08-27-1991 Regular MeetingAugust 27, 1991
The Downtown Smyrna Development Authority met August 27, 1991 at Smyrna
City Hall beginning at 7:00 o'clock p.m.
Present was:
Willouise Spivey
Jim Pitts
C. J. Fouts
Jimmy Wilson
Alton Curtis
Hubert Black
Also present was City Administrator John Patterson, City Clerk Melinda
Dameron and City Attorney Charles E. Camp.
John Patterson presented an adjustment to the FY91 DDA budget of $20,000
for paying agent fees and also presented the fiscal year 1992 DDA budget
for adoption.
Willouise Spivey made a motion the adjustment to the FY91 budget and the
proposed FY92 budget be adopted as presented. Alton Curtis seconded the
motion which was approved unanimously.
Jimmy Wilson made a motion the minutes from the March 11, 1991 meeting be
approved as submitted. Hubert Black seconded the motion which carried
unanimously.
With no further business, meeting adjourned at 7:30 p.m.
r
1306 Bank Street / P. O. Box 1226, Smyrna, Georgia 30081 / (404) 434-6600
TO: John C. Patterson
City Administrator
FROM: Emory L. McHugh, III
Finance Director
DATE: June 27, 1991
SUBJECT: BUDGETS FOR SPECIAL REVENUE FUNDS
With the end of the 1991 fiscal year nearly upon us for those
special revenue funds under the control of the DDA and the Smyrna
Housing Authority, they will need to adopt operating budgets for
the upcoming fiscal year. In addition, some adjustments will
need to be made to the existing budget for the DDA Fund.
The adoption of these budgets is required by State Law and a
necessary. part of the City's financial statements if we are to
continue receiving the GFOA Certificate of Excellence in the
future. Please schedule a meeting with these two authorities as
soon as possible to adopt their budgets. The adjustment to the
DDA Fund that was mentioned will need to be made soon so that
they can be incorporated into the June financial statements.
Since the City handles the accounting records for the DDA, we
have included our recommendations for next, year's budget along
with the adjustment that needs to be made for that Authority.
However, we are unfamiliar with the future plans of the Housing
Authority. It should be noted that they ended the FY 1990 year
with less than $6,500. With expenditures being limited to that
amount plus interest earned to date, the only other budget item
of concern would be the interest earned on the fund balance for
next year.
Thanks in advance to your prompt attention in this matter.
cc A. Max Bacon
Claudia Edgar
Sharon Williams
MAYOR
A. MAX BACON
WARD l WARD 2 WARD 3 WARD 4 WARD 5
CITY COUNCIL: BOB DAVIS WADE LNENICKA BILL SCOGGINS JIM HAWKINS JACK SHINALL
CITY ADMINISTRATOR CITY CLERK CITY ATTORNEY
JOHN C. PATTERSON MELINDA DAMERON CHARLES E. CAMP
WARD 6 WARD 7
KATHY JORDAN JOHN STEELY
RECORDER'S COURT JUDGE
C. V. REEVES
0
CITY OF SMYRNA, GEORGIA
DOWNTOWN DEVELOPMENT AUTHORITY
FISCAL YEAR ENDING JUNE 30, 1991
RECOMMENDED BUDGET ADJUSTMENTS
INCREASES DECREASES
Bond Issuance Costs (20,000)
Paying Agents fees 20,000
'.
CITY OF SMYRNA, GEORGIA
DOWNTOWN DEVELOPMENT AUTHORITY
FISCAL YEAR ENDING JUNE 30, 1992
RECOMMENDED BUDGET
REVENUES
Interest on Checking $2,000
OTHER FINANCING SOURCES
Operating Transfers In
(City of Smyrna General Fund) 477,853 $479,853
EXPENDITURES
Paying Agent Fees $20,000
Interest Expense 1,100,000 $1,120,000
0 `I t
BOND RESOLUTION
A RESOLUTION TO PROVIDE FOR THE ISSUANCE OF DOWNTOWN SMYRNA
DEVELOPMENT AUTHORITY REVENUE REFUNDING BONDS, SERIES 1993, IN THE
AGGREGATE PRINCIPAL AMOUNT OF $11,985,000 PURSUANT TO AND IN
CONFORMITY WITH A RESOLUTION ADOPTED SEPTEMBER 5, 1989, AS
SUPPLEMENTED NOVEMBER 8, 1989, AND A RESOLUTION ADOPTED FEBRUARY 5,
1990, AS SUPPLEMENTED AND AMENDED MARCH 22, 1990 AND APRIL 2, 1990
AND PURSUANT TO THE CONSTITUTION AND STATUTES OF THE STATE OF
GEORGIA; TO AUTHORIZE THE REFUNDING AND DEFEASANCE OF $4,025,000
AGGREGATE PRINCIPAL AMOUNT OF THE OUTSTANDING DOWNTOWN SMYRNA
DEVELOPMENT AUTHORITY REVENUE BONDS, SERIES 1989 AND $6,350,000
AGGREGATE PRINCIPAL AMOUNT OF THE OUTSTANDING DOWNTOWN SMYRNA
DEVELOPMENT AUTHORITY REVENUE BONDS, SERIES 1990, TO PROVIDE FUNDS
TO BE APPLIED TOWARD THE COST OF THE OVERALL UNDERTAKING NOW
CONTEMPLATED AND TO PAY ALL EXPENSES NECESSARY TO ACCOMPLISH THE
FOREGOING BY THE ISSUANCE AND SALE OF SAID SERIES 1993 BONDS FOR
THAT PURPOSE; TO RATIFY, REAFFIRM AND ADOPT ALL APPLICABLE TERMS,
PROVISIONS, COVENANTS AND CONDITIONS OF THE RESOLUTIONS OF
SEPTEMBER 5, 1989, NOVEMBER 8, 1989, FEBRUARY 5, 1990, MARCH 22,
1990 AND APRIL 2, 1990; TO APPROVE, AUTHORIZE AND PROVIDE FOR THE
EXECUTION OF A SECOND AMENDED AND RESTATED LEASE CONTRACT, DATED AS
OF SEPTEMBER 1, 1989, WITH THE CITY OF SMYRNA; TO PROVIDE FOR THE
CREATION AND MAINTENANCE OF CERTAIN FUNDS; TO PROVIDE FOR THE
ISSUANCE UNDER CERTAIN CIRCUMSTANCES OF ADDITIONAL PARITY BONDS; TO
AUTHORIZE AND DIRECT THE EXECUTION OF A CERTIFICATE PERTAINING TO
THE PROCEEDS DERIVED FROM THE SALE OF THE SERIES 1903 BONDS; TO
AUTHORIZE THE PREPARATION, USE AND DELIVERY OF A PRELIMINARY
OFFICIAL STATEMENT AND OFFICIAL STATEMENT IN CONNECTION WITH THE
OFFER AND SALE OF THE SERIES 1993 BONDS; AND TO PROVIDE FOR THE
REMEDIES OF THE OWNERS OF THE SERIES 1993 BONDS, AND FOR OTHER
PURPOSES:
WHEREAS, pursuant to an amendment to Article VII, Section VII,
Paragraph I of the Constitution of the State of Georgia of 1945
(Georgia Laws 1970, p. 1117 et seq.) and now specifically continued
pursuant to an Act of the General Assembly (Georgia Laws 1986, p.
3957 et seq.) as a part of the Constitution of the State of Georgia
of 1986, and under the provisions of Georgia Laws 1989, p. 4382 et
seq., known as the "Downtown Smyrna Development Authority Act" (the
"Authority Act") there was created a body corporate and politic,
designated as the "Downtown Smyrna Development Authority"
(hereinafter sometimes referred to as the "Authority") and the
Authority is deemed to be a political subdivision of the State of
Georgia and a public corporation, which Authority has been duly
activated and organized and its members are now performing their
duties and are serving in the furtherance of the purpose for which
the Authority was created; and
WHEREAS, the Authority is authorized to undertake the
acquisition, construction, remodeling, altering, renovating,
equipping, maintaining, and operating of buildings, both private
and public, and the usual and convenient facilities appertaining to
such undertakings and extension and improvement of such buildings;
the acquisition of parking facilities or parking areas in
connection therewith; the construction, reconstruction, alteration,
changing and closing of streets, roads, and alleys; the acquisition
of the necessary property therefor, both real and personal; and the
lease and sale of any part or all of such buildings, including real
and personal property, so as to assure the efficient and proper
development, maintenance and operation of such buildings, streets,
roads and alleys deemed by the Authority to be necessary,
convenient or desirable in connection therewith; and
WHEREAS, the Authority is authorized to issue bonds for the
purpose of refunding any revenue bonds issued under the provisions
of the Authority Act and then outstanding, together with accrued
interest thereon and premium, if any; and
WHEREAS, the City of Smyrna (the "City") and the Authority,
after an investigation and study of the current capital needs and
the desirability for the redevelopment of the downtown Smyrna area,
have heretofore determined that there was an urgent need for
certain capital improvements to be made; and
WHEREAS, the City and the Authority determined that such
improvements and other undertakings should be accomplished in
accordance with, or substantially in accordance with, the report
entitled "Smyrna Master Plan; Phase I: Community Center and
Library, Project No. 88190," dated September, 1989, prepared by
Sizemore Floyd Architects, Atlanta, Georgia, said report being
hereinafter referred to as the "Capital Improvement Program"; and
WHEREAS, the Authority heretofore determined that the best
method of raising the moneys required to finance such undertaking
was by the issuance and sale of its revenue bonds for such purpose;
and
WHEREAS, to finance a portion of the cost of the undertaking,
the Authority heretofore authorized, pursuant to that certain bond
resolution adopted September 5, 1989, as supplemented by a
resolution adopted November 8, 1989 (the "Original Resolution") the
issuance of, and actually issued and delivered, $6,430,000
aggregate principal amount of its Revenue Bonds, Series 1989, dated
November 1, 1989 (the "Series 1989 Bonds") in the form of fully
registered bonds without coupons, transferable to subsequent owners
as therein provided, bearing interest from date at the rate per
annum set forth below opposite each principal maturity, all
interest payable August 1, 1990 and semiannually thereafter on the
1st days of February and August in each year, and the principal
maturing on the 1st day of February, in the years and amounts, as
follows:
62247.1 - 2 -
Year
1993
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
Amount
$ 50,000
120,000
125,000
135,000
145,000
150,000
165,000
175,000
185,000
200,000
215,000
230,000
Rate
6.25%
6.30
6.35
6.40
6.45
6.50
6.55
6.60
6.65
6.70
6.75
6.80
Year Amount
2005 $ 245,000
2006
265,000
2007
285,000
2008
305,000
2009
330,000
2010
355,000
2016
2,750,000
,j
Rate
6.85 %
6.90
7.00
7.00
7.00
7.00
7.125
of which Series 1989 Bonds there is now outstanding $6,380,000 and
said Series 1989 Bonds have as security for the payment thereof and
interest thereon certain revenues of the Authority to be received
pursuant to the Original Lease (hereinafter defined); and
WHEREAS, all of the facilities acquired, constructed and
equipped pursuant to the Capital Improvements Program (the "Leased
Facilities") were leased to the City of Smyrna (the "City")
pursuant to a Lease Contract, dated as of September 1, 1989,
between the Authority and the City (the "Original Lease") and the
City agreed to operate and maintain the Leased Facilities financed
with the proceeds of the Series 1989 Bonds and any additional bonds
ranking on a parity with the Series 1989 Bonds; and
WHEREAS, the Original Lease obligated the City to make Basic
Lease Payments (hereinafter defined) in an amount sufficient to
enable the Authority to pay principal of and interest on the Series
1989 Bonds as same become due and payable and the City agreed in
the Original Lease to exercise its power of taxation to the extent
necessary to make such Basic Lease Payments; and
