RES 2017-37 Adopted RESOLUTION NO. 2017-37
A RESOLUTION TO AUTHORIZE THE CITY TO ENTER INTO AN AMENDMENT
PURCHASE AND USE
TO BASE LEASE AGREEMENT AND INSTALLMENT P U
AGREEMENT; AND TO TAKE SUCH ACTIONS AS ARE NECESSARY IN
FURTHERANCE OF THE SUBDIVISION OF THE CLUBHOUSE
WHEREAS, the City of North Augusta, South Carolina (the "City") is
participating in the development of the public-private development known as Project
Jackson; and
WHEREAS, to finance certain public improvements contained within Project
Jackson, the North Augusta Public Facilities Corporation (the "Corporation") issued its
$69,450,000 original principal amount Installment Purchase Revenue Bonds (City of North
Augusta Project), Taxable Series 2017B (the "Bonds") on May 16, 2017; and
WHEREAS, the Bonds were issued under the provisions of a Trust
Agreement dated May 16, 2017 (the "Trust Agreement"), by and between the Corporation
and U.S. Bank National Association, as Trustee (the "Trustee"), and the City and the
Corporation entered into an Installment Purchase and Use Agreement dated May 16, 2017
(the "Purchase and Use Agreement") and a Base Lease Agreement dated May 16, 2017 (the
"Base Lease"); and
WHEREAS, the Purchase and Use Agreement and Base Lease provide for
the installment purchase by the City of certain improvements and the use of such
improvements during the term of the Bonds; and
WHEREAS, the provisions of Section 5.3(c) of the Trust Agreement require
that prior to the Trustee releasing certain proceeds of the Bonds to provide funds with which
to design, construct, furnish, or equip the Clubhouse (as defined in the Trust Agreement),
certain conditions have to be met, including (i) the Base Lease and the Purchase and Use
Agreement shall have each been amended to include a legal description of the Clubhouse
reflecting the legal subdivision of the Clubhouse from other facilities located on the site of
the Clubhouse, such amendments shall have been recorded and copies of both showing the
date of recording shall have been provided to the Trustee, (ii) the Trustee shall have received
an ALTA Title Insurance policy, endorsement to an existing ALTA Title Insurance policy,
or an opinion of counsel indicating that the Clubhouse is free and clear of any mortgage
liens, and reflecting all matters of record impacting the use and ownership of the Clubhouse,
which matters conform with the requirements of the Master Development Agreement (as
defined in the Trust Agreement) and do not materially interfere with the development and
use of the Clubhouse as contemplated thereby, as certified to the Trustee by the City
Representative (as defined in the Trust Agreement), and (iii) the Trustee shall have received
a legal opinion to the effect that the Clubhouse has been lawfully subdivided in accordance
with the requirements of the Master Development Agreement (collectively, the
"Conditions"); and
WHEREAS, in order to satisfy the Conditions, the City now has before it a
draft of an Amendment to Base Lease Agreement and Installment Purchase and Use
Agreement between the City and the Corporation (the "Amendment"); and
WHEREAS, the City Council finds that entering into the Amendment and
affecting the subdivision and acquisition of the Clubhouse is a necessary and desirable step,
contemplated by the documents entered into with respect to the issuance of the Bonds, in
order to continue the development of Project Jackson.
NOW, THEREFORE, BE IT RESOLVED by the Mayor and City Council of
the City of North Augusta, in meeting duly assembled and by the authority thereof, that:
1. The City approves the Amendment presented before this meeting.
2. The Mayor of the City, the City Clerk of the City and the City
Administrator (the "City Authorized Representatives") are authorized
to execute the Amendment on behalf of the City.
3. The City Authorized Representatives are authorized to approve and
execute such further documents, agreements, certificates or
documentation that are in keeping with the purposes of the
Amendment and which further the acquisition and subdivision of the
Clubhouse, including, but not limited to, approving the Master Deed
for Greenstone Condominium Horizontal Property Regime, which
creates the condominium unit that comprises the Clubhouse, and
approval of the deed in favor of the City to said condominium unit.
