allocate the Facilities between the City and the Corporation in a
fair and equitable fashion taking into account the following factors: (1) entire
buildings/facilities, if possible, will be assigned to each of the City and the Corporation; and (2)
if portions of the Facilities or entire buildings/facilities will be assigned to each of the
Corporation and the City, the Trustee and the Partition Consultant, if selected, shall propose
such partition as will, in the aggregate, best protect the interests of the Holders (subject to the
provisions of this Section 2.4).
Valuation of Facilities. For purposes of any partition, the Facilities are valued in the
respective amounts as set forth on Exhibit E hereof and the percentage of the Facilities being
purchased on an annual basis are also set forth on Exhibit E hereof, each subject to adjustment
as stated on Exhibit E hereof. In allocating the Facilities to the percentage of undivided
interests to be conveyed to the City or retained by the Corporation, such values and
percentages as set forth on Exhibit E hereof shall be used.
Partition Report; Finality. The Trustee or the Partition Consultant, if selected, shall
make a report regarding the division of the Facilities as soon as practicable after the Partition
Date. In the discretion of the Trustee the partition report shall be final and binding upon all
parties.
Instruments of Conveyance. Within a reasonable time (but in no event later than 60
days) after the partition report becomes final, the City and the Corporation shall exchange
deeds or other instruments vesting title to such of the Facilities as is required to effect such
partition; provided, however, that any conveyance deed or other instrument made by the
Corporation shall be made in the manner and subject to the conditions set forth in Section 9.2
hereof. Immediately thereafter, the City shall deliver or cause to be delivered peaceable
possession of the Corporation Facilities to the Corporation, together with the related portion of
the 2017 Real Property, without delay, in good repair and operating condition, excepting
reasonable wear and tear.
[END OF ARTICLE II]
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ARTICLE III
THE 2017 PROJECT; FINANCING
SECTION 3.1. Issuance of Series 2017B Bonds; Purchase and Installation or
Construction of the 2017 Project. Upon the issuance of the Series 2017B Bonds, the
Trustee will deposit from the proceeds of the Series 2017B Bonds, the amount specified in
Section 5.1(a) of the Trust Agreement to be used (among other things) to pay the costs of
design, acquisition, construction and equipping of the 2017 Project.
The Corporation and the City acknowledge that the City will be responsible for any and
all Acquisition and Construction Contracts necessary or appropriate for the purchase and
installation, or for any construction or installation to be performed in connection with the 2017
Project and the City shall be the agent of the Corporation for all such purposes. The City may
install machinery, equipment and other tangible personal property in the Facilities and on the
2017 Real Property and all such machinery, equipment and other tangible personal property not
acquired or financed with the proceeds of the Bond Proceeds or the Initial Installment
Payments will remain the sole property of the City.
SECTION 3.2. Administration of Acquisition and Construction Contracts. The
City shall be responsible for preparing, administering, amending and enforcing the Acquisition
and Construction Contracts to be entered into with respect to the 2017 Project and the 2017
Real Property and for litigating or settling all claims thereunder. The City and the
Corporation, as their interests may appear, will be entitled to the benefit of all warranties,
guaranties and indemnities provided under the Acquisition and Construction Contracts and by
law.
SECTION 3.3. Notices and Permits. The Corporation shall cooperate with the City
in order to give or cause to be given all notices and shall comply or cause compliance with all
laws, ordinances, municipal rules and regulations and requirements of public authorities
applying to or affecting the conduct of any work relating to the 2017 Project. The City will
defend and save the Corporation, the Trustee and their respective members, directors, officers,
agents and employees harmless from all liabilities, damages or fines due to failure to comply
therewith.
SECTION 3.4. Disbursements from the Project Fund.
(a) The (i) balance of the Bond Proceeds (net of any underwriter's discount, costs
of issuance, and the deposit into the 2017 Reserve Sub-Account as provided in Section 5.1 of
the Trust Agreement) and (ii) the Initial Installment Payments, shall be deposited by the
Trustee into the Project Fund (and the accounts therein described in Section 5.1 of the Trust
Agreement). Thereafter, disbursements from the Project Fund shall be made for costs of the
2017 Project and for such other purposes contemplated by Section 5.3 of the Trust Agreement.
(b) As provided in Section 5.3(c) of the Trust Agreement, the final requisition from
the Project Fund shall contain, among other things, a certification by the Corporation and the
City stating that the 2017 Project has been substantially completed in accordance with the
applicable Acquisition and Construction Contracts and other terms and conditions of this
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Purchase and Use Agreement and the 2017 Project complies in all material respects with all
applicable governmental regulations. Upon receipt of such final requisition, the Trustee shall
apply any balance then remaining in the Project Fund in the manner provided in Section 5.4 of
the Trust Agreement. As used in this paragraph, "substantial completion" of the 2017 Project
shall mean completion such that a certificate of occupancy could be issued notwithstanding the
fact that certain minor items of work remain to be done.
SECTION 3.5. Defaults Under Acquisition and Construction Contracts. In the
event of any material default by a supplier, contractor or subcontractor under any of the
Acquisition and Construction Contracts, or in the event of a material breach of warranty with
respect to any property, fixtures, materials, workmanship or performance under any Acquisition
and Construction Contract, the City and the Corporation shall promptly proceed, and may do
so in conjunction with others, to pursue diligently such remedies as are available against the
applicable supplier, contractor or subcontractor and/or against any surety of any bond securing
the performance of the Acquisition and Construction Contracts. The Net Proceeds of any
amounts recovered by way of damages, refunds, adjustments or otherwise in connection with
the foregoing, remaining after deduction of expenses incurred in such recovery (including
without limitation, attorney's fees and costs), and after reimbursement to the City or the
Corporation of any amounts theretofore paid by either of them, and not previously reimbursed,
for correcting or remedying the default or breach of warranty which gave rise to the
proceedings against the contractor or surety, shall be paid into the Project Fund if received
before the Completion Date, or if received thereafter, shall be deposited as otherwise provided
in Section 7.2 of this Purchase and Use Agreement or otherwise applied as provided in Section
7.3 of this Purchase and Use Agreement.
SECTION 3.6. Worker's Compensation Insurance. The City and the Corporation
shall take such steps as are necessary to ensure that worker's compensation insurance is in
force with respect to any Acquisition and Construction Contracts.
SECTION 3.7. Contractor's Performance. The City and the Corporation shall take
such steps as are necessary to ensure contractor's performance.
The Net Proceeds of any amounts recovered by way of damages, refunds, adjustments
or otherwise in connection with contractor's performance remaining after deduction of
expenses incurred in such recovery (including without limitation, attorney's fees and costs), and
after reimbursement to the City and the Corporation of any amounts theretofore paid by either
of them, and not previously reimbursed, for correcting or remedying the default or breach of
warranty which gave rise to the proceedings against the contractor or surety, shall be paid into
the Project Fund if received before the Completion Date, or if received thereafter, shall be
deposited as otherwise provided in Section 7.2 of this Purchase and Use Agreement or
otherwise applied as provided in Section 7.3 of this Purchase and Use Agreement.
SECTION 3.8. General Public Liability and Property Damage Insurance. The
City and the Corporation shall take such steps as are necessary to ensure that comprehensive
general public and property damage liability insurance with respect to the 2017 Project are
provided in the same manner as would be applicable to any contracts of the City. The Net
Proceeds of any insurance policies required by this section or any amounts recovered by way
of damages, refunds, adjustments, proceeds or otherwise in connection with the foregoing,
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remaining after deduction of expenses incurred in such recovery (including without limitation,
attorney's fees and costs), and after reimbursement to the City or the Corporation of any
amounts not to exceed $100,000 theretofore paid by the City or the Corporation and not
previously reimbursed to the City or the Corporation for actions taken by the City or the
Corporation to restore damaged portions of the Facilities to a condition necessary to secure the
Facilities and prevent further loss shall be paid into the Project Fund before the Completion
Date or, if received thereafter, shall either be deposited as provided in Section 7.2 of this
Purchase and Use Agreement or otherwise applied as provided in Section 7.3 of this Purchase
and Use Agreement; provided, however, such deposit shall not exceed the amount necessary to
fulfill the obligations of the City under this Purchase and Use Agreement as determined by the
Trustee.
[END OF ARTICLE III]
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ARTICLE IV
INSTALLMENT PAYMENTS; ASSIGNMENT TO TRUSTEE
SECTION 4.1. Installment Payments.
(a) Installment Payments to Constitute a Current Expense of the City. The
Corporation and the City understand and intend that the obligation of the City to pay
Installment Payments hereunder shall constitute a current expense of the City and are
dependent upon lawful appropriations of funds being made by the Council from Available
Sources to pay Installment Payments due in each Fiscal Year hereunder, and shall not in any
way be construed to be a debt of the City in contravention of any applicable constitutional or
statutory limitations or requirements concerning the creation of indebtedness by the City, nor
shall anything contained herein constitute a pledge of the Available Sources, general tax
revenues, funds, moneys or credit of the City, apart from the TIF Obligation, which is
enforceable in accordance with its terms.
It is understood and agreed that the Initial Installment Payments shall consist of
payments in the amount of $ paid by the City in the amounts and at the times set
forth on Exhibit H hereof and that the sources of funds from which the City intends to make
the Initial Installment Payments are Available Sources, and the City has identified such sources
and approved the amounts of such funds from such sources for use in making the Initial
Installment Payments.
(b) Payment of Base Payments. Subject to an Event of Nonappropriation as
described in Section 4.7 hereof, on or before the 15th day prior to each Bond Payment Date
during the period this Purchase and Use Agreement is in effect, the City shall pay to the
Trustee as assignee of the Corporation, the Base Payments (exclusively from Available Sources
specifically budgeted and appropriated for such purpose in lawful money of the United States
of America), which payments shall be made to the Trustee as assignee of this Purchase and
Use Agreement, in the amounts set forth on Exhibit D hereto; provided, that nothing herein
shall constitute a pledge of the Available Sources, general tax revenues, funds, moneys or
credit of the City, apart from the TIF Obligation, which is enforceable in accordance with its
terms, and payments on account thereof, if and when received by the Trustee, shall satisfy the
City's obligation to make any Base Payment then due and shall constitute such Base Payment
to the extent received. Each payment of the Base Payments shall be in consideration for the
conveyance of title to an undivided ownership interest in the Facilities as and to the extent
provided in Section 2.1 hereof. As further consideration for the receipt of the Base Payments
and the Initial Installment Payments, the City shall be entitled to the use and occupancy of all
of the 2017 Real Property and the Facilities during the applicable Fiscal Year in which such
payments are or will be made.