WHEREAS, to finance the remaining portion of the improvements
and undertakings set forth in the Capital Improvement Program, the
Authority authorized pursuant to that certain bond resolution
adopted February 5, 1990, as supplemented and amended by
resolutions adopted March 22, 1990 and April 2, 1990 (the 111990
Resolution") the issuance of, and actually issued and delivered,
$8,690,000 aggregate principal amount of its Revenue Bonds, Series
1990, dated February 1, 1990 (the "Series 1990 Bonds") in the form
of fully registered bonds without coupons, transferable to
subsequent owners as.therein provided, bearing interest from date
at the rate per annum set forth below opposite each principal
maturity, all interest payable August 1, 1990 and semiannually
thereafter on the 1st day of February and August in each year, and
the principal maturing on the 1st day of February, in the years and
amounts as follows:
62247.1 - 3 -
Year
Amount
Rate
Year
Amount
Rate
1992
$ 30,000
6.10%
2001
$ 255,000
7.10 %
1993
95,000
6.25
2002
275,000
7.10
1994
165,000
6.35
2003
290,000
7.10
1995
175,000
6.45
2004
315,000
7.10
1996
185,000
6.55
2005
335,000
7.15
1997
195,000
6.65
2006
360,000
7.20
1998
210,000
6.75
2007
385,000
7.20
1999
225,000
6.85
2010
1,320,000
7.25
2000
240,000
6.95
2016
3,635,000
7.375
of which Series 1990 Bonds there is now outstanding $8,565,000 and
said Series 1990 Bonds, together with the Series 1989 Bonds, have
as security for the payment thereof and interest thereon certain
revenues of the Authority to be received pursuant to the 1990 Lease
(hereinafter defined); and
WHEREAS, as provided in the Original Resolution, the Original
Lease was amended to reflect the issuance of the Series 1990 Bonds
and the increase in the Basic Lease Payments necessitated thereby,
all as provided in that certain Amended and Restated Lease
Contract, dated as of September 1, 1989, between the Authority and
the City (the 111990 Lease"); and
WHEREAS, the Authority has received a recommendation from Lex
Jolley & Co., Inc., Atlanta, Georgia (the "Purchaser") that, due to
present market conditions, it is advisable, feasible and in the
best interest of the Authority that the outstanding Series 1989
Bonds maturing in the years 2007 through 2016, inclusive, in the
aggregate principal amount of $4,025,000 (the "Refunded Series 1989
Bonds") and the outstanding Series 1990 Bonds maturing in the years
2004 through 2016, inclusive, in the aggregate principal amount of
$6,350,000 (the "Refunded Series 1990 Bonds" and, together with the
Refunded Series 1989 Bonds, the "Refunded Bonds") be refunded at
this time in order to effect a savings in the debt service
requirements on the Authority's Refunded Bonds; and the Authority
has determined, after its own independent study and investigation,
that it is in its best interest to refund the Refunded Bonds as
aforesaid; and
WHEREAS, upon the further recommendation of the Purchaser,
with which the Authority concurs, it has been determined that the
refunding of the Refunded Bonds should be accomplished by making
due and legal provision for: (i) the payment of the interest on
the Refunded Series 1989 Bonds to February 1, 1999 as the same
becomes due and payable, and the redemption on February 1, 1999 of
the Refunded Series 1989 Bonds at 102 percent of the principal
amount thereof plus accrued interest to the redemption date and
(ii) the payment of the interest on the Refunded Series 1990 Bonds
to February 1, 1999 as the same becomes due and payable, and the
redemption on February 1, 1999 of the Refunded Series 1990 Bonds at
62247.1 - 4 -
it
1i Z,
102 percent of the principal amount thereof plus accrued interest
to the redemption date; and
WHEREAS, after said refunding there will be $2,355,000
aggregate principal amount of Series 1989 Bonds outstanding under
the Original Resolution as ratified, reaffirmed, broadened and
extended by the 1990 Resolution and this resolution (the
"Outstanding Series 1989 Bonds") and there will be $2,215,000
aggregate principal amount of Series 1990 Bonds outstanding under
the Original Resolution as ratified, reaffirmed, broadened and
extended by the 1990 Resolution and this resolution (the
"Outstanding Series 1990 Bonds"); and
WHEREAS, to accomplish the foregoing objectives and purposes,
the Authority proposes to issue its Revenue Refunding Bonds, Series
1993 hereinafter described; and
WHEREAS, it was provided in Section 11 of the 1990 Resolution
(ratifying, broadening and extending Article V, Section 4 of the
Original Resolution) that additional revenue bonds or obligations
could be issued, from time to time, ranking as to lien on the Basic
Lease Payments on a parity with the Series 1989 Bonds and the
Series 1990 Bonds, upon meeting certain terms and conditions, which
are, in part, as follows:
(a) None of the Series 1989 Bonds, the Series 1990
Bonds or any Additional Bonds are in default as to
principal and interest; the Authority is in compliance
with the terms and conditions of the Original Resolution,
as same has been ratified, reaffirmed, broadened and
extended by the 1990 Resolution and the City is in
compliance with the [1990] Lease.
(b) The payments covenanted to be made into the
Sinking Fund must be currently being made in the full
amount as required.
(c) The [1990] Lease shall have been amended to
reflect the issuance of the Additional Bonds and the
increase in the Basic Lease Payments necessitated
thereby.
(d) The Authority shall pass proper proceedings
reciting that all of the above requirements have been
met, shall authorize the issuance of the Additional Bonds
and shall provide in such proceedings, among others, the
date such Additional Bonds shall bear, the rate or rates
of interest, maturity dates and redemption provisions, as
well as the provisions for registration. The interest on
the Additional Bonds of any such issue shall fall due on
February 1 and August 1 of each year, and the principal
shall mature in installments on February 1, but, as to
62247.1 - 5 -
1 �7
principal, not necessarily in each year or in equal
installments. The proceedings for such Additional Bonds
may contain additional covenants with respect to the
maintenance and operation of the Leased Facilities and
additional restrictions on the issuance of Additional
Bonds, which covenants and restrictions shall, so long
as, but only so long as, such Additional Bonds remain
outstanding be for the benefit of any other Bonds secured
by the Resolution. Any such proceeding or proceedings
shall ratify and reaffirm, by reference, all of the
applicable terms, conditions and provisions of this
resolution.
; and
WHEREAS, as required by the Original Resolution, as ratified,
reaffirmed, broadened and extended by the 1990 Resolution
(collectively, the "Prior Resolutions"), the Authority will execute
and deliver a Second Amended and Restated Lease Contract, dated as
of September 1, 1989, with the City (the "Lease") which will
reflect the issuance of the proposed Series 1993 Bonds and the
change in the Basic Lease Payments necessitated thereby; and
WHEREAS, prior to the actual issuance and delivery of the
Series 1993 Bonds hereinafter authorized to be issued, the
Authority will enter into a contract with First Union National Bank
of Georgia, Charlotte, North Carolina, pursuant to which it will
agree to act as Paying Agent and as Bond Registrar for the Series
1993 Bonds hereinafter authorized to be issued and to perform
various functions with respect to the bonds, including, but not
limited to, the authentication of the bonds of this issue by the
manual signature of a duly authorized signatory of said Bank, as
Bond Registrar, the registration, transfer, exchange and related
mechanical and clerical functions, as well as the preparation,
signing and issuance of checks or drafts in payment of the
principal of and interest on the Series 1993 Bonds as same become
due and payable either at maturity or by proceedings for mandatory
redemption; and
WHEREAS, in order to provide for future additions, extensions
and improvements to the Leased Facilities or refunding of bonds
issued pursuant to the Original Resolution as ratified, reaffirmed,
broadened and extended, provision should hereinafter be made for
the issuance of additional revenue bonds for such purposes, such
bonds to stand on a parity with and be of equal dignity as to lien
on the revenues of the Authority with the Outstanding Series 1989
Bonds, the Outstanding Series 1990 Bonds and the Series 1993 Bonds
hereinafter authorized to be issued; and
WHEREAS, the Series 1989 Bonds and the Series 1990 Bonds are
the only revenue obligations of the Authority now outstanding
having as security for the payment thereof certain revenues of the
62247.1 - 6 -
h
1 �T
Authority to be received pursuant to the 1990 Lease, and the
Authority has been and is now complying in all respects with the
terms, provisions and covenants of the Prior Resolutions and is
maintaining the respective special funds therein created in the
full amount as required; and
WHEREAS, upon the provision being made for the payment of the
Refunded Bonds, same will no longer be outstanding and no longer
constitute a lien against the revenues received by the Authority
pursuant to the 1990 Lease; however, the terms, conditions,
provisions and covenants of the Prior Resolutions will be brought
forward, ratified, reaffirmed, broadened and extended by this
resolution and made applicable to the Series 1993 Bonds as though
the Series 1993 Bonds had been issued simultaneously under
authority of the Prior Resolutions and the Authority will continue
to comply in all respects with the applicable terms, covenants and
provisions of the Prior Resolution so long as the Outstanding
Series 1989 Bonds, the Outstanding Series 1990 Bonds and the Series
1993 Bonds and any parity bonds therewith are outstanding and
unpaid or until provision has been duly made for the payment
thereof; and
WHEREAS, the Authority will apply the proceeds received from
the sale of the Series 1993 Bonds, less accrued interest and
amounts to be used to pay costs of issuance, to the purchase of
certain direct obligations of the United States of America to be
held pursuant to an Escrow Deposit Agreement, dated the date of the
issuance and delivery of the Series 1993 Bonds, between the
Authority and Bank South, N.A. (the "Escrow Agent"), the Paying
Agent for both the Series 1989 Bonds and the Series 1990 Bonds, as
Escrow Agent (the "Escrow Agreement"); and the principal of and
interest on said direct obligations will be sufficient to pay the
interest on and redemption price of the Refunded Bonds.