DONE, RATIFIED AND ADOPTED BY THE MAYOR AND CITY COUNCIL OF THE
IliCITY OF NORTH AUGUSTA, SOUTH CAROLINA,ON THIS THE 5TH DAY OF SEPTEMBER, 2017.
Robert A. Pettit, Mayor
ATTEST:
r,ck._
Donna B. Young, Ci y Cler
AMENDMENT TO BASE LEASE AGREEMENT
AND
INSTALLMENT PURCHASE AND USE AGREEMENT
between
CITY OF NORTH AUGUSTA, SOUTH CAROLINA
and
NORTH AUGUSTA PUBLIC FACILITIES CORPORATION
Dated September_,2017
AMENDMENT TO BASE LEASE AGREEMENT AND
INSTALLMENT PURCHASE AND USE AGREEMENT
This AMENDMENT TO BASE LEASE AGREEMENT AND INSTALLMENT PURCHASE AND
USE AGREEMENT, dated September , 2017 (this "Amendment") is 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"), and the NORTH AUGUSTA PUBLIC FACILITIES CORPORATION, a
nonprofit corporation duly organized under the laws of the State of South Carolina(the "Corporation").
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 of South Carolina; and
WHEREAS, the Corporation and the City agreed to a financing plan under the terms of an Installment
Purchase and Use Agreement dated May 16, 2017 (the "Purchase and Use Agreement") between the
City and the Corporation pursuant to which the Corporation undertook to acquire, improve, construct and
equip the 2017 Project and to pay the Base Lease Rent to the City for the costs of the Ancillary Projects
(as such terms are defined in the Purchase and Use Agreement); and
WHEREAS, the City and the Corporation entered into a Base Lease Agreement dated May 16, 2017
(the "Base Lease") pursuant to which the City conveyed the Existing Facilities (as defined in the Base
Lease) to the Corporation and is leasing certain real property (the "2017 Real Property") to the
Corporation; and
WHEREAS, the payments to be made under the Purchase and Use Agreement and the rights of the
Corporation thereto (except certain reserved rights as provided therein) were assigned to U.S. Bank
National Association, as Trustee (the "Trustee"), pursuant to the terms of a Trust Agreement dated May
16, 2017 (the "Trust Agreement") between the Corporation and the Trustee, in order to secure and
provide a source of payment for the Corporation's $69,450,000 Installment Purchase Revenue Bonds
(City of North Augusta Project), Taxable Series 2017B (the "Series 2017B Bonds"), the proceeds of
which are being used, in part,to acquire, improve, construct and equip the 2017 Project; and
WHEREAS, Exhibit A to both the Purchase and Use Agreement and the Base Lease includes a legal
description of the 2017 Real Property; and
WHEREAS, pursuant to Section 5.3(c) of the Trust Agreement, no proceeds of the Series 2017B
Bonds may he spent to design, construct, furnish or equip the clubhouse portion (the "Clubhouse") of the
baseball stadium component of the 2017 Project until "the Base Lease and the Purchase and Use
Agreement shall have each been amended to include a legal description of the Clubhouse reflecting the
legal subdivision of the Clubhouse from other facilities located on the site of the Clubhouse"; and
WHEREAS, Section 10.6 of the Purchase and Use Agreement provides, in part:
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 ... in connection with Section 5.3(c) of the Trust
Agreement.
WHEREAS, Section 6.4 of the Base Lease provides, in part:
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 ... in connection with Section 5.3(c) of the Trust
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements,
herein set forth the City and the Corporation do hereby covenant and agree as follows:
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 Purchase and Use Agreement or the Base Lease, as
applicable, unless some other meaning is plainly intended.