(c) Payment of Additional Payments. The City agrees to pay, subject to the
provisions of Section 4.7 hereof, the following amounts as Additional Payments together with
such other sums as are provided for herein:
(i) The amounts provided for in Sections 4.2 and 4.4 hereof to the parties
referred to therein;
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(ii) Any amounts due upon receipt of written notice from the Trustee
pursuant to Section 5.5(e) of the Trust Agreement;
(iii) Within the period of time specified in Sections 5.5(e) and 5.7(i) of the
Trust Agreement, the amount of moneys necessary to re-establish a subaccount of the
Reserve Account established for a particular series of Bonds at the applicable Reserve
Requirement as may be required pursuant to said Sections 5.5(e) and 5.7(i) of the Trust
Agreement;
(iv) All reasonable costs and expenses incurred or to be paid by the
Corporation or the Trustee, as the case may be, under the terms of this Purchase and
Use Agreement or the Trust Agreement, including, without limitation, the amounts
specified in Section 4.4 hereof and amounts payable by the Corporation pursuant to or
contemplated by repurchase, forward delivery or other investment agreements which are
Permitted Investments under the Trust Agreement; and
(v) Amounts required to pay premiums on insurance for the 2017 Real
Property or the Facilities if such amounts are not paid directly by the City to the
applicable insurer.
The Corporation may, but shall be under no obligation to, advance moneys (i) to pay
taxes, assessments and other governmental charges with respect to the 2017 Real Property and
the Facilities, (ii) for the discharge of mechanic's and other liens relating to the 2017 Real
Property and the Facilities, (iii) to obtain and maintain insurance for the 2017 Real Property
and the Facilities and pay premiums therefor, and (iv) generally, to make payments and incur
expenses in the event that the City fails to do so as required by this Purchase and Use
Agreement or the Base Lease. As provided in Section 6.11 of the Trust Agreement, the
Trustee may take any such action. Any such advances shall continue to be due as Additional
Payments hereunder.
(d) Credits. The City shall be entitled to a credit against payments of Base
Payments in the amount of any deposits in the Bond Fund provided for in the Trust
Agreement, including the TIF Payments paid pursuant to the TIF Obligation. Such TIF
Obligation is provided to further induce the Corporation to enter into this Purchase and Use
Agreement and the City to provide the TIF Payments in return for the conveyance of title to
an undivided ownership interest in the Facilities as and to the extent provided in Section 2.1.
In addition to the credit provided in the preceding sentences, the amount payable by the City as
Base Payments will be reduced by the amount of money in the applicable subaccount of the
Facilities Purchase Account to be credited against those payments, including without limitation
accrued interest on the Series 2017B Bonds to the extent such amounts will be used to make
payments on the Series 2017B Bonds. In this connection, if applicable, when amounts
remaining in a subaccount of the Reserve Account equal or exceed the remainder of the
applicable Base Payments due, such amounts shall be transferred to the applicable subaccount
of the Facilities Purchase Account as and when needed for payment of such Base Payments.
(e) Continuation of Term by City. The City has no reason to believe, as of the date
hereof, that it will not continue making Installment Payments through the entire term of this
Purchase and Use Agreement, and reasonably believes that it will pay the Installment Payments
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due or coming due hereunder in order to continue to use the Facilities. The City covenants, to
the extent permitted by law, and subject to the City's ability to terminate this Purchase and Use
Agreement and all obligations hereunder as provided in Section 4.7 hereof, to maintain its
capacity to issue general obligation debt that does not require voter approval, in amounts and
at times, together with other Available Sources, sufficient to make Base Payments when due;
provided, however, that the City makes no representation or warranty as to its ability to issue
general obligation debt in the future.
All representations and covenants contained in this Purchase and Use Agreement are
subject to the ability of the City to terminate this Purchase and Use Agreement and all
obligations hereunder as provided in Section 4.7 hereof
SECTION 4.2. Installment Payments Not Subject to Reduction, Offset or Other
Credits.
(a) The City and the Corporation intend that this Purchase and Use Agreement shall
yield, net, the Base Payments specified in Section 4.1 hereof during the term of this Purchase
and Use Agreement, and that all costs, expenses, liabilities and obligations of any kind and
nature whatsoever including, without limitation, any ad valorem taxes or other taxes levied
against holders of real or personal property, insurance premiums, utility charges and
assessments and all operation, maintenance, repair and upkeep expenses relating to the 2017
Real Property and the Facilities and the use of the 2017 Real Property and the Facilities which
do not constitute Base Payments, or other obligations relating to the 2017 Real Property and
the Facilities which may arise or become due during the term of this Purchase and Use
Agreement and which the Corporation except for this Purchase and Use Agreement or the
terms of the Base Lease would ordinarily be required to pay as owner of the 2017 Real
Property and the Facilities (regardless of whether the City as owner would be so required to
pay) shall either be paid under the provisions of the Base Lease or be included in the
Installment Payments and paid by the City as Additional Payments under this paragraph (a).
The City acknowledges that, under the provisions of the Base Lease, it has retained
responsibility for the payment of taxes and insurance on the 2017 Real Property and the
Facilities and the property associated therewith and the obligations of the City under the Base
Lease are not subject to the limitations of Section 4.6 hereof
(b) All payments of Additional Payments referred to in Section 4.2(a) above shall be
made by the City in immediately available funds on a timely basis directly to the person or
entity to which such payments are owed; provided, however, subject to the terms hereof and
the other Security Documents, the City shall not be required to pay, discharge or remove any
tax, lien, or assessment, or any mechanic's, laborer's or materialman's lien or encumbrance, or
any other imposition or charge against the 2017 Real Property and the Facilities or any part
thereof, or comply with any law, ordinance, order, rule, regulation or requirement, as long as
the City shall, after prior written notice to the Corporation and the Trustee, at the City's
expense, contest the same or the validity thereof in good faith, by action or inaction which
shall operate to prevent (i) the collection of the tax, lien, assessment, encumbrance, imposition
or charge so contested, or the enforcement of such law, ordinance, order, rule, regulation or
requirement, as the case may be, and (ii) the sale of the Facilities or any part thereof to satisfy
the same or to enforce such compliance; provided further, that the City shall have given
reasonable security as may be demanded by the Corporation, the Trustee, or both, to insure
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such payment and prevent any sale or forfeiture of the Facilities or any part thereof by reason
of such nonpayment or noncompliance.
SECTION 4.3. Prepayment of Installment Payments. The City may prepay
Installment Payments in whole or in part as provided in, and under the conditions prescribed
under, Sections 7.3 and 9.1 hereof, or at any time that the City so determines for the purpose
of providing for the redemption of Series 2017B Bonds as provided in Section 4.1 of the Trust
Agreement or the purchase of Series 2017B Bonds as provided in Section 4.4 of the Trust
Agreement. The City shall notify the Trustee in writing of the dates on which the Series
2017B Bonds corresponding to any prepayment hereunder are to be redeemed or purchased (as
applicable) and the amount to be so redeemed or purchased on each such date, all in
accordance with the provisions of the Trust Agreement. The Trustee may request such
reasonable information and reports as may be necessary to establish the sufficiency of the
payments to be made at the time of such prepayment or purchase, respectively.
SECTION 4.4. Administrative Expenses. Subject to the provisions of Section 4.7
hereof, the City shall pay as Additional Payments (i) the periodic fees and reasonable expenses
from time to time of the Trustee and any Paying Agent incurred in administering the Trust
Agreement and the Series 2017B Bonds, and (ii) any reasonable expenses, including but not
limited to fees for legal, financial and accounting services and costs of directors and officers
insurance incurred by the Corporation or the Trustee to compel full and punctual performance
of this Purchase and Use Agreement in accordance with the terms hereof.
SECTION 4.5. Assignment of Purchase and Use Agreement, Manner of Payment.
As security for and the source of payment of the Series 2017B Bonds, pursuant to the Trust
Agreement, the Corporation has assigned to the Trustee all of its right, title and interest in and
to this Purchase and Use Agreement, except for the right of the Corporation to receive
indemnity against claims and payment of its fees and expenses pursuant to Sections 4.2, 4.4,
and 5.5 hereof. The City consents and agrees to the assignment of this Purchase and Use
Agreement as provided herein. The City covenants to fully perform, in timely fashion, all of its
covenants, agreements and obligations under this Purchase and Use Agreement, and to make
all payments required by the City under this Purchase and Use Agreement (other than payment
for indemnity and fees and expenses of the Corporation) directly to the Trustee, all without
set-off, defense or counterclaim by reason of any dispute which the City may have with the
Corporation or the Trustee.
SECTION 4.6. Limited and Special Obligation of City. Upon the occurrence of an
Event of Nonappropriation, this Purchase and Use Agreement may be terminated as of the end
of the last Fiscal Year which is not affected by such Event of Nonappropriation, and the City
shall not be obligated to pay the Installment Payments provided for in this Purchase and Use
Agreement beyond the end of such Fiscal Year (except as otherwise provided herein), and the
TIF Obligation shall terminate; provided, however, that the Trustee, acting at the direction of
Bondholders, may waive an Event of Default pursuant to Section 4.7(c)(ii) hereof If this
Purchase and Use Agreement is terminated under this Section 4.6 or as provided in Section 4.7
or Section 2.2, the City agrees to peaceful delivery of that portion of the Facilities to be
retained by the Corporation or its assigns as provided in Section 2.4 hereof
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The obligations of the City to make Installment Payments required under this Article IV
and other sections hereof, and to perform and observe the covenants and agreements contained
herein, shall be absolute and unconditional in all events, except as expressly provided under this
Purchase and Use Agreement. Notwithstanding any dispute involving the City and any of the
Corporation, any contractor, subcontractor, or supplier of materials or labor, or any other
person, the City shall make all Installment Payments when due and shall not withhold any
Installment Payments pending final resolution of such dispute, nor shall the City assert any
defense or right of set-off, recoupment, or counterclaim against its obligation to make such
payments required under this Purchase and Use Agreement.
The City's obligation to make Installment Payments during the term of this Purchase
and Use Agreement shall not be abated through accident or unforeseen circumstances. The
City agrees not to suspend, reduce, abrogate, diminish, postpone, modify, discontinue,
withhold, or abate any portion of the payments required pursuant to this Purchase and Use
Agreement by reason of any defects, malfunctions, breakdowns, or infirmities of the 2017 Real
Property or the Facilities, failure of the Corporation to complete the design, acquisition,
construction, or equipping of the 2017 Project, failure of the City to occupy or to use the
Facilities as contemplated in this Purchase and Use Agreement or otherwise, any change or
delay in the time of availability of the 2017 Real Property or the Facilities, any acts or
circumstances which may impair or preclude the use or possession of the 2017 Real Property
or the Facilities, any defect in the title, design, operation, merchantability, fitness, or condition
of the 2017 Real Property or the Facilities or in the suitability of the 2017 Real Property or the
Facilities for the City's purposes or needs, failure of consideration, the invalidity of any
provision of this Purchase and Use Agreement, any acts or circumstances that may constitute
an eviction or constructive eviction, destruction of or damage to the 2017 Real Property or the
Facilities, the taking by eminent domain of title to or the use of all or any part of the 2017
Real Property or the Facilities, commercial frustration of purpose, any change in the tax or
other laws of the United States of America or of the State or any political subdivision of either
thereof or in the rules or regulations of any governmental authority, or any failure of the
Corporation to perform and observe any agreement, whether express or implied, or any duty,
liability, or obligation arising out of or connected with this Purchase and Use Agreement.