NOW, THEREFORE, BE IT RESOLVED, by the Downtown Smyrna
Development Authority, and it is hereby resolved by authority of
the same, as follows:
1. The Authority shall enter into that certain Second Amended
and Restated Lease Contract, dated as of September 1, 1989, which
Lease, having been read and carefully considered, be and the same
is hereby approved and the Chairman be and is hereby authorized and
directed to execute the Lease for and on behalf of the Authority
and the Secretary and Treasurer be and is hereby authorized and
directed to attest same and impress the official seal of the
Authority thereon and the Lease shall be in substantially the form
which is on file and of record in the Minute Book of the Authority
kept in the office of the Secretary and Treasurer of the Authority,
and by this reference thereto, the Lease is incorporated herein and
made a part hereof, subject to such minor changes, insertions or
omissions as may be required to accomplish the undertaking
contemplated by the parties thereto and as same may be approved by
62247.1 -7 -
4
the Chairman and the execution of the Lease by the officers of the
Authority as herein authorized shall be conclusive evidence of such
approval.
2. $4,025,000 aggregate principal amount of Downtown Smyrna
Development Authority Revenue Bonds, Series 1989, maturing on and
after February 1, 2007, shall be refunded by payment and redemption
on February 1, 1999 and shall be called for redemption on February
1, 1999; and the owners of said bonds so called for redemption
shall present same for payment on February 1, 1999 and receive the
principal amount thereof, the redemption premium payable thereon
and all interest then due thereon to February 1, 1999.
3. $6,350,000 aggregate principal amount of Downtown Smyrna
Development Authority Revenue Bonds, Series 1990, maturing on and
after February 1, 2004 (which includes $315,000 aggregate principal
amount of Series 1990 Bonds maturing February 1, 2004 and all
Series 1990 Bonds maturing after said date), shall be refunded by
payment and redemption on February 1, 1999 and shall be called for
redemption on February 1, 1999; and the owners of said bonds so
called for redemption shall present same for payment on February 1,
1999 and receive the principal amount thereof, the redemption
premium payable thereon and all interest then due thereon to
February 1, 1999.
4. The Authority shall enter into the Escrow Agreement on the
date of the issuance and delivery of the Series 1993 Bonds herein
authorized to be issued and effect the transactions contemplated
thereby. The Escrow Agreement and the transactions described
therein are hereby authorized and approved. The Chairman is hereby
authorized and directed to execute the Escrow Agreement for and on
behalf of the Authority and the Secretary and Treasurer is hereby
authorized and directed to attest same and impress thereon the
official seal of the Authority, subject to such terms as may be
required to effect the refunding of the Refunded Bonds as aforesaid
and as same may be approved by the Chairman. The execution of the
Escrow Agreement by the officers of the Authority as herein
authorized shall be conclusive of any such approval and a copy of
the Escrow Agreement shall be placed in the Authority's Minute
Books..
5. Simultaneously with the issuance and delivery of the
Series 1993 Bonds herein authorized to be issued, the proceeds
derived from the sale thereof less amounts needed to pay cost of
issuance, shall, together with the sinking fund accruals applicable
to the Refunded Bonds, if any, be deposited with the Escrow Agent
under the Escrow Agreement to pay the cost of establishing a cash
balance and acquiring the obligations of the United States of
America which shall be deposited in trust with the Escrow Agent
under the Escrow Agreement and to pay expenses incident to the
refunding of the Refunded Bonds. The cash and direct obligations
so deposited with the Escrow Agent and the income derived therefrom
62247.1 -8 -
are hereby pledged to the payment of the Refunded Bonds and shall
be subject, and are hereby subject, to a lien and charge in favor
of the owners of the Refunded Bonds and shall be held for the
security of such owners until disbursed as hereinafter and in the
Escrow Agreement provided.
6. The principal of and income derived from said cash balance
and direct obligations so deposited in trust with the Escrow Agent
as received have been calculated as being sufficient, and shall be
used and applied to refund all of the Refunded Bonds by making the
payments on the dates and in the amounts set forth in the Escrow
Agreement as hereinabove described.
7. A notice of call for redemption of the Refunded Series
1989 Bonds signed by the Chairman and attested by the Secretary and
Treasurer of the Authority, designating the redemption date and the
bonds to be redeemed, shall be mailed by the Escrow Agent, postage
prepaid, to all registered owners of bonds to be redeemed whose
addresses shall appear upon the books of registration pertaining to
said Refunded Series 1989 Bonds and such notices of call for
redemption shall be mailed not less than 30 days prior to the
redemption date (February 1, 1999) which notice shall be in
substantially the following form:
62247.1 9 -
0
NOTICE OF CALL FOR REDEMPTION
DOWNTOWN SMYRNA DEVELOPMENT AUTHORITY
REVENUE BONDS, SERIES 1989
DATED NOVEMBER 1, 1989
NOTICE is hereby given to the owners of the following
described Downtown Smyrna Development Authority Revenue Bonds, that
said bonds maturing in the years 2007 through 2016, inclusive, have
been called for redemption on February 1, 1999, said bonds being in
the aggregate principal amount of $4,025,000 known as "Downtown
Smyrna Development Authority Revenue Bonds, Series 1989," dated
November 1, 1989, bearing interest from date at the rate per annum
set forth below opposite the principal maturity, all interest
payable on the 1st days of February and August in each year, and
the principal maturing on the date and in the amount, as follows:
Date
Amount
Rate Cusip No.
February
1,
2007
$ 285,000
7.00%
February
1,
2008
305,000
7.00
February
1,
2009
330,000
7.00
February
1,
2010
355,000
7.00
February
1,
2016
2,750,000
7.125% 2611747AU0
Funds for the redemption and payment of said bonds and the
interest due thereon on February 1, 1999 and for the required
redemption premium (2 percent) will be available at Bank South,
N.A., Atlanta, Georgia, on February 1, 1999 and said above -
described bonds should be presented to said bank for redemption and
payment on said date. Interest on the above -described bonds
designated for redemption shall cease to accrue on and after the
February 1, 1999 redemption date.
This notice is given under and pursuant to a resolution of the
Downtown Smyrna Development Authority adopted on the lith day of
March, 1993.
DOWNTOWN SMYRNA DEVELOPMENT AUTHORITY
(S E A L)
/s/
Chairman
Attest:
/ s/
Secretary and Treasurer
62247.1 -10 -
8. A notice of call for redemption of the Refunded Series
1990 Bonds signed by the Chairman and attested by the Secretary and
Treasurer of the Authority, designating the redemption date and the
bonds to be redeemed, shall be mailed by the Escrow Agent, postage
prepaid, to all registered owners of bonds to be redeemed whose
addresses shall appear upon the books of registration pertaining to
said Refunded Series 1990 Bonds and such notices of call for
redemption shall be mailed not less than 30 days prior to the
redemption date (February 1, 1999) which notice shall be in
substantially the following form:
62247.1 -11-
NOTICE OF CALL FOR REDEMPTION
DOWNTOWN SMYRNA DEVELOPMENT AUTHORITY
REVENUE BONDS, SERIES 1990
DATED FEBRUARY 1, 1990
NOTICE is hereby given to the owners of the following
described Downtown Smyrna Development Authority Revenue Bonds, that
said bonds maturing in the year 2004 through 2016, inclusive, have
been called for redemption on February 1, 1999, said bonds being in
the aggregate principal amount of $6,350,000 known as "Downtown
Smyrna Development Authority Revenue Bonds, Series 1990," dated
February 1, 1990, bearing interest from date at the rate per annum
set forth below opposite each principal maturity, all interest
payable semiannually on the 1st days of February and August in each
year, and the principal maturing on the 1st day of February, in the
years and amounts, as follows:
Date
Amount
Rate
Cusip No.
2004
$ 315,000
7.10
2005
335,000
7.15
2006
$ 360,000
7.20%
2611747BK1
2007
385,000
7.20
2611747BL9
2010
1,320,000
7.25
2611747BP0
2016
3,635,000
7.375
2611747BQ8
2611747BR6 (Insured Bonds)
Funds for the redemption and payment of said bonds and the
interest due thereon on February 1, 1999 and for the required
redemption premium (2 percent) will be available at Bank South,
N.A., Atlanta, Georgia, on February 1, 1999 and said above -
described bonds should be presented to said bank for redemption and
payment on said date. Interest on the above -described bonds
designated for redemption shall cease to accrue on and after the
February 1, 1999 redemption date.
This notice is given under and pursuant to a resolution of the
Downtown Smyrna Development Authority adopted on the 11th day of
March, 1993.
DOWNTOWN SMYRNA DEVELOPMENT AUTHORITY
(S E A L)
/s/
Chairman
Attest:
Secretary and Treasurer
62247.1 -12 -
BE IT FURTHER RESOLVED by the authority aforesaid, and it is
hereby resolved by the authority of the same, that for the purpose
of this resolution the definitions set forth in the Prior
Resolutions shall be and are hereby supplemented and amended
effective as of the date of issuance and delivery of the Series
1993 Bonds herein authorized to be issued, as follows:
IlAdditional Bonds" shall mean any revenue bonds of the
Authority ranking on a parity with the Outstanding Series 1989
Bonds, the Outstanding Series 1990 Bonds and the Series 1993 Bonds
which may hereafter be issued pursuant to the Resolution.
"Basic Lease Paymentli means the aggregate amount equal to the
principal of and interest on the Bonds coming due on the next
succeeding February 1 and the interest on the Bonds coming due on
the next succeeding August 1 in each year; provided, however, the
Lessee shall receive a credit against any Basic Lease Payment to
the extent moneys are on deposit in the Sinking Fund and not
previously credited to a Basic Lease Payment. In addition to the
foregoing, each Basic Lease Payment shall include the charges as
billed specified in subparagraphs (e), (f) and (g), of Section 3,
Article V of the Original Resolution, as ratified, reaffirmed,
broadened and extended in Section 10 of the 1990 Resolution and
Section 14 of the 1993 Resolution, and any deficit in any preceding
Basic Lease Payment.
IlBonds" shall mean any revenue bonds authorized by and issued
pursuant to the Resolution, including the Outstanding Series 1989
Bonds, the Outstanding Series 1990 Bonds, the Series 1993 Bonds and
any Additional Bonds of the Authority issued pursuant to the
Resolution.
IlLeasell or "Contract" means the Second Amended and Restated
Lease Contract, dated as of September 1, 1989, by and between the
Authority and the City, as same from time to time may be amended or
restated.
111990 Resolutions, means that certain bond resolution of the
Authority adopted on February 5, 1990, as supplemented and amended
by resolutions adopted on March 22, 1990 and April 2, 1990,
authorizing the issuance of the Series 1990 Bonds.