SECTION 1.2. Rules of Construction. All references in the Base Lease to "this Base Lease" shall
be deemed to refer to the Base Lease as supplemented and amended by this Amendment. All references
in the Purchase and Use Agreement to "this Purchase and Use Agreement" shall be deemed to refer to the
Purchase and Use Agreement as supplemented and amended by this Amendment. All references in the
Base Lease and the Purchase and Use Agreement to "2017 Real Property" shall mean the real property
described in Exhibit A thereto, as amended by Exhibit A attached hereto.
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.
ARTICLE II
AMENDMENT OF THE BASE LEASE
AND PURCHASE AND USE AGREEMENT
SECTION 2.1. Amended Description of 2017 Real Property. Exhibit A of the Base Lease and
Exhibit A of the Purchase and Use Agreement, containing the legal description of the 2017 Real Property,
are hereby amended to include a legal description of the Clubhouse reflecting the legal subdivision of the
Clubhouse from other facilities located on the site of the Clubhouse. Exhibit A of the Base Lease and
Exhibit A of the Purchase and Use Agreement are hereby replaced by Exhibit A attached hereto.
ARTICLE III
MISCELLANEOUS
SECTION 3.1. Binding Effect. This Amendment shall inure to the benefit of and shall be binding
upon the City, the Corporation and their respective successors and assigns.
SECTION 3.2. 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.
2
SECTION 3.3. Execution in Counterparts. This Amendment 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 3.4. Applicable Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of South Carolina.
SECTION 3.5. 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 3.6. Confirmation of Base Lease and Purchase and Use Agreement. Except as
expressly supplemented or amended by this Amendment, the Base Lease and the Purchase and Use
Agreement are and shall remain unchanged and in full force and effect in accordance with their terms.
Nothing in this Amendment is intended, or shall be construed, to constitute a novation or an accord and
satisfaction of any obligations evidenced thereby.
[Remainder of Page Left Blank]
3
IN WITNESS WHEREOF, the City has caused this Amendment to Base Lease Agreement and
Purchase and Use Agreement to be signed in its name by its duly authorized officers as of the date first
written above.
CITY OF NORTH AUGUSTA, SOUTH
(SEAL) CAROLINA
By:
WITNESS: Mayor
ATTEST:
City Clerk
STATE OF SOUTH CAROLINA )
ACKNOWLEDGMENT
COUNTY OF AIKEN )
I, , a Notary Public, do hereby certify that the City of North
Augusta, South Carolina, by their duly authorized officers, personally appeared before me this day and
acknowledged the due execution of the foregoing instrument.
SWORN to and subscribed before me
this _day of , 2017
Notary Public for South Carolina
My Commission expires:
Signature Page of the City
IN WITNESS WHEREOF, the Corporation has caused this Amendment to Base Lease Agreement
and Purchase and Use Agreement to be signed in its name by its duly authorized officers as of the date
first written above.
NORTH AUGUSTA PUBLIC FACILITIES
CORPORATION
WITNESS:
By:
President, Board of Directors
ATTEST:
Secretary, Board of Directors
STATE OF SOUTH CAROLINA )
ACKNOWLEDGMENT
COUNTY OF AIKEN )
I, , a Notary Public, do hereby certify that North Augusta
Public Facilities Corporation, by their duly authorized officers, personally appeared before me this day
and acknowledged the due execution of the foregoing instrument.
SWORN to and subscribed before me
this day of , 2017
Notary Public for South Carolina
My Commission expires:
Signature Page of the Corporation
ACKNOWLEDGEMENT OF TRUSTEE
U.S. Bank National Association, as Trustee, under the terms of the Trust Agreement, hereby
acknowledges that, by the execution of this acknowledgement below, it has received the notice required
by Section 10.6 of the Purchase and Use Agreement of the entering into by the Corporation and the City
of the foregoing Amendment.
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By:
Name:
Title:
Acknowledgement of Trustee
EXHIBIT A
AMENDED LEGAL DESCRIPTION
[Insert legal descriptions]
A-1