Nothing contained in this section shall be construed to release the Corporation from the
performance of any of the agreements on its part herein contained. In the event the
Corporation should fail to perform any such agreement on its part, the City may institute such
action against the Corporation as the City may deem necessary to compel performance so long
as such action does not abrogate the City's obligations under this Purchase and Use
Agreement. The City may, however, at its own cost and expense and in its own name or in
the name of the Corporation, prosecute or defend any action or proceeding or take any other
action involving third persons which the City deems reasonably necessary in order to secure or
protect its right of possession, occupancy, and use under this Purchase and Use Agreement,
and in such event the Corporation hereby agrees to cooperate fully with the City and to take
all action necessary to effect the substitution of the City for the Corporation in any such action
or proceeding if the City shall so request. It is the intention of the parties that the payments
required by this Purchase and Use Agreement will be paid in full when due without any delay
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or diminution whatsoever, subject only to the special and limited nature of the City's obligation
to pay Installment Payments hereunder as set forth above.
The obligations of the City under this Purchase and Use Agreement shall not constitute
a pledge of the full faith, credit or taxing power of the City within the meaning of any State
constitutional or statutory provision.
SECTION 4.7. Event of Nonappropriation. Upon the occurrence of an Event of
Nonappropriation, the following provisions shall apply:
(a) If written notice is given by a City Representative to the Corporation and the
Trustee that it will not appropriate funds from any Available Source in the next succeeding
Fiscal Year for payment of Installment Payments or if an Event of Nonappropriation is
otherwise deemed to have occurred, the Trustee shall as soon as practicable give written notice
to the City and the Corporation stating that an Event of Nonappropriation has occurred; but
any failure of the Trustee to give such written notice shall not prevent the Trustee from
declaring an Event of Nonappropriation or from taking any remedial action which would
otherwise be available to the Trustee.
(b) Subject to Article VIII hereof and the provisions of subsections (c) and (d) of
this Section 4.7, this Purchase and Use Agreement will be terminated pursuant to Section 2.2.
(c) Subject to Article VIII hereof and the provisions of subsection (d) of this
Section 4.7, the Trustee shall waive any Event of Nonappropriation if (i) such Event of
Nonappropriation is cured by the City before the Waiver Period has expired and in the
Trustee's judgment such waiver is in the best interest of the Holders of the Bonds, or (ii) the
Trustee, acting upon the direction of the Holders of the majority in aggregate principal amount
of the Outstanding Bonds, elects to waive such Event of Nonappropriation for any reason,
including in order to continue to receive TIF Payments.
(d) Subject to Article VIII hereof and notwithstanding the provisions of subsection
(c) of this Section 4.7, the Trustee shall waive any Event of Nonappropriation (but only an
Event of Nonappropriation which occurs pursuant to clause (i) of the definition thereof) which
is cured by (i) the City's specifically budgeting and appropriating, prior to expiration of the
Waiver Period, moneys sufficient to pay Installment Payments coming due hereunder for such
Fiscal Year that may be lawfully used to make such payment, or (ii) the issuance of bonds,
notes or other obligations prior to the expiration of the Waiver Period for the purpose of, and
providing sufficient funds for, refunding, refinancing and discharging all outstanding Series
2017B Bonds.
If an Event of Nonappropriation occurs and is not waived, the City shall not be deemed
to be in default under this Purchase and Use Agreement and shall not be obligated to make
payment of any future Installment Payments due hereunder or any other payments provided for
herein which accrue after the beginning of the Fiscal Year with respect to which there has
occurred an Event of Nonappropriation; provided, the City shall continue to be liable for
Installment Payments pursuant to Section 2.3 hereof.
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The City, in all events, shall cooperate with the Corporation and the Trustee in making
the partition required under Section 2.4 hereof and shall vacate and deliver over to the Trustee
the Corporation Facilities no later than 60 days after the partition report becomes final in
accordance with Section 2.4 hereof
The Trustee shall, upon the occurrence of an Event of Nonappropriation, be entitled to
all moneys then on hand and being held in all funds created under the Trust Agreement for the
benefit of the Holders of the Series 2017B Bonds. After the expiration of the Fiscal Year
during which an Event of Nonappropriation occurs, if such occurs by notice, or the February 2
following (i) the January 15 on which the City fails to specifically budget and appropriate
sufficient moneys to pay, the Installment Payments hereunder, or (ii) the December 1 on which
the City fails to enact an ordinance authorizing the issuance of general obligation bonds for the
purpose of paying, the Installment Payments hereunder, the Trustee may or shall, as the case
may be, proceed to exercise its remedies, liquidate its interest in this Purchase and Use
Agreement or lease the Corporation Facilities (after the partition and delivery thereof pursuant
to Section 2.4 hereof) as provided in Section 8.2 hereof. All property, funds and rights
acquired by the Trustee by reason of an Event of Nonappropriation as provided herein, less
any moneys due and owing to the Trustee for services performed as Trustee, shall be held by
the Trustee for the benefit of the Holders of the Bonds as set forth in the Trust Agreement.
Notwithstanding anything in this Purchase and Use Agreement to the contrary, in the
event that the Trustee shall receive a payment for the transfer of its interest in this Purchase
and Use Agreement, or total rental payments for leasing that are, after the payment of the
Corporation's expenses in connection therewith, including attorneys' and other fees and
expenses of the Trustee, and all other amounts which are payable hereunder, in excess of the
principal amount of the Outstanding Series 2017B Bonds at the time of the Event of
Nonappropriation and the interest due and to become due thereon (with amounts so received
to be credited first to such interest and then to principal), then such excess shall be paid to the
City by the Trustee, its assigns or its lessee.
[END OF ARTICLE IV]
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ARTICLE V
COVENANTS OF THE CITY
SECTION 5.1. Maintenance and Operation of 2017 Real Property and Facilities;
Transfers.
(a) Subject to Sections 4.6 and 4.7 herein, the City covenants and represents that
during the term of this Purchase and Use Agreement, it shall, at its own cost or expense, use
and maintain the 2017 Real Property and the Facilities in a sound and economical manner, in
compliance with all present and future laws and governmental regulations applicable thereto,
and maintain, preserve and keep the 2017 Real Property and the Facilities in good repair,
working order and condition, and that it shall from time to time make or cause to be made all
necessary and proper repairs and renewals so that at all times the operation of the Facilities
may be properly and advantageously conducted. This covenant shall not prevent the City from
discontinuing operation of the Facilities at any time.
(b) Except as otherwise provided in this Section 5.1 and Section 2.1 hereof, prior to
payment of the Series 2017B Bonds in full, the City shall not sell, transfer, lease, sublease or
otherwise dispose of all or any portion of the 2017 Real Property and the Facilities, or its
interests under this Purchase and Use Agreement, except to another political subdivision of the
State, which assumes in writing all obligations of the City under this Purchase and Use
Agreement and shall enter into no such transaction without the written consent of the Trustee.
SECTION 5.2. Liens on 2017 Real Property and the Facilities. The City shall not
create, incur or suffer to exist any lien, charge or encumbrance on the 2017 Real Property or
the Facilities or its rights under this Purchase and Use Agreement other than any Permitted
Encumbrance.
SECTION 5.3. Representations and Covenants Regarding Tax Exempt Status of
Series 2017B Bonds.
(a) Neither the Corporation nor the City shall take any action (including but not
limited to any use of the 2017 Real Property and the Facilities) or permit any action to be
taken on its behalf, or cause or permit any circumstance within its control to arise or continue,
if such action or circumstance, or its expectation on the date of this Purchase and Use
Agreement would cause the interest paid on the Series 2017B Bonds to be includable in the
gross income of the recipients thereof for federal income tax purposes.
(b) The City covenants to the Corporation, the Trustee and the Holders of the
Series 2017B Bonds that, notwithstanding any other provision of this Purchase and Use
Agreement or any other instrument, it will neither make nor cause to be made any investment
or other use of the proceeds of the Series 2017B Bonds or amounts on deposit in any of the
funds or accounts held under the Trust Agreement or under any other document related to the
Series 2017B Bonds which would cause the Series 2017B Bonds to be "arbitrage bonds" under
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Section 148 of the Code and the regulations thereunder, and that it will comply with the
requirements of such Section and regulations throughout the term of the Series 2017B Bonds.
(c) The City shall take all actions necessary on its part to enable compliance with
the rebate provisions of Section 148(f) of the Code in order to preserve the federal income tax
status of payments of interest with respect to any Series 2017B Bonds not issued as a Taxable
Series. The City shall ensure that the Corporation retains a consultant experienced in the
calculation and determination of rebate payments and liability under Section 148(f) of the Code
to provide the reports required under any Federal Tax Certificate.
(d) The City will accept title to the Facilities upon the discharge of the Series
2017B Bonds.
(e) The representations and covenants of this Section 5.3 shall be inapplicable to
any Taxable Series.
SECTION 5.4. Reports and Opinions; Inspections.
(a) The City shall deliver to the Trustee and the Corporation, within 90 days after
the end of each Fiscal Year a certificate stating that no Event of Default under this Purchase
and Use Agreement has occurred and is continuing and that the 2017 Real Property and the
Facilities are being used in accordance with the terms of this Purchase and Use Agreement.
(b) The City shall permit the Corporation and the Trustee to examine, visit and
inspect, at any reasonable time, the 2017 Real Property and the Facilities, and any accounts,
books and records, including its receipts, disbursements, contracts, investments and any other
matters relating thereto and to its financial standing, and to supply such reports and information
as the Trustee may reasonably require.
SECTION 5.5. Immunity of Corporation and Trustee. In the exercise of the
powers of the Corporation and the Trustee and their members, directors, officers, employees
and agents under the Trust Agreement or this Purchase and Use Agreement including (without
limiting the foregoing) the application of moneys and the investment of funds, neither the
Corporation nor the Trustee shall be accountable to the City for any action taken or omitted
with respect to the Facilities or this Purchase and Use Agreement by either of them or their
members, directors, officers, employees and agents in good faith and believed by it or them to
be authorized or within the discretion or rights or powers conferred under this Purchase and
Use Agreement. The Corporation and the Trustee and their members, officers, employees and
agents shall be protected in its or their acting upon any paper or documents believed by it or
them to be genuine, and it or they may conclusively rely upon the advice of counsel and may
(but need not) require further evidence of any fact or matter before taking any action. No
recourse shall be had by the City for any claims based on the Trust Agreement or this Purchase
and Use Agreement against any member, director, officer, employee or agent of the
Corporation or the Trustee alleging personal liability on the part of such person.
SECTION 5.6. Compliance with Laws. With respect to the 2017 Real Property and
the Facilities and any additions, alterations, or improvements thereto, the City will at all times
comply with all applicable requirements of federal and state laws and with all applicable lawful
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requirements of any agency, board, or commission created under the laws of the State or of
any other duly constituted public authority; provided, however, that the City shall be deemed in
compliance with this Section 5.6 so long as it is contesting in good faith any such requirement
by appropriate legal proceedings.
SECTION 5.7. Insurance and Condemnation Proceeds. The City shall not make
any disposition nor direct the disposition of insurance or condemnation payments with respect
to the 2017 Real Property or the Facilities in excess of $250,000 without the prior written
consent of the Trustee except as may be required by the terms hereof or of the other Security
Documents or of any Permitted Encumbrances existing on the date hereof
SECTION 5.8. Filing of Budget with Trustee. During the term of this Purchase and
Use Agreement, the City shall file with the Trustee, within 15 days after the beginning of each
Fiscal Year, a copy of the annual budget of the City for that Fiscal Year.