111993 Resolution'l means that certain bond resolution adopted
March 11, 1993 authorizing the issuance of the Series 1993 Bonds.
110utstanding Series 1989 Bonds" means the Series 1989 Bonds
excluding the Refunded Series 1989 Bonds.
"Outstanding Series 1990 Bonds11 means the Series 1990 Bonds
excluding the Refunded Series 1990 Bonds.
62247.1 -13 -
a
"Prior Resolutions" means collectively the Original Resolution
and the 1990 Resolution.
I'Refunded Bonds" means collectively the Refunded Series 1989
Bonds and the Refunded Series 1990 Bonds.
('Refunded Series 1989 Bonds" means the Series 1989 Bonds
maturing in the years 2007 through 2016, inclusive, in the
aggregate principal amount of $4,025,000.
IlRefunded Series 1990 Bonds" means the Series 1990 Bonds
maturing in the years 2004 through 2016, inclusive, in the
aggregate principal amount of $6,350,000.
ItResolution't means the Original Resolution, as ratified,
reaffirmed, broadened and extended by the 1990 Resolution and the
1993 Resolution, and as same may hereafter be supplemented from
time to time.
"Series 1993 Bonds" means the $11,985,000 aggregate principal
amount of the Authority's Revenue Refunding Bonds, Series 1993
authorized to be issued pursuant to the 1993 Resolution.
"Sinking Fund" shall mean the Downtown Smyrna Development
Authority Sinking Fund created in Article V, Section 1 of the
Original Resolution, as ratified, reaffirmed, broadened and
extended by the 1990 Resolution and 1993 Resolution.
All of the other terms defined in of the Prior Resolutions,
unless the context shall clearly indicate another or different
meaning or intent, shall be construed or used and are intended to
have the same meaning as set forth therein and same are ratified
and reaffirmed and shall apply to the Series 1993 Bonds as if set
forth herein verbatim.
BE IT FURTHER RESOLVED by the Authority aforesaid, and it is
hereby resolved by authority of same, as follows:
Section 1. Authorization. All of the applicable terms,
provisions and conditions contained in Article V, Section 4 of the
Original Resolution and Section 11 of the 1990 Resolution having
been met and complied with and under the authority of the
Constitution of the State of Georgia, the Revenue Bond Law and the
Authority Act, there be, and there is hereby, authorized to be,
issued, pursuant to and in conformity with the Prior Resolutions,
revenue bonds in the aggregate principal amount of $11,985,000 for
the purpose of providing funds to be applied toward the cost of
advance refunding the Refunded Bonds and to pay all expenses
necessary to accomplish the foregoing.
The revenue bonds shall be designated "Downtown Smyrna
Development Authority Revenue Refunding Bonds, Series 1993," shall
62247.1 -14 -
be dated March 1, 1993, shall be in the form of fully registered
bonds without coupons, shall be transferable to subsequent owners
as hereinafter provided, shall be in the denomination of $5,000 or
any integral multiple thereof, shall be numbered from R-1 upwards,
shall bear interest from date at the rate per annum set forth
opposite each principal maturity, all interest payable August 1,
1993 and semiannually thereafter on the 1st days of February and
August in each year, and the principal shal•1 mature on the 1st day
of February, in the years and amounts, as follows:
Year
Amount
Rate
Year
Amount
Rate
1994
$ 75,000
2.70%
2003
$ 105,000
4.80%
1995
75,000
3.25
2004
420,000
4.90
1996
80,000
3.70
2005
435,000
5.00
1997
80,000
3.90
2006
460,000
5.00
1998
85,000
4.05
2007
765,000
5.10
1999
85,000
4.30
2008
800,000
5.25
2000
90,000
4.45
2012
3,680,000
5.50
2001
95,000
4.60
2016
4,555,000
5.50
2002
100,000
4.70
The principal of the Series 1993 Bonds shall be payable to the
registered owner thereof on the dates specified, unless redeemed
prior thereto as hereinafter provided, upon presentation and
surrender thereof at the principal corporate trust office of the
Paying Agent, and payments of interest on the Series 1993 Bonds
shall be made by check or draft payable to the registered owner as
shown on the bond registration book of the Authority kept by the
Bond Registrar at the close of business on the fifteenth day of the
calendar month next preceding each February 1 and August 1 interest
payment date and such interest payments shall be mailed to the
registered owner at the address shown on the bond registration
book. Both the principal of and interest on the Series 1993 Bonds
shall be payable in lawful money of the United States of America.
Section 2. Execution; Form of Series 1993 Bonds. The Series
1993 Bonds shall be executed on behalf of the Authority by use of
the facsimile signature of the Chairman and attested by the
facsimile signature of the Secretary and Treasurer of the Authority
and a facsimile of the official seal of the Authority shall be
imprinted thereon and the Series 1993 Bonds shall be authenticated
by the manual signature of a duly authorized officer of the Bond
Registrar. The Secretary and Treasurer be, and is hereby,
authorized to certify by the use of her facsimile signature as to
the authenticity of a true and correct copy of the text of the
legal opinion to be rendered by Sutherland, Asbill & Brennan, Bond
Counsel, which opinion will be printed on the Series 1993 Bonds.
The validation certificate to be printed on the Series 1993 Bonds
shall be executed by use of the facsimile signature of the Clerk of
the Superior Court of Cobb County and a facsimile of the official
62247.1 -15 -
seal of such Court shall be imprinted thereon. In case any officer
whose signature shall appear on the Series 1993 Bonds shall cease
to be such officer before delivery of the Series 1993 Bonds, such
signature shall nevertheless be valid and sufficient for all
purposes the same as if such officer had remained in office until
such delivery. The Series 1993 Bonds, the certificate of
authentication and registration, form of assignment and the
certificate of validation to be endorsed upon the Series 1993 Bonds
shall be in substantially the following forms, with such
variations, omissions and insertions as are required or permitted
by this resolution:
62247.1 -16 -
No. R-
INTEREST RATE:
S
UNITED STATES OF AMERICA
STATE OF GEORGIA
DOWNTOWN SMYRNA DEVELOPMENT AUTHORITY
REVENUE REFUNDING BOND
SERIES 1993
MATURITY DATE: BOND DATE: CUSIP:
March 1, 1993
FOR VALUE RECEIVED, Downtown Smyrna Development Authority (the
"Authority"), a body corporate and politic created by the Downtown
Smyrna Development Authority Act (Georgia Laws 1989, p. 4382 et
seq. , the "Authority Act") and as such deemed to be a political
subdivision of the State of Georgia and a public corporation
thereof, hereby promises to pay solely from the special fund
provided therefor, as hereinafter set forth, to
or registered assigns, the principal sum of
DOLLARS
in lawful money of the United States of America, on the date
specified above, unless redeemed prior thereto as hereinafter pro-
vided, upon presentation and surrender hereof at the principal
corporate trust office of First Union National Bank of Georgia,
Charlotte, North Carolina, Paying Agent and Bond Registrar, and to
pay to the registered owner hereof solely from the special fund
interest on the principal amount from date hereof or from the most
recent interest payment date to which interest has been paid, at
the rate per annum specified above, on August 1, 1993 and
semiannually thereafter on the 1st days of February and August in
each year (each an "Interest Payment Date"), until payment of the
principal amount hereof. Payments of interest on this bond shall
be made by check or draft payable to the registered owner as shown
on the bond registration book of the Authority kept by the Bond
Registrar at the close of business on the fifteenth day of the
calendar month next preceding each Interest Payment Date and such
interest payments shall be mailed to such registered owner at the
address shown on the bond registration book.
This bond is one of a duly authorized issue of Downtown Smyrna
Development Authority Revenue Refunding Bonds, Series 1993, in the
aggregate principal amount of $11,985,000, of like tenor, except as
to numbers, denominations, interest rates, dates of maturity and
redemption provisions (collectively, the "Series 1993 Bonds"),
issued for the purpose of advance refunding those certain Downtown
Smyrna Development Authority Revenue Bonds, Series 1989, maturing
in the years 2007 through 2016, inclusive, in the aggregate
principal amount of $4,025,000 (the "Refunded Series 1989 Bonds")
and those certain Downtown Smyrna Development Authority Revenue
62247.1 -17 -
Bonds, Series 1990, maturing in the years 2004 through 2016,
inclusive, in the aggregate principal amount of $6,350,000 (the
"Refunded Series 1990 Bonds" and, together with the Refunded Series
1989 Bonds, called collectively the "Refunded Bonds") and to pay
all expenses necessary to accomplish the foregoing. The Series
1993 Bonds are issued under authority of the Constitution of the
State of Georgia, the Revenue Bond Law (Title 36, Chapter 82,
Article 3 of the Official Code of Georgia Annotated, as amended)
and the Authority Act and were duly authorized by a resolution of
the Authority adopted on September 5, 1989, as supplemented by a
resolution adopted November 8, 1989 (the "Original Resolution"), by
a resolution adopted February 5, 1990, as supplemented and amended
by resolutions adopted March 22, 1990 and April 2, 1990 (the 111990
Resolution") and by a resolution adopted March 11, 1993 (the 111993
Resolution" and, together with the Original Resolution and the 1990
Resolution, called collectively the "Resolution"). The Series 1993
Bonds rank on a parity as to the lien on the revenues of the
Authority derived from that certain Second Amended and Restated
Lease Contract, dated as of September 1, 1989 (the "Lease") by and
between the Authority and the City of Smyrna, with the Authority's
Revenue Bonds, Series 1989, heretofore issued pursuant to the
Original Resolution and outstanding after said refunding in the
aggregate principal amount of $2,355,000 (the "Series 1989 Bonds")
and the Authority's Revenue Bonds, Series 1990, heretofore issued
pursuant to the 1990 Resolution and outstanding after said
refunding in the aggregate principal amount of $2,215,000 (the
"Series 1990 Bonds"). In addition to the Outstanding Series 1989
Bonds, the Outstanding Series 1990 Bonds and the Series 1993 Bonds
(collectively the "Bonds"), the Authority may issue, under certain
terms and conditions as provided in the Resolution, additional
revenue bonds or obligations and if issued such additional bonds or
obligations will rank on a parity as to lien on the revenues of the
Authority derived under the Lease with the lien securing the
payment of the Bonds. Reference to the Resolution is hereby made
for a complete description of the fund charged with, and pledged
to, the payment of the principal of and the interest on the Bonds,
the nature and extent of the security therefor, a statement of
rights, duties and obligations of the Authority, the rights of the
owners of the Bonds, and the terms and provisions under which
additional revenue bonds or obligations may be issued, to all the
provisions of which the owner hereof, by the acceptance of this
bond, assents.