SECTION 5.9. Alterations of the 2017 Real Property and the Facilities;
Removals. The City, in its discretion and at its expense, may remodel or make such additions,
modifications and improvements to the Facilities as it may deem to be desirable; provided, that
no such additions, modifications or improvements shall adversely affect the structural integrity
or strength of, or materially interfere with the use and operations of, the 2017 Real Property
and the Facilities.
In this connection, the City may remove any items of personal property constituting a
part of the Facilities financed by a source of funds other than the proceeds of the Series 2017B
Bonds and the Initial Installment Payments, provided that such removal of the personal
property shall not materially diminish the value of the Facilities or materially impair the
operation thereof
In the case of any removal as provided above or any removal of City property not
constituting Facilities, the City shall repair any damage resulting from such removal.
SECTION 5.10. Continuing Disclosure. The City covenants to provide the
information required by Rule 15c2-12 promulgated under the Securities Exchange Act of 1934,
as amended ("15c2-12"), as an Obligated Person (as defined in 15c2-12) in compliance with
the provisions of the Continuing Disclosure Undertaking attached hereto as Exhibit F (the
"Disclosure Undertaking"), if applicable. If the City is obligated to comply with the
Disclosure Undertaking pursuant to 15c2-12, then in the event of a failure by the City or any
dissemination agent appointed thereby to comply with any provisions of the Disclosure
Undertaking, the rights of the Holders of the Series 2017B Bonds to enforce the provisions of
the Disclosure Undertaking shall be limited solely to a right, by action in mandamus or specific
performance, to compel performance of the parties' obligations under the Disclosure
Undertaking.
Any failure by a party to perform in accordance with the Disclosure Undertaking shall
not constitute a default on the Series 2017B Bonds or under any other document relating to
the Series 2017B Bonds, and all rights and remedies shall be limited to those expressly stated
in the Disclosure Undertaking.
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[END OF ARTICLE V]
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ARTICLE VI
INSURANCE
SECTION 6.1. Types of Insurance and Coverage Requirements.
(a) The City shall, commencing with the date that any items of personal property
comprising the Facilities are delivered, or in the event that progress payments are to be made
to the manufacturer thereof prior to the date of such delivery, commencing with the date of
this Purchase and Use Agreement, and upon completion of any construction, reconstruction,
renovation or remodeling incidental to the completion and installation of the Facilities, on all
such improvements to the 2017 Real Property and the Facilities, maintain all-risk fire, extended
coverage, vandalism, and malicious mischief insurance on the 2017 Real Property and the
Facilities, with such deductible provisions as are acceptable to the Corporation. Such insurance
shall name the Corporation and the Trustee as additional insureds or loss payees, as their
interests may appear, be maintained for the term of this Purchase and Use Agreement and each
policy shall be in an amount equal to the replacement value of the Facilities; provided that, on
the third anniversary of the execution of this Purchase and Use Agreement and every three
years thereafter, the City shall cause the preparation and pay for the expense of a certification
of the maximum full insurable value of the Facilities by an independent insurance agent or a
person or company knowledgeable in such matters and shall deliver the same to the Trustee.
(b) The City shall, to the extent required by law or good business practice, maintain
for the term of this Purchase and Use Agreement, general liability insurance, worker's
compensation insurance, disability insurance, and any other form of insurance, covering loss
resulting from injury, sickness, disability or death of employees in amounts at least equal to
those carried by institutions of similar size and nature.
(c) The City shall maintain, for the term of this Purchase and Use Agreement,
general liability insurance against loss or losses from liabilities imposed by law or assumed in
any written contract and arising from the death or bodily injury of persons or damage to the
property of others caused by accident or occurrence (including contractual liability
endorsement), with limits of not less than $800,000 per occurrence and not less than
$1,000,000 in the aggregate for claims made in any one year on account of injury of any one
person, and $250,000 for property damage per occurrence with an aggregate property damage
limitation of not less than $500,000, excluding liability imposed upon the City by any applicable
worker's compensation law. Such insurance shall name the Corporation and the Trustee as
additional insureds or loss payees, as their interests may appear, to the extent practicable.
(d) All policies of insurance required hereunder shall be written by the South
Carolina Municipal Association's SC Insurance and Risk Financing Fund, the South Carolina
Insurance Reserve Fund, or companies rated not lower than "A" by A. M. Best Company or in
one of the two highest rating categories by S&P or Moody's, in each case qualified to do
business in the State and each policy shall provide at least 30 days prior written notice to the
Corporation and the Trustee before such policy is canceled. The City may provide any part or
all of the insurance required hereby under the terms of a policy insuring other facilities or risks
or any "blanket" policy. The City covenants that it will take all action, or cause the same to
be taken, which may be necessary to enable recovery under the aforesaid insurance policies.
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(e) All policies of insurance required hereby shall be open to inspection by the
Corporation, the Trustee at all reasonable times. Certificates of insurance describing such
policies shall be furnished by the City to the Corporation when such policies are required to be
obtained by this Section 6.1 and at least 10 days prior to the expiration of each of such
policies. The City shall certify that it is in compliance with the provisions hereof at or prior to
the execution and delivery of this Purchase and Use Agreement. If any change shall be made
in such insurance as to either amount or type of coverage, a description and notice of such
change shall be furnished immediately to the Corporation and the Trustee by the City or it shall
cause the same to be so furnished. In the event that the City fails to maintain any insurance as
provided in this Section, the Trustee may, upon such notice to the City as is reasonable under
the circumstances, procure and maintain such insurance at the expense of the City
(reimbursable as provided hereinbefore), but the Trustee shall not be under an obligation to do
so.
SECTION 6.2. Self-Insurance ApprovaL If, at the time of execution of this
Purchase and Use Agreement, the City self-insures or at any time hereafter desires to self-
insure to the extent permitted by law, the entry into such self-insurance program shall require
the written approval of the Corporation.
SECTION 6.3. Title Insurance. The City shall obtain at the time of execution
of this Purchase and Use Agreement, and cause to be maintained until this Purchase and Use
Agreement terminates in accordance with Section 2.2 hereof, an American Land Title
Association mortgagee's title insurance policy on the 2017 Real Property insuring the City's
fee simple interest in the 2017 Real Property, subject only to Permitted Encumbrances, in an
amount equal to the aggregate Installment Payments designated as principal, naming the
Corporation and its successors and assigns as the named insured.
[END OF ARTICLE VI]
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ARTICLE VII
DAMAGE, DESTRUCTION AND
CONDEMNATION; USE OF NET PROCEEDS
SECTION 7.1. Damage, Destruction and Condemnation. If, during the term of
this Purchase and Use Agreement, (i) the Facilities or any portion thereof shall be destroyed (in
whole or in part), or be damaged by fire or other casualty, or (ii) title to, or the temporary or
permanent use of, the 2017 Real Property, the Facilities or any portion thereof or the estate of
the City or the Corporation in the 2017 Real Property, the Facilities or any portion thereof
shall be taken under the exercise of the power of eminent domain by any governmental body or
by any person, firm or corporation acting under governmental authority, or (iii) a material
defect in construction or installation of the Facilities or any portion thereof shall become
apparent, or (iv) title to or the use of all or any portion of the 2017 Real Property or the
Facilities shall be lost by reason of a defect in title thereto, then the City shall be obligated,
subject to the option provided in Section 7.3 hereof and the provisions of Sections 4.6 and 4.7
hereof, to continue to pay the amounts specified as Installment Payments under this Purchase
and Use Agreement.
SECTION 7.2. Obligation to Repair or Replace the Facilities. Subject to the
provisions of Section 7.3 hereof, the City, the Corporation and the Trustee shall cause the Net
Proceeds of any insurance policies, performance bonds or condemnation awards made available
by reason of any occurrence described in Section 7.1 hereof, to be deposited as provided in
Sections 3.5, 3.7 or 3.8, as the case may be, hereof prior to the Completion Date or, after the
Completion Date, in a separate trust fund designated as the "Net Proceeds Fund" which the
Trustee is hereby directed to establish in such event. Except as set forth in Section 7.3 hereof,
all Net Proceeds so deposited shall be applied to the prompt repair, restoration, modification,
improvement or replacement of the 2017 Real Property and the Facilities by the City upon
receipt of requisitions by the Trustee signed by an authorized official of the City stating with
respect to each payment to be made: (i) the requisition number; (ii) the name and address of
the person, firm or corporation to whom payment is due; (iii) the amount to be paid; and (iv)
that each obligation mentioned therein has been properly incurred, is properly payable from the
Net Proceeds held in the separate trust fund and has not been the basis of any previous
withdrawal and specifying in reasonable detail the nature of the obligation, accompanied by a
bill or a statement of account for such obligation. In carrying out any of the provisions of this
Section 7.2, the City shall have all power and authority granted under Article III of this
Purchase and Use Agreement; and the Trustee shall cooperate with the City in the
administration of such fund and shall not unreasonably withhold its approval of requisitions
required by this Section 7.2. The balance of any such Net Proceeds remaining after such
repair, restoration, modification, improvement or replacement has been completed shall be
applied to any lawful and authorized purpose of the City as directed in writing by the City.
Any repair, restoration, modification, improvement or replacement paid for in whole or in part
out of such Net Proceeds shall be included as part of the Facilities under this Purchase and Use
Agreement and the Trust Agreement.
If the Net Proceeds (plus any amounts withheld from such Net Proceeds by reason of
any deductible clause) shall be insufficient to pay in full the cost of any repair, restoration,
modification, improvement or replacement of the 2017 Real Property or the Facilities, the City
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shall be responsible, subject to the option contained in Section 7.3 hereof, for the completion
of the work and the payment of any cost in excess of the amount of the Net Proceeds. In this
connection, the City agrees that, if by reason of any such insufficiency of the Net Proceeds, the
City shall make any payments pursuant to the provisions of this paragraph, the City shall not
be entitled to any reimbursement therefor from the Trustee or the Holders of the Series 2017B
Bonds, nor shall the City be entitled to any diminution of any Installment Payments payable
under this Purchase and Use Agreement.
SECTION 7.3. Discharge of Obligation to Repair or Replace the 2017 Real
Property and the Facilities. If, as a result of the occurrence of an event described in Section
7.1 hereof, (a) any part of the Facilities is totally destroyed or is damaged to such an extent
that the rebuilding or repairing of such part of the Facilities would be impracticable, (b) there is
discovered a material defect in the construction of the Facilities or any portion thereof that
renders the Facilities or such portion unusable by the City for its intended purposes, (c) all or
substantially all of the 2017 Real Property or the Facilities is taken by eminent domain or (d)
the City is deprived of the use of any part of the 2017 Real Property or the Facilities by reason
of a defect in title thereto, the City may elect to apply the Net Proceeds of applicable insurance
policies, performance bonds or condemnation awards as a prepayment of Installment Payments
and the discharge of its obligations with respect to Sections 7.1 and 7.2 hereof. Such an
election may be made by written notice to the Corporation and the Trustee within 90 days of
the occurrence of an event described in (a) through (d) above. Upon any such prepayment, the
amount thereof shall be applied to redeem Series 2017B Bonds at the earliest practicable date
pursuant to Section 4.1(b)(1) of the Trust Agreement, the Purchase Price shall be recalculated
to take account of such prepayment, title to the affected part of the Facilities (if applicable)
shall be deemed transferred to the City and in the event of any future partition under Section
2.4 hereof, such affected part of the Facilities (if applicable) shall be automatically assigned to
the City. If at any time the amount to be applied as a prepayment hereunder shall exceed the
redemption price of the Series 2017B Bonds, the Series 2017B Bonds shall be redeemed, title
to all the Facilities shall be transferred to the City and any amounts not required for the
redemption of the Series 2017B Bonds and payment of other expenses and amounts under the
Trust Agreement shall be paid to the City.