The terms and provisions of this bond and definitions of cer-
tain terms used herein are continued on the reverse side hereof and
such continued terms and provisions and definitions shall for all
purposes have the same effect as though fully set forth at this
place.
This bond shall not be valid or become obligatory for any
purpose or be entitled to any security or benefit under the
Resolution until this bond shall have been authenticated and
62247.1 -18 -
registered upon the bond registration book of the Authority kept
for that purpose by the Bond Registrar, which authentication and
registration shall be evidenced by the execution by the manual
signature of a duly authorized signatory of the Bond Registrar of
the certificate hereon.
IN WITNESS WHEREOF, Downtown Smyrna Development Authority has
caused this bond to be executed by use of the facsimile signature
of its Chairman and a facsimile of its official seal to be
imprinted hereon and attested by use of the facsimile signature of
its Secretary and Treasurer, as of the 1st day of March, 1993.
(S E A L)
Attest:
Secretary and Treasurer
DOWNTOWN SMYRNA DEVELOPMENT
AUTHORITY
By:
Chairman
DATE OF AUTHENTICATION AND REGISTRATION:
CERTIFICATE OF AUTHENTICATION AND REGISTRATION
This bond is one of the Series 1993 Bonds described in the
resolution of March 11, 1993.
FIRST UNION NATIONAL BANK OF GEORGIA,
as Bond Registrar
By:
Authorized Signatory
62247.1 -19 -
VALIDATION CERTIFICATE
STATE OF GEORGIA )
COUNTY OF COBB )
The undersigned Clerk of the Superior Court of Cobb County,
State of Georgia, HEREBY CERTIFIES that this bond was validated and
confirmed by judgment of the Superior Court of Cobb County,
Georgia, on the day of , 1993, and that no
intervention or objection was filed in the proceedings validating
same and that no appeal from said judgment of validation has been
taken.
WITNESS my facsimile signature and seal of the Superior Court
of Cobb County, Georgia.
(S E A L)
Clerk, Superior Court,
Cobb County, Georgia
***********
62247.1 -2 0-
[THE FOLLOWING SHALL BE PRINTED ON THE BACK OF EACH SERIES 1993
BOND]
This bond is transferable only upon the bond registration book
kept for that purpose at the principal corporate trust office of
the Bond Registrar by the registered owner hereof in person, or by
attorney duly authorized in writing, upon the surrender and
presentation to the Bond Registrar of this bond duly endorsed for
transfer or accompanied by an assignment duly executed by the
registered owner or his attorney duly authorized in writing, and
thereupon a new registered bond, in the same aggregate principal
amount and of the same maturity, shall be issued to the transferee
in exchange therefor.
The Series 1993 Bonds are issuable in the form of fully reg-
istered bonds in the denomination of $5,000 or any integral mul-
tiple thereof and are exchangeable at the principal corporate trust
office of the Bond Registrar in the manner, subject to the
conditions and upon payment of charges, if any, provided in the
1993 Resolution.
The Authority and City of Smyrna (the "City") have entered
into the Lease, under which the Authority has leased certain Leased
Facilities (as defined in the Lease) to the City for a term
extending through February 2, 2016 or if at said time and on said
date all of the Bonds and any additional bonds issued on a parity
therewith have not been paid in full, then on such date as such
payment shall have been made, but in no event in excess of 50 years
from the date thereof. In consideration thereof the City has obli-
gated itself to make Basic Lease Payments to the Authority in
amounts sufficient to enable the Authority to pay the principal of
and interest on the Bonds and any additional bonds or obligations
hereafter issued by the Authority on a parity therewith as same
become due and payable.
Under the terms of the Lease and the Resolution, the City and
the Authority have agreed that the Basic Lease Payments shall be
paid by the City directly to the Sinking Fund Custodian designated
in the Resolution for the account of the Authority and deposited
into the special fund created in the Original Resolution and
designated "Downtown Smyrna Development Authority Sinking Fund."
The revenues of the Authority representing the Basic Lease Payments
from the City as provided in said Lease have been pledged under the
Resolution to the payment of the principal of and interest on the
Bonds and any parity bonds hereafter issued pursuant to the
Resolution.
This bond shall not be deemed to constitute a debt of the
State of Georgia or the City of Smyrna, nor a pledge of the faith
and credit of said State or City, nor shall the State or City be
subject to any pecuniary liability hereon. This bond shall not be
payable from nor a charge upon any funds other than the revenues
62247.1 -21-
i
pledged to the payment hereof, and is payable solely from the
special fund provided therefor from the revenues of the Authority
derived under the Lease. No owner of this bond shall ever have the
right to enforce payment hereof against any property of the
Authority, nor shall this bond constitute a charge, lien or
encumbrance, legal or equitable, upon any property of the
Authority. The issuance of this bond shall not directly,
indirectly or contingently obligate said State or said City to levy
or to pledge any form of taxation whatever therefor or to make any
appropriation for its payment except for the obligation of the City
to make the Basic Lease Payments to the Authority.
The Series 1993 Bonds may be redeemed prior to their
respective maturities, either in whole or in part on any interest
payment date at the option of the Authority, in any year not
earlier than February 1, 2003, from any moneys which may be made
available for such purpose as provided in the 1993 Resolution.
Such redemption may be made upon payment of the principal amount
thereof and accrued interest thereon to date of redemption,
together with a premium of 2 percent of such principal amount if
redeemed on or prior to August 1, 2003; 1 percent of such principal
amount if redeemed thereafter and on or prior to August 1, 2004;
and at par without a premium if redeemed thereafter and before
maturity. If less than a full maturity of the Series 1993 Bonds
are called for redemption, the particular Series 1993 Bonds of such
maturity shall be selected by lot or in such other manner as may be
designated by the Bond Registrar.
The Series 1993 Bonds maturing in the year 2012 shall be
subject to mandatory redemption prior to maturity on February 1,
2009, and on each succeeding February 1 to and including February
1, 2011, in part, by lot in such manner as may be designated by the
Bond Registrar, at par plus accrued interest to the redemption
date, in the following principal amounts on February 1, in the
years as follows:
Year
Amount
2009
$850,000
2010
895,000
2011
940,000
Additionally, the Series 1993 Bonds maturing in the year 2016
shall be subject to mandatory redemption prior to maturity on
February 1, 2013, and on each succeeding February 1 to and
including February 1, 2015, in part, by lot in such manner as may
be designated by the Bond Registrar, at par plus accrued interest
to the redemption date, in the following principal amounts on
February 1, in the years as follows:
62247.1 -2 2 -
Year
Amount
2013
$1,050,000
2014
1,110,000
2015
1,165,000
Notice designating the Series 1993 Bonds (or the portion of
the principal amount of the Series 1993 Bonds in multiples of
$5,000) to be acquired by redemption, as aforesaid, shall be
mailed, postage prepaid, not less than 30 days prior to the
redemption date, to all registered owners of the Series 1993 Bonds
to be redeemed in whole or in part at the addresses which appear in
the bond registration book as of the date of such notice, but
failure so to mail any such notice shall not affect the validity of
the proceedings for such redemption or cause the interest to accrue
on the principal amount of the Series 1993 Bonds so designated for
redemption after the redemption date.
To the extent and in the manner permitted by the Resolution,
modifications, alterations, amendments, additions and recisions of
the provisions of the Resolution, or of any resolution supplemental
thereto or of the Bonds, may be made by the Authority with the
consent of the owners of at least 65 percent of the principal
amount of the obligations then outstanding, including any parity
obligations therewith then outstanding, and without the necessity
for notation hereon of reference thereto.
This bond is issued with the intent that the laws of the State
of Georgia shall govern its construction. In case of default, the
owner of this bond shall be entitled to the remedies provided by
the Resolution, the Revenue Bond Law of the State of Georgia and
any amendments thereto and the Authority Act.
It is hereby recited and certified that all acts, conditions
and things required to be done precedent to and in the issuance of
this bond have been done, have happened and have been performed in
due and legal form as required by law, that provision has been made
for the allocation from the anticipated revenues of the Authority
of amounts sufficient to pay the principal of and the interest on
all of the Bonds as same become due and payable and that such
revenues are irrevocably allocated and pledged to the payment
thereof and the interest thereon.
[Secretary's Certificate and Legal Opinion To Be Provided]
62247.1 - 2 3 -
r � ,
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
please print or typewrite name and address
[Insert Tax Identification or Social Security Number]
including postal zip code of assignee
the within bond and all rights thereunder, hereby constituting and
appointing attorney to transfer
this bond on the bond registration books kept for such purpose by
the Bond Registrar, with full power of substitution in the
premises.
DATED
Signature Guaranteed
Notice: This signature to this
assignment must correspond with the name
as it appears upon the face of the within
bond in every particular, without
alteration or enlargement or any change
whatever.
62247.1 -2 4 -
Section 3. Required Authentication; Proof of Ownership. only
those Series 1993 Bonds which shall have endorsed thereon a
certificate of authentication and registration substantially in the
form hereinbefore set forth, duly executed by the manual signature
of an authorized signatory of the Bond Registrar, shall be entitled
to any benefit or security under this resolution and such
certificate upon any of such bonds when duly executed shall be
conclusive evidence that such bond has been duly authenticated,
registered and delivered. It shall not be necessary that the same
authorized signatory of the Bond Registrar sign the certificate of
authentication and registration on all of the Series 1993 Bonds
that may be issued hereunder at any one time. The person in whose
name any Series 1993 Bond shall be registered shall be deemed and
regarded as the absolute owner thereof for all purposes and the
payment of the principal amount, interest and premium, if any,
shall be made only to or upon the order of the registered owner
thereof. All such payments shall be valid and effectual to satisfy
and discharge the liability upon such bond, including redemption
premium, if any, and the interest thereon to the extent of the sums
so paid.
Section 4. Bond Registrar; Transfer and Exchange. The Bond
Registrar shall keep the bond registration book of the Authority
for the registration of the Series 1993 Bonds and for the
registration of transfers of the Series 1993 Bonds as herein
provided. The transfer of any Series 1993 Bond shall be registered
upon the bond registration book upon the surrender and presentation
of the Series 1993 Bond to the Bond Registrar duly endorsed for
transfer or accompanied by an assignment duly executed by the
registered owner or attorney duly authorized in writing in such
form as shall be satisfactory to the Bond Registrar. Upon any such
registration of transfer, the Bond Registrar shall authenticate and
deliver in exchange for such Series 1993 Bond or Series 1993 Bonds
so surrendered, a new Series 1993 Bond or Series 1993 Bonds
registered in the name of the transferee, of any denomination or
denominations authorized by this resolution, and in an aggregate
principal amount equal to the aggregate principal amount of the
Series 1993 Bonds so surrendered and of the same maturity. Any
Series 1993 Bond, upon presentation and surrender thereof to the
Bond Registrar, together with an assignment duly executed by the
registered owner or duly authorized attorney, in such form as may
be satisfactory to the Bond Registrar, may be exchanged, at the
option of the registered owner, for an aggregate principal amount
of Series 1993 Bonds of the same maturity equal to the principal
amount of the Series 1993 Bond so surrendered and of any authorized
denomination or denominations. The Bond Registrar may make a
charge for every exchange or registration of transfer of the Series
1993 Bonds sufficient to reimburse it for any tax or other
governmental charge required to be paid with respect to such
exchange or registration of transfer, but no other charge shall be
made to the owner for the privilege of exchanging or registering
the transfer of Series 1993 Bonds under this resolution.
62247.1 -2 rJ-
Section 5. Lost, Destroyed, Mutilated Bonds. If any of the
Series 1993 Bonds shall become mutilated, the Bond Registrar in its
discretion and at the expense of the owner of such bond shall
authenticate and deliver a new bond of like tenor registered in the
name of the owner in exchange and substitution for such mutilated
bond. If any bond shall become lost, destroyed or wrongfully
taken, evidence of such loss, destruction or wrongful taking within
a reasonable time thereafter may be submitted to the Authority and
if such evidence shall be satisfactory and indemnity of a character
and in an amount satisfactory to the Authority shall be given, then
the Authority shall at the expense of the owner cause a new bond of
like tenor registered in the name of the owner to be authenticated
by the Bond Registrar and delivered to the registered owner.
Section 6. Blank Bonds. The Authority shall make all
necessary and proper provisions for the transfer and exchange of
the Series 1993 Bonds by the Bond Registrar and the Authority shall
deliver or cause to be delivered to the Bond Registrar a sufficient
quantity of blank Series 1993 Bonds duly executed on behalf of the
Authority, together with the certificate of validation pertaining
thereto duly executed by the Clerk of the Superior Court of Cobb
County, as herein provided in order that the Bond Registrar shall
at all times be able to register and authenticate the Series 1993
Bonds at the earliest practicable time in accordance with the
provisions of this resolution. All Series 1993 Bonds surrendered
in any such exchange or registration of transfer shall be forthwith
cancelled by the Bond Registrar and a record thereof duly entered
in the permanent records pertaining to the Series 1993 Bonds
maintained by the Bond Registrar.
Section 7. No Preference of Priority. The Series 1993 Bonds
shall stand on a parity and shall be of equal dignity with the
Outstanding Series 1989 Bonds heretofore issued in the original
principal amount of $6,430,000 pursuant to the Original Resolution
and the Outstanding Series 1990 Bonds heretofore issued in the
original principal amount of $8,690,000 pursuant to the 1990
Resolution and shall be secured by the lien created on the revenues
of the Authority pursuant to the Prior Resolutions as the same are
ratified, reaffirmed, broadened and extended by this resolution,
just as if said Outstanding Series 1989 Bonds, Outstanding Series
1990 Bonds and Series 1993 Bonds had been issued simultaneously
under the same resolution.
Section S. Redemption of Series 1993 Bonds. The Series 1993
Bonds may be redeemed at the option of the Authority in whole or in
part on any interest payment date, in any year not earlier than
February 1, 2003, from any moneys which may be available for such
purpose and deposited with the Paying Agent on or before the date
fixed for redemption. The optional redemption of Series 1993 Bonds
shall be made by the payment of the principal amount of the Series
1993 Bonds to be redeemed and accrued interest thereon to date of
redemption, together with a premium of 2 percent of such principal
62247.1 -2 6-
amount if redeemed on or prior to August 1, 2003; 1 percent of such
principal amount if redeemed thereafter and on or prior to August
1, 2004; and at par without a premium if redeemed thereafter and
before maturity. If less than a full maturity of the Series 1993
Bonds are called for redemption, the particular Series 1993 Bonds
of such maturity shall be selected by lot or in such other manner
as may be designated by the Bond Registrar.
The Series 1993 Bonds maturing in the year 2012 shall be
subject to mandatory redemption prior to maturity on February 1,
2009, and on each succeeding February 1 to and including February
1, 2011, in part, by lot in such manner as may be designated by the
Bond Registrar, at par plus accrued interest to the redemption
date, in the following principal amounts on February 1, in the
years as follows:
Year
Amount
2009
$850,000
2010
895,000
2011
940,000
Additionally, the Series 1993 Bonds maturing in the year 2016
shall be subject to mandatory redemption prior to maturity on
February 1, 2013, and on each succeeding February 1 to and
including February 1, 2015, in part, by lot in such manner as may
be designated by the Bond Registrar, at par plus accrued interest
to the redemption date, in the following principal amounts on
February 1, in the years as follows:
Year
Amount
2013
$1,050,000
2014
1,110,000
2015
1,165,000
Section 9. Procedure and Notice of Redemption. If less than
all of the Series 1993 Bonds of a single maturity are to be
redeemed, the Bond Registrar shall treat any bond of such maturity
outstanding in a denomination of greater than $5,000 principal
amount as two or more separate Series 1993 Bonds in the
denomination of $5,000 each and shall assign separate numbers to
each for the purpose of determining the Series 1993 Bonds or the
portion of such Series 1993 Bonds in a denomination greater than
$5,000 to be redeemed by lot. With respect to any Series 1993 Bond
called for partial redemption, the registered owner thereof shall
surrender such bond to the Bond Registrar in exchange for one or
more Series 1993 Bonds in the denomination of $5,000 principal
amount or any integral multiple thereof in the aggregate equal to
the unredeemed principal amount of such bond so surrendered. The
Bond Registrar shall furnish the Authority on or before the forty-
fifth day next preceding each optional redemption date if such
option is exercised with its certificate setting forth the Series
62247.1 - 2 7 -
1993 Bonds that have been selected for optional redemption, either
in whole or in part on such date. Not less than 30 days before any
date upon which any such redemption is to be made a notice of
redemption signed by a duly authorized signatory of the Bond
Registrar on behalf of the Authority designating the Series 1993
Bonds to be redeemed (in whole or in part) shall be mailed, postage
prepaid, to all registered owners of the Series 1993 Bonds to be
redeemed (in whole or in part) at addresses which appear upon the
bond registration book as of the date of giving such notice. It is
expressly provided, however, that the failure so to mail any such
notice of the optional redemption of the Series 1993 Bonds shall
not affect the validity of the proceedings for such redemption or
cause the interest to continue to accrue on the principal amount of
the Series 1993 Bonds so designated for redemption after the
redemption date.
Section 10. Purchase in Open Market. Nothing herein
contained shall be construed to limit the right of the Authority to
purchase with any excess moneys in the Sinking Fund (i.e., moneys
not needed in the then current Sinking Fund Year to pay principal
of and interest on the Bonds or credited against a Basic Lease
Payment) and for sinking fund purposes, the Series 1993 Bonds in
the open market at a price not exceeding the callable price. Any
such Series 1993 Bonds so purchased cannot be reissued and shall be
cancelled.
Section 11. Effect of Call for Redemption. Notice having
been given in the manner and under the conditions hereinabove
provided, the Series 1993 Bonds so designated for redemption shall,
on the redemption date designated in such notice, become and be due
and payable at the redemption price hereinabove specified, and from
and after the date of redemption so designated, unless default
shall be made in the payment of the Series 1993 Bonds so designated
for redemption, interest on the Series 1993 Bonds so designated for
redemption shall cease to accrue after the redemption date.
Section 12. Application of Series 1993 Bond Proceeds. From
the proceeds derived from the sale of the Series 1993 Bonds,
including accrued interest to date of delivery, the following
payments shall be made, simultaneously with the issuance and
delivery of the Series 1993 Bonds, to the extent and in the manner
herein set forth:
(a) The accrued interest received on the Series 1993
Bonds shall be deposited into the Sinking Fund to be used and
applied toward the payment of the interest on the Series 1993
Bonds coming due on August 1, 1993.
(b) The sum of $11,608,327.94 or such other amount of
said proceeds as may be necessary, together with sinking fund
accruals, if any, shall be deposited with Bank South, N.A.,
the Paying Agent for the Refunded Bonds, and shall be used and
62247.1 -2 8 -
applied by said Bank toward the cost of refunding by
redemption, payment or otherwise the Refunded Bonds and to pay
certain expenses incident thereto, all pursuant to the terms
of the Escrow Deposit Agreement with said Bank, as Escrow
Agent.
(c) The balance of the proceeds shall be retained by the
original purchaser of the Series 1993 Bonds and applied to the
payment of the expenses incurred in connection with the
issuance of the Series 1993 Bonds.
Section 13. Sinking Fund. The Authority covenants that it
will continue to maintain the special fund designated as "Downtown
Smyrna Development Authority Sinking Fund" created in Section 1 of
Article V of the Original Resolution. The Sinking Fund shall be
kept as a separate trust account with the Sinking Fund Custodian
separate from other deposits of the Authority.
Section 14. Basic Lease Payments. All Basic Lease Payments
shall be deposited into the Sinking Fund for the purpose of paying
the principal of and interest on the Bonds as same become due and
payable, either at maturity or by proceedings for mandatory
redemption, and the other charges permitted to be paid pursuant to
Section 3 of Article V of said Original Resolution, as same is
ratified, reaffirmed, broadened and extended by Section 10 of the
1990 Resolution and by this resolution.
Section 15. Pledge of Revenues. As provided in the Prior
Resolutions, the Basic Lease Payments received by the Authority
immediately become subject to a lien to secure the payment by the
Authority of the debt service on the Bonds and all amounts therein
and herein agreed to be paid and the Authority hereby ratifies and
reaffirms the pledge of such revenues and hereby covenants and
agrees that the revenues received by it shall in like manner be and
are hereby pledged to secure the payment by the Authority of the
amounts herein agreed to be paid and the lien of this pledge shall
be valid and binding against it and against all parties having
claims of any kind against it, whether such claims shall have
arisen in contract, tort or otherwise and irrespective of whether
or not such parties have notice hereof.
Section 16. Sinking Fund Custodian. Smyrna Bank and Trust
Co., Smyrna, Georgia, is hereby redesignated as Sinking Fund
Custodian and shall maintain and hold the Sinking Fund in trust for
the owners of the Bonds pursuant to the provisions of the Prior
Resolutions as hereby ratified, reaffirmed, broadened and extended.
62247.1 -2 9 -
Section 17. Additional Bonds. The Authority covenants and
agrees that it will not exercise the privilege provided in Article
V, Section 4 of the Original Resolution or Section 11 of the 1990
Resolution of issuing Additional Bonds ranking as to lien on the
Basic Lease Payments or the Lease on a parity with the Bonds unless
or until all of the following conditions are met:
(a) None of the Bonds or any Additional Bonds are in
default as to principal and interest; the Authority is in
compliance with the terms and conditions of the Prior
Resolutions, as same have been ratified, reaffirmed, broadened
and extended by this resolution; and the City is in compliance
with the Lease.