SECTION 7.4. Cooperation of the Parties. The Corporation, the City and the
Trustee shall cooperate fully with each other in filing any proof of loss with respect to any
insurance policy or performance bond covering the events described in Section 7.1 of this
Purchase and Use Agreement, in making the Net Proceeds available in accordance with Section
7.2 or 7.3 hereof and in the prosecution or defense of any prospective or pending
condemnation proceeding with respect to the 2017 Real Property, the Facilities or any portion
thereof and in the enforcement of all warranties relating to the 2017 Real Property or the
Facilities. The Corporation hereby designates the City as its agent for the purpose of making
collections under such policies, such amounts to be held in trust and applied in accordance
herewith. In no event shall the Corporation voluntarily settle, or consent to the settlement of,
any proceeding arising out of any insurance claim, performance or payment bond claim,
prospective or pending condemnation proceeding with respect to the 2017 Real Property, the
Facilities or any portion thereof without the written consent of the City and the Trustee.
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[END OF ARTICLE VII]
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ARTICLE VIII
DEFAULTS AND REMEDIES
SECTION 8.1. Events of Default. Each of the following events is hereby defined as,
and declared to be and shall constitute, an "Event of Default":
(a) failure by the City to make any payment required to be made pursuant to
Section 4.1(b) hereof within five days after the same is due (provided, however, that an Event
of Nonappropriation shall not result in an Event of Default under this provision); or
(b) failure by the City to timely comply with the provisions of Section 2.4 hereof
relating to partition and vacating of Facilities at the times required; or
(c) failure by the City to make any payment required to be made pursuant to
Section 4.1(c), 4.2 or 4.4 hereof or under the provisions of the Base Lease within ten days
after the same is due; or
(d) failure by the City to observe and perform any other covenant, condition or
agreement on its part to be observed or performed under this Purchase and Use Agreement for
a period of 30 days after written notice specifying such failure and requesting that it be
remedied is given to the City by the Trustee; or
(e) if any of the representations and warranties of the City hereunder shall prove to
be false or misleading in any material respect as of the date such representations and warranties
were made; or
(f) the failure by the City promptly to stay or lift any execution, garnishment or
attachment of such consequence as will, in the reasonable judgment of the Trustee, materially
impair its ability to carry out its obligations under this Purchase and Use Agreement (provided
that the City shall not be in default so long as it is diligently prosecuting a bona fide appeal
from any such execution, garnishment or attachment); or
(g) if the City shall (i) apply for or consent to the appointment of a receiver,
trustee, or the like of the City or of property of the City, or (ii) admit in writing the inability of
the City to pay its debts generally as they become due, or (iii) make a general assignment for
the benefit of creditors, or (iv) be adjudicated a bankrupt or insolvent, or (v) commence a
voluntary case under the United States Bankruptcy Code or file a voluntary petition seeking
reorganization, an arrangement with creditors or an order for relief or seeking to take
advantage of any insolvency law or (vi) fail to controvert in a timely or appropriate manner, or
acquiesce in writing to, any petition filed against it in an involuntary case under the United
States Bankruptcy Code.
The foregoing provisions of this Section 8.1 are subject to the following provision: If,
by reason of Force Majeure, the City shall be unable in whole or in part to carry out any
agreement on its part herein contained, other than the obligations on the part of the City
contained in Articles IV and VI of this Purchase and Use Agreement, the City shall not be
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deemed in default during the continuance of such inability. The City agrees, however, to
remedy, as promptly as legally and reasonably possible, the cause or causes preventing the City
from carrying out its agreement, provided that the settlement of strikes, lockouts and other
industrial disturbances shall be entirely within the discretion of the City.
The Holders of the majority in aggregate principal amount of the Outstanding Bonds
may direct the Trustee to waive an Event of Default in order to continue to receive TIF
Payments.
SECTION 8.2. Remedies. Whenever any Event of Default referred to in Section 8.1
of this Purchase and Use Agreement shall have happened and be continuing, the Corporation
(with written notice promptly given to the Trustee) and the Trustee may terminate the term of
this Purchase and Use Agreement and shall give notice to the City to vacate the Corporation
Facilities no later than 60 days after the partition report becomes fmal in accordance with
Section 2.4 hereof. Whenever an Event of Nonappropriation shall be deemed to occur, the
term of this Purchase and Use Agreement shall terminate pursuant to Section 2.2(a) and the
City shall vacate and deliver over to the Trustee possession of the Corporation Facilities by the
time specified in the third paragraph of Section 4.7(d) hereof.
Subject to the terms of the Base Lease, the Trustee may also (i) take whatever action
at law or in equity which may appear necessary or desirable to enforce its rights in and to the
Facilities under this Purchase and Use Agreement or any of the other Security Documents,
subject, however, to the limitations set forth herein, and (ii) exercise all the rights and remedies
of a secured party under the South Carolina Uniform Commercial Code with respect to any
security interests subject thereto.
In addition, the Trustee may, or at the direction of the Holders of the majority in
aggregate principal amount of the Outstanding Bonds shall, without any further demand or
notice, and subject to the terms of the Base Lease, take one or both of the following additional
remedial steps:
(i) The Trustee may liquidate its interest in this Purchase and Use
Agreement or sell or assign its interest in the Base Lease; or
(ii) The Trustee may relet or assign its rights to the Corporation Facilities
under such terms and conditions as it deems appropriate for the benefit of the Holders of
the Bonds.
Notwithstanding anything in this Purchase and Use Agreement to the contrary, (1) in
the event of a termination of the City's interest in any portion of the Facilities and subsequent
thereto the Trustee shall receive a payment for the transfer of its interest in this Purchase and
Use Agreement or total rental payments for leasing that are, after the payment of the
Corporation's expenses in connection therewith, including fees and expenses of the Trustee, in
excess of the principal amount of the Outstanding Bonds at the time of the Event of Default or
Event of Nonappropriation and the interest due and to become due thereon (with amounts so
received to be credited first to such interest and then to principal), then such excess shall be
paid to the City by the Trustee, its assigns or its lessee and (2) the Trustee shall not be
permitted to sell, lease or otherwise dispose of any interest in the Corporation Facilities
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following an Event of Nonappropriation until the Waiver Period has expired, unless such action
is expressly subject to the rights of the Corporation, Trustee or the City, as the case may be,
to waive such Event of Nonappropriation.
SECTION 8.3. Limitations on Remedies. A judgment requiring a payment of money
may be entered against the City by reason of an Event of Default or Event of
Nonappropriation only as to the City's liabilities described in Section 10.1 of this Purchase and
Use Agreement.
SECTION 8.4. Cumulative Rights. No remedy conferred upon or reserved to the
Corporation or the Trustee by this Purchase and Use Agreement is intended to be exclusive of
any other available remedy or remedies, but each and every such remedy shall be cumulative
and shall be in addition to every other remedy given under this Purchase and Use Agreement
or now or hereafter existing at law or in equity or by statute. No waiver by the Corporation
or the Trustee of any breach by the City of any of its obligations, agreements or covenants
hereunder shall be deemed a waiver of any subsequent breach, or a waiver of any other
obligation, agreement or covenant, and no delay or failure by the Corporation or the Trustee to
exercise any right or power shall impair any such right or power or shall be construed to be a
waiver thereof, but any such right and power may be exercised by the Corporation or the
Trustee from time to time and as often as may be deemed expedient.
SECTION 8.5. Discontinuance of Proceedings. In case the Corporation or the
Trustee shall have proceeded to enforce any right under this Purchase and Use Agreement and
such proceedings shall have been discontinued or abandoned for any reason or shall have been
determined adversely to the Corporation or the Trustee, then and in every such case the City,
the Corporation and the Trustee shall be restored respectively to their several positions and
rights hereunder and all rights, remedies and powers of the City, the Corporation and the
Trustee shall continue as though no such proceeding had been taken.
[END OF ARTICLE VIII]
35
0
ARTICLE IX
CONVEYANCE OF THE FACILITIES
SECTION 9.1. Optional Purchase of the Facilities. (a) Purchase in Full. The City
is hereby granted the option to terminate this Purchase and Use Agreement and to purchase the
Corporation's interest in the Facilities not theretofore acquired by the City at any time upon
payment by the City of the then applicable Purchase Option Price; provided, however, that no
such termination shall relieve the City from its obligation to pay administrative expenses as
provided in Section 4.4 hereof until the Series 2017B Bonds have been fully discharged and the
Trust Agreement terminated. The City shall notify the Corporation and the Trustee of its
intention to exercise this option, on or before the 45th day preceding the date of such purchase
or such later date as may be acceptable to the Trustee, but in no event later than the 30th day
preceding the date of such purchase, and shall provide funds for such prepayment or such other
assurance thereof as may be acceptable to the Trustee. Upon the payment of the Purchase
Option Price, the Corporation shall transfer and convey all its remaining interest in the
Facilities to the City in the manner provided in Section 9.2 hereof.
(b) Partial Prepayment of Installment Payments and Purchase. From and after
1, 20_, the City is also granted the option to prepay Installment Payments on the
due date of any Base Payments hereunder for the purpose of having such prepayments credited
towards the purchase price of the Facilities. The City shall notify the Corporation and the
Trustee of its intention to exercise this option, on or before the 45th day preceding the date of
such prepayment or such later date as may be acceptable to the Trustee, but in no event later
than the 30th day preceding the date of such prepayment, and shall provide funds for such
prepayment or such other assurance thereof as may be acceptable to the Trustee.
SECTION 9.2. Manner of Conveyance. (a) Complete Conveyance. At the closing
of any purchase or other conveyance of all of the Facilities pursuant to Section 9.1 of this
Purchase and Use Agreement, or at the conclusion of the term hereof by the payment of all
amounts due hereunder, the Corporation and the Trustee shall execute and deliver to the City
all necessary documents assigning, transferring and conveying all interest to the Facilities by an
instrument terminating the Base Lease and this Purchase and Use Agreement and quit claim or
special warranty deed, as the case may be, in the form as mutually agreed to by the Trustee,
the Corporation and the City, subject to the following:
(i) Permitted Encumbrances, other than this Purchase and Use Agreement
and the Trust Agreement;
(ii) all liens, encumbrances and restrictions created or suffered to exist by the
Corporation and the Trustee as required or permitted by this Purchase and Use
Agreement or the Trust Agreement or arising as a result of any action taken or
permitted to be taken by the Corporation or the Trustee as required or permitted by
this Purchase and Use Agreement or the Trust Agreement; and
(iii) any lien or encumbrance created by action or inaction of or consented to
by the City.