(b) The payments covenanted to be made into the Sinking
Fund must be currently being made in the full amount as
required.
(c) The Lease shall have been amended to reflect the
issuance of Additional Bonds and the increase in the Basic
Lease Payments necessitated thereby.
(d) The Authority shall pass proper proceedings reciting
that all of the above requirements have been met, shall
authorize the issuance of the Additional Bonds and shall
provide in such proceedings, among others, the date such
Additional Bonds shall bear, the rate or rates of interest,
maturity dates and redemption provisions, as well as the
provisions for registration. The interest on the Additional
Bonds of any such issue shall fall due on February 1 and
August 1 of each year, and the principal shall mature in
installments on February 1, but, as to principal, not
necessarily in each year or in equal installments. The
proceedings for such Additional Bonds may contain additional
covenants with respect to the maintenance and operation of the
Leased Facilities and additional restrictions on the issuance
of Additional Bonds, which covenants and restrictions shall,
so long as, but only so long as, such Additional Bonds remain
outstanding be for the benefit of any other Bonds secured by
the Resolution. Any such proceeding or proceedings shall
ratify and reaffirm, by reference, all of the applicable
terms, conditions and provisions of the Resolution.
(e) The Authority shall furnish the City with a duly
certified copy of the resolution authorizing the issuance of
such Additional Bonds and the City, acting by and through its
Mayor and Council, shall acknowledge receipt of the certified
copy of said resolution and retain same in its permanent
records.
62247. 1 -3 0-
- .i
(f) Such Additional Bonds and all proceedings relative
thereto, and the security therefor, shall be validated as
prescribed by law.
Section 18. Other Provisions Applicable to Series 1993 Bonds.
All of the other terms, covenants, conditions and provisions of
Article V of the Original Resolution, together with the applicable
terms, covenants, conditions and provisions of Article VI, Article
VII, Article VIII and Article IX and each Section and covenant
thereof as broadened and extended by the 1990 Resolution not herein
specifically referred to are hereby declared applicable to and are
broadened and extended so as to cover the Series 1993 Bonds and any
Additional Bonds therewith and are hereby ratified and reaffirmed
as so broadened and extended and are hereby adopted and shall for
all purposes apply to the Series 1993 Bonds as if said bonds had
been originally issued under authority of the Prior Resolutions
simultaneously with the Series 1989 Bonds and Series 1990 Bonds.
Section 19. Non -Arbitrage Covenant. The Authority hereby
covenants and agrees that it will not, subsequent to the date of
the issuance and delivery of the Series 1993 Bonds, intentionally
use any portion of the proceeds of the Series 1993 Bonds to acquire
higher yielding investments, or to replace funds which were used
directly or indirectly to acquire higher yielding investments,
except as may otherwise be permitted by Section 148 of the Internal
Revenue Code of 1986, as amended (the "Code") or the regulations
promulgated thereunder, including, but not limited to, complying
with the requirements of Section 148(f) of the Code and the
regulations promulgated thereunder and the payment of rebate, if
any, required to be made, and that it will expend the proceeds of
the Series 1990 Bonds in compliance with the applicable provisions
of Sections 141 to 149, inclusive, of the Code. Anything herein or
in the Prior Resolutions notwithstanding, earnings on amounts in
any fund or account may, and shall to the extent necessary, be used
to make the payments required under this Section 19.
Section 20. Non -Arbitrage Certificate. The Chairman and
Secretary and Treasurer of the Authority are authorized and
directed to execute, for and on behalf of the Authority, a
certification based upon facts, estimates and circumstances, as to
the reasonable expectations regarding the amount, expenditure and
use of the proceeds of the Series 1993 Bonds, as well as such other
documents (including, without limitation, elections under Section
148 of the Code) as may be necessary or advisable in connection
with the issuance and delivery of the Series 1993 Bonds.
Section 21. Use of Proceeds. The Series 1993 Bonds are being
issued by the Authority in compliance with the conditions necessary
for interest income on the Series 1993 Bonds to be excluded from
gross income for federal income tax purposes pursuant to the
provisions of Section 103(a) of the Code relating to obligations of
the State or political subdivision thereof. It is the intention of
62247.1 - 31-
, ' A
the Authority that the interest on the Series 1993 Bonds be and
remain excludable from gross income for federal income tax
purposes, and, to that end, the Authority hereby covenants with the
owners of the Series 1993 Bonds as follows:
(a) that it will not take any action, or fail to take
any action, if any such action or failure to take action would
adversely affect the tax exempt status of interest on the
Series 1993 Bonds under Section 103 of the Code; and
(b) that they will not directly or indirectly use or
permit the use of any proceeds of the Series 1993 Bonds or any
other funds of the Authority or take or omit to take any
action that would cause the Series 1993 Bonds to be "arbitrage
bonds" within the meaning of Section 148 of the Code. To that
end, the Authority will comply with all requirements of
Section 148 of the Code to the extent applicable to the Series
1992 Bonds.
In the event that at any time the Authority is of the opinion
that for purposes of this Section it is necessary to restrict or
limit the yield on the investment of any moneys held under this
resolution, the Authority shall take such action as may be
necessary.
Section 22. Lease Contract. The Authority does hereby
approve and accept the terms of the Second Amended and Restated
Lease Contract, dated as of September 1, 1989, entered into between
it and the City, and agrees to take all action from time to time as
may be necessary to effectively carry out the purpose and intention
covered by the overall undertaking.
Section 23. Further Authorization. The Chairman and the
Secretary and Treasurer of the Authority are hereby authorized and
directed to execute, for and on behalf of the Authority, such other
agreements, certificates or documents as may be necessary in
connection with the issuance, sale and delivery of the Series 1993
Bonds.
Section 24. Offering Documents and Bond Purchase Agreement.
The Authority hereby ratifies the distribution of that certain
Preliminary Official Statement, dated March 8, 1993, with respect
to the Series 1993 Bonds. The preparation and distribution of a
final Official Statement with respect to the Series 1993 Bonds in
substantially the same form as said Preliminary Official Statement
but containing the information included in this resolution is
hereby authorized and approved. An officer of the Authority is
authorized to execute such final Official Statement of behalf of
the Authority. The execution and delivery of the Bond Purchase
Agreement, dated March 11, 1993, by and among the Authority, the
62247.1 - 3 2 -
M
City and Lex Jolley & Co., Inc., in the form presented at the
meeting at which this resolution is adopted and recorded in the
Minute Book of Authority is hereby authorized and approved.
Section 25. Contract with Bondowners. The provisions of this
resolution shall constitute a contract by and between the
Authority, the City and the owners of the Prior Bonds and the
Series 1993 Bonds authorized to be issued hereunder and the owners
of any Additional Bonds subsequently issued by the Authority, and
after the issuance of the Series 1993 Bonds, this resolution shall
not be repealed or amended in any respect which will adversely
affect the rights and interest of the owners of the Bonds of any of
said issues, nor shall the Authority pass any proceedings in any
way adversely affecting the rights of such owners or issuers, so
long as any of the Bonds authorized by the Prior Resolutions and
this resolution, or the interest thereon, shall remain unpaid;
provided, however, that this covenant shall not be construed as
prohibiting modifications hereof or amendments hereto to the extent
and in the manner as provided in Article IX of the Original
Resolution, as ratified, reaffirmed, broadened and extended by the
1990 Resolution and this resolution.
Any subsequent proceedings authorizing the issuance of
Additional Bonds issued by the Authority as provided in the
Resolution shall in nowise conflict with the terms and conditions
of the Resolution, but shall, for all legal purposes, reaffirm all
of the applicable covenants, agreements and provisions of the
Resolution for the equal protection and benefit of all bondowners.
Section 26. Validation. The Series 1993 Bonds herein
authorized shall be validated in the manner provided by law, and to
that end notice of the adoption of this resolution and a copy
thereof shall be served upon the District Attorney of the Cobb
Judicial Circuit, in order that proceedings for the above purpose
be instituted in the Superior Court of Cobb County.
Section 27. No Conflicts. Any and all resolutions or parts
of resolutions in conflict with this resolution this day adopted be
and the same are hereby repealed, and this resolution shall be in
full force and effect from and after its adoption.
62247.1 - 3 3 -
i
I
SECOND AMENDED AND RESTATED
LEASE CONTRACT
between
DOWNTOWN SMYRNA DEVELOPMENT AUTHORITY
and
CITY OF SMYRNA
Dated as of September 1, 1989
TABLE OF CONTENTS
ARTICLE I.
DEFINITIONS
"Additional Bonds" . . . . . . . . . . . . . . . . . .
. 7
"Authority" . . . . . . . . . . . . . . . . . . . . .
. 7
"Authority Act" . . . . . . . . . . . . . . . . . . .
. 7
"Basic Lease Payments" . . . . . . . . . . . . . . . .
. 7
"Bondowner" and "bondowner" . . . . . . . . . . . . .
. 7
"Bonds" . . . . . . . . . . . . . . . . . . . . . . .
. 7
"Capital Improvement Program" . . . . . . . . . . . .
. 7
"City" or "Lessee" . . . . . . . . . . . . . . . . . .
. 7
"Fiscal Year" . . . . . . . . . . . . . . . . . . . .
. 8
"Lease" or "Contract" . . . . . . . . . . . . . . . .
. 8
"Lease Term" . . . . . . . . . . . . . . . . . . . . .
. 8
"Leased Facilities" . . . . . . . . . . . . . . . . .
. 8
111990 Resolution" . . . . . . . . . . . . . . . . . .
. 8
111993 Resolution" . . . . . . . . . . . . . . . . . .
. 8
"Original Resolution" . . . . . . . . . . . . . . . .
. 8
"Outstanding Series 1989 Bonds" . . . . . . . . . . .
. 8
"Outstanding Series 1990 Bonds" . . . . . . . . . . .
. 8
"Permitted Encumbrances" . . . . . . . . . . . . . . .
. 8
"Permitted Investments" . . . . . . . . . . . . . . .
. 8
"Project Fund" . . . . . . . . . . . . . . . . . . .
. 9
"Project Fund Depository" . . . . . . . . . . . . . .
. 10
"Refunded Bonds" . . . . . . . . . . . . . . . . . . .
. 10
"Refunded Series 1989 Bonds" . . . . . . . . . . . . .
. 10
"Refunded Series 1990 Bonds" . . . . . . . . . . . . .
. 10
"Resolution" . . . . . . . . . . . . . . . . . . . . . .
. 10
"Revenue Bond Law" . . . . . . . . . . . . . . . . .