36
(b) Partial Conveyance Resulting from Partition. Upon any conveyance under
Section 2.4 hereof, the Corporation and the Trustee shall execute and deliver to the City all
necessary documents assigning, transferring and conveying all interest in the City Facilities by
an instrument terminating the Base Lease and this Purchase and Use Agreement with respect to
the City Facilities and quit claim or special warranty deed, as the case may be, in the form as
mutually agreed to by the Trustee, the Corporation and the City, subject to the following:
(i) Permitted Encumbrances, other than this Purchase and Use Agreement
and the Trust Agreement;
(ii) all liens, encumbrances and restrictions created or suffered to exist by the
Corporation and the Trustee as required or permitted by this Purchase and Use
Agreement or the Trust Agreement or arising as a result of any action taken or
permitted to be taken by the Corporation or the Trustee as required or permitted by
this Purchase and Use Agreement or the Trust Agreement; and
(iii) any lien or encumbrance created by action or inaction of or consented to
by the City.
Neither the Trustee nor the Corporation shall be responsible for the recordation of any deed or
other instrument for such purposes.
(c) Partial Conveyance Resulting from Prepayment. Any conveyance resulting from
a partial prepayment under Section 9.1(b) hereof shall be made in the manner as all other
conveyances with respect to payments on each Bond Payment Date.
[END OF ARTICLE IX]
37
ARTICLE X
MISCELLANEOUS
SECTION 10.1. Limitation of Liability of the Corporation and the City.
Notwithstanding any other provision of this Purchase and Use Agreement, in the event of any
default, including an Event of Default as to the City, by either the Corporation or the City
hereunder or under the Trust Agreement, any liability of the Corporation or the City shall be
enforceable only out of its respective interest in the Base Lease and under this Purchase and
Use Agreement and the moneys to be paid by the City through the later of the end of the
Fiscal Year as to which Base Payments have been appropriated for or the conclusion of any
holdover term as provided in Section 2.3 hereof, and there shall be no recourse for any claim
based on this Purchase and Use Agreement, the Trust Agreement or the Bonds, against any
other property of the Corporation or the City or against any officer or employee, past, present
or future, of the Corporation or the City or any successor body as such, either directly or
through the Corporation or the City or any such successor body, under any constitutional
provision, statute or rule of law or by the enforcement of any assessment or penalty or
otherwise, and the liability of the Corporation and the City shall be limited to its interests in the
Base Lease and interests under this Purchase and Use Agreement and the moneys to be paid by
the City hereunder through the later of the end of the Fiscal Year as to which Base Payments
have been appropriated therefor or the conclusion of any holdover term as provided in Section
2.3 hereof, and the lien of any judgment shall be restricted thereto, and there shall be no other
recourse by the City against the Corporation or the Corporation against the City or any of the
property now or hereafter owned by it or either of them.
SECTION 10.2. Surrender of Possession Upon Termination. Upon termination
hereof or upon termination of all rights of the City hereunder, either by reason of an Event of
Default or an Event of Nonappropriation, the City covenants that it will deliver or cause to be
delivered peaceable possession of such of the Facilities as are determined under Section 2.4
hereof to be Corporation Facilities together with the related portion of the 2017 Real Property
without delay, upon demand made by the Corporation or the Trustee, in good repair and
operating condition, excepting reasonable wear and tear and damage, injury or destruction by
fire or other casualty which, under the terms hereof, shall not have been repaired, reconstructed
or replaced.
SECTION 10.3. Notices. Notices hereunder shall be given to the addresses shown
below or to such other address as shall be filed in writing with the parties hereto as follows:
If to the City:
City of North Augusta, South Carolina
Attn: City Administrator
100 Georgia Avenue
City of North Augusta, SC 29841
38
If to the Corporation:
North Augusta Public Facilities Corporation
100 Georgia Avenue
City of North Augusta, SC 29841
(with copy to the City as described above)
If to the Trustee:
U.S. Bank National Association
1441 Main Street, Suite 775
Columbia, SC 29201
Attention: Corporate Trust Services
Duplicate copies of each notice, request, complaint, demand or other instrument or
document given hereunder by the Corporation, the City or the Trustee to one or more of the
others also shall be given to the others. The foregoing parties may designate, by notice given
hereunder, any further or different addresses to which any subsequent notice, request,
complaint, demand or other instrument or document shall be sent.
SECTION 10.4. Assignments. Except as expressly provided in the Trust Agreement
and the provisions of Section 4.5 hereof, this Purchase and Use Agreement may not be
assigned by either of the parties hereto without the written consent of the other party hereto
and the written consent of the Trustee. Except as provided in Section 8.2 hereof and the
provisions of Articles VI and VII of the Trust Agreement, the Trustee shall not be permitted to
further assign its interest in this Purchase and Use Agreement. Any assignment in
contravention hereof shall be void.
SECTION 10.5. Severability. In case any provision of this Purchase and Use
Agreement shall for any reason be held invalid, illegal or unenforceable in any respect, by any
court or administrative body of competent jurisdiction, such holding shall not invalidate or
render unenforceable any other provision hereof and this Purchase and Use Agreement shall be
construed as if such provision had never been contained herein.
SECTION 10.6. Amendments. The City and the Corporation may, with the prior
consent of the Trustee pursuant to Section 11.1 of the Trust Agreement, but without the
consent of the Holders of any Bonds, enter into any amendments hereto at any time for any of
the following purposes:
(a) To cure any ambiguity, defect or omission herein or in any amendment hereto;
or
(b) To grant to or confer upon the Corporation any additional rights, remedies,
powers, authority or security that lawfully may be granted to or conferred upon it; or
(c) To add to the covenants and agreements of the City herein contained, or to
surrender any right or power herein reserved to or conferred upon the City; or
39
(d) To increase the Base Payments hereunder to enable the City to proceed to
acquire and install additional assets in addition to the Facilities or modify the Base Payments
hereunder in connection with the issuance of Additional Bonds under the Trust Agreement or
the redemption, refunding or defeasance of a series of Bonds; or
(e) To reflect a change in applicable law; or
(0 To make any amendments required by Moody's or S&P as a condition to rating
the Bonds.
The City and the Corporation may, with notice to but without the prior consent of the
Trustee, and without the consent of the Holder of any Bond, enter into any amendments hereto
at any time and from time to time (i) in connection with the issuance of the Series 2017B
Bonds, (ii) to add Additional Real Property to the description in Exhibit A hereto, consistent
with amendments made pursuant to Section 3.1 of the Base Lease, (iii) to release property
from the description of the 2017 Real Property described in Exhibit A hereto, consistent with a
termination of the Base Lease pursuant to Section 3.6 of the Base Lease, or (iv) to revise the
description of Permitted Encumbrances specified in Exhibit C hereto in connection with the
foregoing amendments.
Notwithstanding anything herein to the contrary, the parties hereto may execute such
supplement to this Purchase and Use Agreement as may be necessary or desirable (with the
advice of Bond Counsel) to correct the legal description of the 2017 Real Property in
connection with such an amendment to the Base Lease and cause such supplement or a short
form and summary thereof to be recorded in appropriate official records.
All other amendments must be approved, if and to the extent required by the Trust
Agreement, by the Trustee and the Holders of the Bonds.
All amendments hereto or to the Exhibits to this Purchase and Use Agreement shall
require an opinion of Bond Counsel to the effect that such amendment is permitted hereunder
and under the laws of the State and will not adversely affect the exclusion from gross income
for federal income tax purposes of the interest evidenced by or paid on the Bonds.
SECTION 10.7. Successors and Assigns. All covenants, promises and agreements
contained in this Purchase and Use Agreement by or on behalf of or for the benefit of the City
or the Corporation, shall bind and inure to the benefit of their respective successors and
assigns, whether so expressed or not.
SECTION 10.8. Applicable Law. This Purchase and Use Agreement shall be
governed by, and interpreted under, the laws of the State of South Carolina.
SECTION 10.9. Recordation. At the option of the Corporation this Purchase and
Use Agreement or a short form and summary hereof may be recorded in appropriate official
records.
[END OF ARTICLE X — SIGNATURE PAGES FOLLOW]
40
f
WITNESS the due execution of this Purchase and Use Agreement effective as of the
day and the year first mentioned above.
CITY OF NORTH AUGUSTA,
SOUTH CAROLINA
(SEAL)
By:
Witness Mayor
Attest:
Clerk-Treasurer
0 0
NORTH AUGUSTA PUBLIC FACILITIES
CORPORATION
(SEAL)
By:
Witness President
Attest
Secretary
STATE OF SOUTH CAROLINA )
PROBATE
COUNTY OF AIKEN )
PERSONALLY appeared before me the undersigned witness, who, on oath says that
(s)he saw the City of North Augusta, South Carolina, by its duly authorized officer, sign, seal
and as its act and deed, deliver the foregoing Installment Purchase and Use Agreement and that
(s)he together with the other witness subscribed above, witnessed the execution thereof
Witness
SWORN TO AND SUBSCRIBED BEFORE ME
this day of , 2017.
Notary Public for South Carolina
My Commission Expires:
STATE OF SOUTH CAROLINA )
PROBATE
COUNTY OF AIKEN )
PERSONALLY appeared before me the undersigned witness, who, on oath says that
(s)he saw North Augusta Public facilities Corporation by its duly authorized officer, sign, seal
and as its act and deed, deliver the foregoing Installment Purchase and Use Agreement, and
that (s)he together with the other witness subscribed above, witnessed the execution thereof
Witness
SWORN TO AND SUBSCRIBED BEFORE ME
this day of , 2017.
Notary Public for South Carolina
My Commission Expires:
0
EXHIBIT A
LEGAL DESCRIPTION OF THE 2017 REAL PROPERTY
A-1
0
EXHIBIT B
DESCRIPTION OF 2017 PROJECT
2017 Project
The remaining balance of the proceeds of the Series 2017B Bonds in the Project Fund is
expected to be applied, together with the Initial Installment Payments and other available funds, to
defray a portion of the costs of the components of the 2017 Project which are as set forth below:
Component of Project Cost
Total $
Note: All construction amounts are estimated.
B-1
EXHIBIT C
PERMITTED ENCUMBRANCES
1. Defects, liens, encumbrances, adverse claims or other matters, if any, created, first
appearing in the Public Records or attaching subsequent to the effective date hereto
2. Rights or claims of parties in possession not shown by the Public Records.
3. Any encroachment, encumbrance, violation or adverse circumstances affecting the
Title that would be disclosed by an accurate and complete land survey of the Land.
4. Easements or claims of easements not show by the Public Records.
5. Any lien or right to lien, for services, labor or materials heretofore furnished,
imposed by law and not shown by the Public Records.
6. Taxes or special assessments which are not shown as existing liens by the Public
Records.
7. Taxes and assessments for the year 2017, and subsequent years, which are a lien but
are not yet due and payable.
8. Encroachments, overlaps, boundary line disputes and any other matters which would
be disclosed by an accurate survey or inspection of the premises.
C-1
EXHIBIT D
BASE PAYMENTS SCHEDULE
Year May 15 November 15
2017
2018
2019
2020
2021
2022
2023
2024
2025
2026
2027
2028
2029
2030
2031
2032
2033
2034
2035
2036
2037
2038
2039
2040
2041
2042
2043
2044
2045
2046
D-1
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0
EXHIBIT E
VALUATION OF FACILITIES*
Assigned Value as of Date of Execution and
Name of Facility Delivery of Agreement*
Stadium
Medac Deck
Hotel Deck
City Hall
Conference Facilities
Infrastructure
Park
Initial Base Payments Percentage of Base Payments Percentage of
Installment Allocated to Facilities Allocated to Facilities
Payment Date Payment Purchase Price Purchased* Payment Date Purchase Price Purchased*
* Assuming completion of 2017 Project as of date of execution and delivery of this Purchase
and Use Agreement. After the Completion Date, the assigned values of the Facilities and the
percentages thereof being purchased shall be recalculated based upon final construction costs of
the Facilities.
E-1
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EXHIBIT F
FORM OF CONTINUING DISCLOSURE UNDERTAKING
F-1
EXHIBIT G
TIF OBLIGATION
UNITED STATES OF AMERICA
STATE OF SOUTH CAROLINA
TAX INCREMENT REVENUE OBLIGATION,
SERIES 2017B, OF THE CITY OF NORTH AUGUSTA,
ISSUED PURSUANT TO SECTIONS 31-6-10 TO 31-6-120,
INCLUSIVE, CODE OF LAWS OF SOUTH CAROLINA, 1976
THE CITY OF NORTH AUGUSTA, SOUTH CAROLINA (the "City") hereby
acknowledges itself indebted, and, for value received, promises to pay to the North Augusta
Public Facilities Corporation (the "Holder") the principal sum of $_,000,000 in the manner
and upon the terms set forth herein. This 2017 Tax Increment Revenue Obligation (this
"Obligation") shall bear interest from , 201_ (calculated on the basis of a 360-day
year with twelve thirty-day months) and shall be payable as to principal and interest in
accordance with the schedule attached hereto as Exhibit A. Both the principal of and interest
on this Obligation are payable in any coin or currency of the United States of America, which
is, at the time of payment, legal tender for the payment of public and private debts.
THIS OBLIGATION constitutes an issue of $ Tax Increment
Revenue Obligation, Series 2017B, issued by the City of North Augusta, pursuant to the
authorization of the Tax Increment Financing Act codified as Sections 31-6-10 to 31-6-120,
Code of Laws of South Carolina, 1976, and an ordinance duly enacted by the City Council of
the City of North Augusta on , 2017 (the "Obligation Ordinance"). For the
payment of principal and interest on this obligation, there are pledged the incremental tax
revenues generated from the Redevelopment Project Area (as such term is defined in the
Obligation Ordinance) and deposited in the tax allocation fund, including any additional parcels
that may be included within the Redevelopment Project Area subsequent to the date hereof
The entire special tax allocation fund is pledged to the payment of the Obligation as
described in the Obligation Ordinance. The City may issue additional obligations pursuant to
the Act secured by the entire special tax allocation fund on a parity in all respects with this
Obligation. The full faith, credit, and taxing power of the City are not pledged to the payment
of this Obligation. This Obligation is not subject to acceleration in the event of payment or
other default.
This Obligation shall terminate and cease to be of legal effect in the event of the
termination of the "Installment Purchase and Use Agreement between North Augusta Public
Facilities Corporation, as Seller, and City of North Augusta, South Carolina, as Buyer" dated
, 2017, as the same was approved in the Obligation Ordinance.
This Obligation is subject to optional redemption without penalty, in whole or in part,
on any business day.
F-1
OTh
All payments by way of principal and interest shall be paid by check or draft mailed at
the times provided herein from the City to the person in whose name this Obligation is
registered at the address shown on the registry books of the City, or by interfund transfer by
the City; provided, however, that the fmal payment of principal and interest shall be made upon
surrender of this Obligation to the City.
Certain capitalized terms used herein and not otherwise defined shall have the meanings
ascribed thereto in the Obligation Ordinance. A certified copy of the Obligation Ordinance is
on file in the office of the City Clerk.
IT IS HEREBY CERTIFIED AND RECITED that all acts, conditions, and things
required by this Constitution and Laws of the State of South Carolina to exist, to happen, or
to be performed precedent to or in the issuance of this Obligation, do exist, have happened,
and have been performed in regular and due time, form and manner.
F-2
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IN WITNESS WHEREOF, THE CITY OF NORTH AUGUSTA, pursuant to the
authorization of Sections 31-6-10 to 31-6-120, inclusive, Code of Laws of South Carolina,
1976, and an ordinance duly enacted by the City Council of the City of North Augusta has
caused these presents to be signed in its name by its Mayor and attested by the Clerk of City
Council and its Corporate Seal to be impressed hereon, and this Obligation to be dated as of
the day of , 20_.
(SEAL) CITY OF NORTH AUGUSTA, SOUTH CAROLINA
Mayor
ATTEST:
City Clerk
F-3
0
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
the within Obligation of the City of North Augusta, South Carolina, and hereby irrevocably
constitutes and appoints
Attorney to transfer the same on books of the Registrar with full power of substitution in the
premises.
Dated:
, 20_
Signature Guaranteed
REGISTER OF OWNERSHIP OF
CITY OF NORTH AUGUSTA, SOUTH CAROLINA
TAX INCREMENT REVENUE OBLIGATION, SERIES 20_
Date of
Registration of Signature of Authorized
Name of Registered Owner Transfer Official of City
F-4
lin
0
0
Exhibit A
$ Tax Increment Revenue Obligation,
Series 2017B
Debt Service Schedule
Bond Principal Interest Total
Payment Date Amount Amount Debt Service
F-5
0 libr
EXHIBIT H
INITIAL INSTALLMENT PAYMENTS
F-1
0
EXHIBIT C
List of Real Property in the Redevelopment Project Area
MAP-
BLOCK-
OWNER PARCEL DESCRIPTION
CITY OF NORTH AUGUSTA 003-16-01-033 TRACT 1 N OF SAVANNAH RIVER
CITY OF NORTH AUGUSTA 003-16-02-001 PT OF LT S GA RR W HWY#25 NS SAV RIV
WESTO DEVELOPMENT COMPANY LLC 003-16-03-001 TRACT D
PAINE TRAVERS W III 003-16-04-001 HAMMONDS FERRY PHASE A2LOT 7 BLOCK 14
WESTO DEVELOPMENT CO LLC 003-16-04-002 HAMMONDS FERRY PHASE A2LOT 6 BLOCK 14
WESTO DEVELOPMENT COMPANY LLC 003-16-04-003
WESTO DEVELOPMENT COMPANY LLC 003-16-04-004
WESTO DEVELOPMENT COMPANY LLC 003-16-04-005
WESTO DEVELOPMENT COMPANY LLC 003-16-04-006
WESTO DEVELOPMENT COMPANY LLC 003-16-04-007
WESTO DEVELOPMENT COMPANY LLC 003-16-04-008
WESTO DEVELOPMENT CO LLC 003-16-05-001 HAMMONDS FERRY PHASE A2LOT I BLOCK 15
WESTO DEVELOPMENT CO LLC 003-16-05-002 HAMMONDS FERRY PHASE A2LOT 2 BLOCK 15
JOPLING JOHN P JR&PATRICIA R 003-16-05-003 HAMMONDS FERRY PHASE A2LOT 3 BLOCK 15
ARMSTRONG JAMES H JR&CATHY L 003-16-05-004 HAMMONDS FERRY PHASE A2LOT 4 BLOCK 15
AVERY DAVID B&MARION M 003-16-05-005 HAMMONDS FERRY PHASE A2LOT 5 BLOCK 15
WESTO DEVELOPMENT COMPANY LLC 003-16-06-001
WESTO DEVELOPMENT COMPANY LLC 003-16-06-002
WESTO DEVELOPMENT COMPANY LLC 003-16-06-003
WESTO DEVELOPMENT COMPANY LLC 003-16-06-004
WESTO DEVELOPMENT COMPANY LLC 003-16-06-005
WESTO DEVELOPMENT COMPANY LLC 003-16-07-001
WESTO DEVELOPMENT COMPANY LLC 003-16-08-001
WESTO DEVELOPMENT COMPANY LLC 003-16-08-002
WESTO DEVELOPMENT COMPANY LLC 003-16-08-003
WESTO DEVELOPMENT COMPANY LLC 003-16-08-004
WESTO DEVELOPMENT COMPANY LLC 003-16-08-005
WESTO DEVELOPMENT COMPANY LLC 003-16-08-006
WESTO DEVELOPMENT COMPANY LLC 003-16-08-007
WESTO DEVELOPMENT COMPANY LLC 003-16-09-001
WESTO DEVELOPMENT COMPANY LLC 003-16-09-002
WESTO DEVELOPMENT COMPANY LLC 003-16-10-001
WESTO DEVELOPMENT COMPANY LLC 003-16-11-001
WESTO DEVELOPMENT COMPANY LLC 003-16-12-001
WESTO DEVELOPMENT COMPANY LLC 003-16-13-001
C-1
WESTO DEVELOPMENT COMPANY LLC 003-16-14-001
WESTO DEVELOPMENT COMPANY LLC 003-16-14-002
WESTO DEVELOPMENT COMPANY LLC 003-16-15-001
FIRST BAPTIST CHURCH OF NORTH 007-10-15-003 LTS 4 5 6 7 8&9
ROBINSON DONALD W 007-10-19-001 N/W CORNER LT 6 BLK 30 GAAVE
SMITH JOHN W L 007-10-19-002 L 6 BK 30 COR SPG GROVE&GA AVE
MCELMURRAY P STEPHENS 007-10-19-010 EASTERN 1/2 PT LT 1 BLK 30
EUBANK CHARLES H&NANCY HUEY 007-10-19-011 WESTERN 1/2 PT LT 1 BLK 30
MYERS DAVID E&LINDY M 007-10-19-012 WESTERN PRTN LOT 1 BLK 30
BRANTLEY JULIE A 007-10-19-013 503 GA AVE
GIBSON GARY W 007-10-19-014 507 GEORGIA AVENUE
GIBSON GARY W 007-10-19-015 PARKING LOT-GA AVE
CDDPROP LLC 007-10-19-016 LT 3 BLK 30 E/S GA AVE
CDDPROP LLC 007-10-19-017 BUCKS PIZZA
THE WILLIAM STEPHEN HARLEY RTA 007-10-19-018 SOUTHERN HALF LT 4 BLK 30
THE WILLIAM STEPHEN HARLEY RTA 007-10-19-019 NORTHERN HALF LT 4 BLK 30
NURNBERGER,JR STANLEY LAWSON 007-10-19-020 E/SD GA AVE BLK 30
BEST SELF STORAGE LLC 007-10-19-021 L 5 BLK 30 E/S GA AVE
HIXON ELIZABETH C 007-10-20-002 E/PT LTS 7&8 BLK 29
FIRST BAPTIST CHURCH OF NORTH 007-10-20-003 LT ON SPRING GROVE AVE BLK 29
KNIGHT BENJAMIN M 007-10-20-005 N PT LT 5 BLK 29
MATTHEWS ROBERT G 007-10-20-006 LOT ON GEORGIA AVE BLK 29
PEOPLES COMMUNITY BANK OF SC 007-10-20-007 W/S GA AVE N/PT LT 4 BANKN AUG
PEOPLES COMMUNITY BANK OF SC 007-10-20-008 LOT ON GA AVE N AUGUSTA BANK
HEATH CHRISTOPHER 007-10-20-009 LOT ON GEORGIA AVE BLK 29
TIERNEY KEVIN 007-10-20-010 LOT ON GEORGIA AVE BLK 29
DAY RICHARD G 007-10-20-011 BLK 29 W/S GA AVE
BOEHMER CONNIE&LAMAR CRAIG 007-10-20-012 LT 2 BLK 29 ON GA AVE
KELLER MARY EDNA 007-10-20-013 BLK 29 COR PINE GROVE&GA AVE
JONES LARK W 007-10-20-014 PT LT 1
HOLEMAN NELL BUSH 007-10-20-015 N/S PINE GROVE AVE
BUSHS FLOWER SHOPS INC 007-10-20-016 E PTN L14&15 BK 29 N/S PINE GVE
CARROLL MICHAEL J 007-10-20-017 W/PT LTS 14&15 BLK 29
EMW ENTERPRISES LLC 007-10-20-018 L 13 BK 29 E/S WEST AVE
PEOPLE'S COMMUNITY BANK OF SC 007-10-20-019 L 11&12 BK 29 DRIVE IN NA BANK
BAUMGARDNER JEFFREY S 007-10-20-020 L 10 BLK 29 E/S WEST AVE
FIRST BAPTIST CHURCH OF NORTH 007-10-20-021 LT 9 BLK 29 WEST AVENUE
MAA LLC 007-10-21-002 LOT 9 BLK 28 N AUGUSTA S/D
WALTON OPTIONS FOR INDEPENDENT 007-10-21-003 LT 8 BLK 28 W/S WEST AVE
ANDERSON SAMUEL LEE III 007-10-21-004 LT 7 BLK 28 W/S WEST AVE
JONES SAMUEL R&LINDA P 007-10-21-005 L 6 BLK 28 W/S WEST AVE
JACKSON-WATKINS FAMILY PARTNER 007-10-21-006 LT 5 BLK 28 W/S WEST AVENUE
BRYANT RONALD E 007-10-21-007 L 4 BLK 28 S/S WEST AVE
C-2
0 4
BRYANT PROPERTIES OF NORTH AUG 007-10-21-008 LT 3 BLK 28 S/S WEST AVE
PIPPEN STEPHEN M 007-10-21-009 LTS 1&2 BLK 28 S/S WESTAVE
BRANTLEY REAL ESTATE LLC 007-10-27-004 L 4 PT L-5 BK 37
CHARFEN CHARLOTTE N 007-10-27-005 L 3 BK 37 W/S WEST AVE
WETHERINGTON PHILLIP R&DAWN 007-10-27-007 LT 2 BK 37 COR BUENA VISTA&WEST
WETHERINGTON PHILLIP R&DAWN 007-10-27-015 LT 1 BK 37 COR BUENA VISTA&WEST
7 SANDHILL CRANE LLC 007-10-28-001 L 4 THRU 8 BK 36 N AUG SUB
GIBSON GARY W&A H GIDDENS D/ 007-10-28-002 LT 3 BLK 36
GIBSON GARY W&A H GIDDENS D/ 007-10-28-003 L 2 BLK 36 W/S GA AVE
SOUTH CAROLINA NATIONAL BANK 007-10-28-004 BLD AT 402 GA AVE N AUG
WACHOVIA BANK N A 007-10-28-005 N/S BUENA VISTA
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007-13-28-004
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C-9
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C-12
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C-13
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C-14
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ILARDI FREDERIC A 007-19-03-011 LT 24 THE RIVER CLUB PH II
ALLEN CHARLES C JR 007-19-03-012 LT 25 THE RIVER CLUB PH II
SIMONS PEGGY E 007-19-03-013 LT 26 THE RIVER CLUB PH II
ABDULLA ABDULLA M&SUE A 007-19-03-014 LT 27 THE RIVER CLUB PH II
JOSEPH ALLAN&KLARA 007-19-03-015 LT 28 THE RIVER CLUB PH II
HATCH ROBERT L&TERESA E 007-19-03-016 LT 29 THE RIVER CLUB PH II
SMITH JAMES T&KIMBERLY M 007-19-03-017 LT 30 THE RIVER CLUB PH II
NEZARATIZADEH MAHMOUD&ANN C 007-19-03-018 LT 31 THE RIVER CLUB PH II
HARRISON KEVIN E&LYNDA H 007-19-03-019 LT 32 THE RIVER CLUB PH II
SMITH DANIEL J&LAUREN C 007-19-03-020 LT 33 THE RIVER CLUB PH II
SANTOS LARA 007-19-03-021 LT 34 THE RIVER CLUB PH II
CAMPBELL TIMOTHY R SR 007-19-03-022 LT 35 THE RIVER CLUB PH II
THOMPSON PAMELA J&GLEN F 007-19-03-023 LT 36 THE RIVER CLUB PH II
RYANS JANICE J 007-19-03-024 LT 37 THE RIVER CLUB PH II
KONG FENG-MING 007-19-03-025 LT 38 THE RIVER CLUB PH II
ADAMS ARTHUR S&JENNIFER R 007-19-03-026 LT 39 THE RIVER CLUB PH II
MCGAHEE CHARLES W SR TRUSTEE 007-19-03-027 LT 40 THE RIVER CLUB PH II
THE CITY OF NORTH AUGUSTA 007-19-03-028
THE RIVER CLUB HOMEOWNER'S ASS 007-19-03-029 THE RIVER CLUB PHASE 2 LOT L-2
RIVER GOLF INC 007-19-04-001 PT OF TRACT A
NOLTING LISA L 007-20-02-001 LT 43 THE RIVER CLUB PH II-A
RIVER GOLF INC 007-20-02-002 LT 42 THE RIVER CLUB PH II-A
SINGER FREDERICK L 007-20-02-044 LT 44 THE RIVER CLUB PH II-A
JONES AUTUMN STACY 007-20-04-001 E/SD CENTER STREET
THE KAILASH B AND PREM L SHARM 007-20-04-009 CENTRE-MARKET&COOK STREETS
MCGEE KELLY K 007-20-04-010 LT 41 THE RIVER CLUB PH II
RIVER GOLF INC 007-20-04-011 TRACT B
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EXHIBIT D
Description of the Real Property
Parcel Present Owner
007-17-02-001 Greenstone Hammond's Ferry, LLC*
007-18-05-001 City of North Augusta
007-13-01-007 City of North Augusta
007-17-01-001 City of North Augusta
007-13-10-002 City of North Augusta
*
A portion of this parcel shall be deeded to the City prior to the execution and delivery of
the Financing Documents.
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EXHIBIT E
Description of the Project
The proceeds of the Bonds and other available funds are expected to be applied to
defray the costs of the components of the Project as follows:
Component of Project Cost
Baseball Stadium $ 40,300,000
Parking 19,296,541
Conference Center 8,000,000
Infrastructure 3,500,000
Park 1,000,000
Total $ 72,096,541
Note: All construction amounts are estimated.
The portions of the above Project components to be financed through the issuance of
the TIF Obligations and the payment by the City of periodic debt service thereon to the
Corporation, which payments shall be applied as described in the Purchase and Use
Agreement, are as follows:
Component of Project Portion Payable from TIF Obligations
Baseball Stadium $ 25,000,000
Parking 11,000,000
Conference Center 7,000,000
Total $ 43,000,0001
1 Pursuant to the IGA's with the School District and the County,the City reserves the right to reallocate costs
from individual components payable from the TIF Obligation to other components within the $43 million
aggregate estimate.
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EXHIBIT F
Form of TIF Obligation
UNITED STATES OF AMERICA
STATE OF SOUTH CAROLINA
TAX INCREMENT REVENUE OBLIGATION,
SERIES 20_, OF THE CITY OF NORTH AUGUSTA,
ISSUED PURSUANT TO TITLE 31, CHAPTER 6,
OF THE CODE OF LAWS OF SOUTH CAROLINA 1976, AS AMENDED
THE CITY OF NORTH AUGUSTA, SOUTH CAROLINA (the "City") hereby
acknowledges itself indebted, and, for value received, promises to pay to
(the "Holder") the principal sum of$ in the manner and upon the terms set forth
herein. This 20 Tax Increment Revenue Obligation (this "Obligation") shall bear interest
from [at the interest rate of %per annum (calculated on the basis of a 360-
day year with twelve thirty-day months)] and shall be payable as to principal and interest in
accordance with the schedule attached hereto as Exhibit A. Both the principal of and interest
on this Obligation are payable in any coin or currency of the United States of America,
which is, at the time of payment, legal tender for the payment of public and private debts.
THIS OBLIGATION constitutes an issue pursuant to the authorization of the Tax
Increment Financing Act codified as Title 31, Chapter 6 of the Code of Laws of South
Carolina 1976, as amended (the "Act"), and an ordinance duly enacted by the City Council
of the City of North Augusta on , 20_ (the "Bond Ordinance"). For the payment
of this Obligation, both principal and interest, there are pledged the incremental tax revenues
generated from the Redevelopment Project Area (as such term is defined in the Obligation
Ordinance), including any additional parcels that may be included within the
Redevelopment Project Area subsequent to the date hereof.
The [entire/[describe specific portion thereof]] special tax allocation fund is pledged
to the payment of the Obligation as authorized in the Bond Ordinance. The City may issue
additional obligations pursuant to the Act secured by the entire special tax allocation fund on
a parity in all respects with this Obligation. The full faith, credit, and taxing power of the
City are not pledged to the payment of this Obligation.
This Obligation is subject to redemption at the option of the City, in whole or in part,
at any time at par plus accrued interest to the date of redemption.
All payments by way of principal and interest shall be paid by check or draft mailed
at the times provided herein from the City to the person in whose name this Obligation is
registered at the address shown on the registry books of the City, or by interfund transfer by
the City; provided, however, that the final payment of principal and interest shall be made
upon surrender of this Obligation to the City.
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Certain capitalized terms used herein and not otherwise defined shall have the
meanings ascribed thereto in the Bond Ordinance. A certified copy of the Bond Ordinance
is on file in the office of the City Clerk.
IT IS HEREBY CERTIFIED AND RECITED that all acts, conditions, and things
required by the Constitution and laws of the State of South Carolina to exist, to happen, or to
be performed precedent to or in the issuance of this Obligation, do exist, have happened, and
have been performed in regular and due time, form and manner.
IN WITNESS WHEREOF, THE CITY OF NORTH AUGUSTA, pursuant to the
authorization of the Act and the Bond Ordinance, has caused these presents to be signed in
its name by its Mayor and attested by the City Clerk and its corporate seal to be impressed
hereon, and this Obligation to be dated as of the day of , 20_.
(SEAL) CITY OF NORTH AUGUSTA,
SOUTH CAROLINA
Mayor
ATTEST:
City Clerk
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Exhibit A
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