. 10
"Series 1989 Bonds" . . . . . . . . . . . . . . . . .
. 10
"Series 1990 Bonds" . . . . . . . . . . . . . . . . .
. 10
"Series 1993 Bonds" . . . . . . . . . . . . . . . . .
. 10
"Sinking Fund" . . . . . . . . . . . . . . . . . . .
. 10
"Sinking Fund Custodian" . . . . . . . . . . . . . .
. 10
"Sinking Fund Year" . . . . . . . . . . . . . . . . .
. 10
ARTICLE II.
REPRESENTATIONS
Section 2.1. Representations by the Authority . . .
. 11
Section 2.2. Representations and Agreements by the
Lessee. . . . . . . . . . . . . . . .
. 11
ARTICLE III.
LEASING; ISSUANCE OF BONDS;
PROCEEDS;
COMMENCEMENT AND COMPLETION OF
THE PROJECTS
Section
3.1.
Leasing . . . . . . .
. . . . . . . . . .
13
Section
3.2.
Agreement to Issue the
Bonds; Applica-
tion of Bond Proceeds
. . . . . . . . . .
13
Section
3.3.
Project Fund Moneys .
. . . . . . . . . .
13
Section
3.4.
Agreement to Acquire and Construct the
Projects . . .
Section
3.5.
In Event Project Fund
Insufficient . . .
16
61996.1 i
Section
3.6.
Investment of Project Fund Moneys
Permitted . . . . . . . . . . . . . . . .
16
ARTICLE IV.
EFFECTIVE
DATE OF THIS LEASE; DURATION
OF LEASE
TERM; RENTAL PROVISIONS; FLOW OF FUNDS
Section
4.1.
Effective Date of this Lease; Duration
of Lease Term . . . . . . . . . . . .
16
Section
4.2.
Delivery and Acceptance of Possession . .
17
Section
4.3.
Basic Lease Payments . . . . . . . . . .
17
Section
4.4.
Operating Expenses . . . . . . . . . . .
17
Section
4.5.
Optional Prepayment of Rent; Redemption
of Bonds . . .
Section
4.6.
Obligations of Lessee Hereunder Absolute
and Unconditional . . . . . . . . . . . .
18
Section
4.7.
Tax Levy to Pay Basic Lease Payments
19
ARTICLE V
SPECIAL COVENANTS OF CITY
Section
5.1.
Rules and Regulations . . . . . . . . . .
20
Section
5.2.
Contracting Procedure . . . . . . . . . .
20
Section
5.3.
Liens . . . . . . . . . . . . . . . . . .
20
Section
5.4.
Insurance . . . . . . . . . . . . . . . .
20
Section
5.5.
Sale of Assets . . . . . . . . . . . . .
21
Section
5.6.
Arbitrage . . . . . . . . . .
21
ARTICLE VI.
SPECIAL COVENANTS OF AUTHORITY AND CITY
Section
6.1.
No Warranty of Condition or Suitability
by the Authority . . . . . . . . .
22
Section
6.2.
Inspection of the Leased Facilities . . .
22
Section
6.3.
Granting of Easements; Sale . . . . . . .
22
Section
6.4.
Further Assurances and Corrective
Instruments, Recordings and Filings . . .
23
Section
6.5.
Release Covenants . . . . . . . . . . . .
23
ARTICLE VII.
EVENTS OF DEFAULT AND REMEDIES
Section
7.1.
Events of Default Defined . . . . . . .
. 23
Section
7.2.
Remedies on Default . . . . . . . . . .
. 24
Section
7.3.
No Remedy Exclusive . . . . . . . . . .
. 25
Section
7.4.
Agreement to Pay Attorneys' Fees and
Expenses. . . . . . . . . . . . . . .
. 25
Section
7.5.
No Additional Waiver Implied by One
Waiver. . . . . . . . . . . . . .
. 25
ARTICLE VIII
OPTION OF LESSEE
Section 8.1. Ungualified Option to Purchase . . . . . 25
Section 8.2. Purchase Price . . . .
Section 8.3. Procedure For Exercising Option to
Purchase . . . . . . . . . . . . . . . . 26
61996.1 i i
ARTICLE IX.
MISCELLANEOUS
Section
9.1.
Notices . . . . . . . . . . . . . . . .
. 26
Section
9.2.
Binding Effect . . . . . . . . . . . .
. 26
Section
9.3.
Severability . . . . . . . . . .
. 26
Section
9.4.
Amounts Remaining in Sinking Fund . . .
. 26
Section
9.5.
Amendments, Changes and Modifications .
. 26
Section
9.6.
Execution Counterparts . . . . . . . .
. 27
Section
9.7.
Captions . . . . . . . . . . .
. 27
Section
9.8.
Law Governing Project of Lease . . . .
. 27
Section
9.9.
Redemption of Bonds . . . . . . . . . .
. 27
Section
9.10.
Net Lease . . . . . . . . . . . . . . .
. 27
Section
9.11.
Operating Contracts . . . . . . . . . .
. 27
61996.1 i i i
SECOND AMENDED AND RESTATED
LEASE CONTRACT
THIS SECOND AMENDED AND RESTATED LEASE CONTRACT is entered
into as of September 1, 1989, by and between the DOWNTOWN SMYRNA
DEVELOPMENT AUTHORITY (the "Authority"), a body corporate and
politic and deemed to be a political subdivision and public
corporation of the State of Georgia created and existing under the
Constitution of the State of Georgia, as Lessor, and the CITY OF
SMYRNA (the "Lessee" or the "City"), a political subdivision of the
State of Georgia, as Lessee.
W I T N E S S E T H:
In consideration of the respective representations and
covenants hereinafter contained, the Authority and the Lessee agree
as follows:
WHEREAS, pursuant to an amendment to Article VII, Section VII,
Paragraph I of the Constitution of the State of Georgia of 1945
(Georgia Laws 1970, p. 1117 et seq.) and now specifically continued
pursuant to an Act of the General Assembly (Georgia Laws 1986, p.
3957 et seq.) as a part of the Constitution of the State of Georgia
of 1986, and under the provisions of Georgia Laws 1989, p. 4382 et
seq., known as the "Downtown Smyrna Development Authority Act" (the
"Authority Act") there was created a body corporate and politic,
designated as the "Downtown Smyrna Development Authority"
(hereinafter sometimes referred to as the "Authority") and the
Authority is deemed to be a political subdivision of the State of
Georgia and a public corporation, which Authority has been duly
activated and organized and its members are now performing their
duties and are serving in the furtherance of the purpose for which
the Authority was created; and
WHEREAS, the City of Smyrna (the "City") is a public body
corporate and politic and a municipal corporation duly organized
and validly existing under the laws of the State of Georgia; and
WHEREAS, the Authority is authorized to undertake the
acquisition, construction, remodeling, altering, renovating,
equipping, maintaining, and operating of buildings, both private
and public, and the usual and convenient facilities appertaining to
such undertakings and extension and improvement of such buildings;
the acquisition of parking facilities or parking areas in
connection therewith; the construction, reconstruction, alteration,
changing and closing of streets, roads, and alleys; the acquisition
of the necessary property therefor, both real and personal; and the
lease and sale of any part or all of such buildings, including real
and personal property, so as to assure the efficient and proper
development, maintenance and operation of such buildings, streets,
61996.1
roads and alleys deemed by the Authority to be necessary,
convenient or desirable in connection therewith; and
WHEREAS, the Authority is authorized to issue bonds for the
purpose of refunding any revenue bonds issued under the provisions
of the Authority Act and then outstanding, together with accrued
interest thereon and premium, if any; and
WHEREAS, the City and the Authority, after an investigation
and study of the current capital needs and the desirability for the
redevelopment of the downtown Smyrna area, have heretofore
determined that there was an urgent need for certain capital
improvements to be made; and
WHEREAS, the City and the Authority determined that such
improvements and other undertakings should be accomplished in
accordance with, or substantially in accordance with, the report
entitled "Smyrna Master Plan; Phase I: Community Center and
Library, Project No. 88190," dated September, 1989, prepared by
Sizemore Floyd Architects, Atlanta, Georgia, said report being
hereinafter referred to as the "Capital Improvement Program"; and
WHEREAS, the Authority heretofore determined that the best
method of raising the moneys required to finance such undertaking
s was by the issuance and sale of its revenue bonds for such purpose;
and
WHEREAS, to finance a portion of the cost of the undertaking,
the Authority heretofore authorized, pursuant to that certain bond
resolution adopted September 5, 1989, as supplemented by a
resolution adopted November 8, 1989 (the "Original Resolution") the
issuance of, and actually issued and delivered, $6,430,000
aggregate principal amount of its Revenue Bonds, Series 1989, dated
November 1, 1989 (the "Series 1989 Bonds") in the form of fully
registered bonds without coupons, transferable to subsequent owners
as therein provided, bearing interest from date at the rate per
annum set forth below opposite each principal maturity, all
interest payable August 1, 1990 and semiannually thereafter on the
1st days of February and August in each year, and the principal
maturing on the 1st day of February, in the years and amounts, as
follows:
61996.1 2
Year
1993
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
Amount
$ 50,000
120,000
125,000
135,000
145,000
150,000
165,000
175,000
185,000
200,000
215,000
230,000
Rate
6.25%
6.30
6.35
6.40
6.45
6.50
6.55
6.60
6.65
6.70
6.75
6.80
Year
2005
2006
2007
2008
2009
2010
2016
Amount
$ 245,000
265,000
285,000
305,000
330,000
355,000
2,750,000
Rate
6.85 %
6.90
7.00
7.00
7.00
7.00
7.125
of which Series 1989 Bonds there is now outstanding $6,380,000 and
said Series 1989 Bonds have as security for the payment thereof and
interest thereon certain revenues of the Authority to be received
pursuant to the Original Lease (hereinafter defined); and
WHEREAS, all of the facilities acquired, constructed and
equipped pursuant to the Capital Improvements Program (the "Leased
Facilities") were leased to the City pursuant to a Lease Contract,
dated as of September 1, 1989, between the Authority and the City
(the "Original Lease") and the City agreed to operate and maintain
the Leased Facilities financed with the proceeds of the Series 1989
Bonds and any additional bonds ranking on a parity with the Series
1989 Bonds; and
WHEREAS, the Original Lease obligated the City to make Basic
Lease Payments (hereinafter defined) in an amount sufficient to
enable the Authority to pay principal of and interest on the Series
1989 Bonds as same become due and payable and the City agreed in
the Original Lease to exercise its power of taxation to the extent
necessary to make such Basic Lease Payments; and
WHEREAS, to finance the remaining portion of the improvements
and undertakings set forth in the Capital Improvement Program, the
Authority authorized pursuant to that certain bond resolution
adopted February 5, 1990, as supplemented and amended by
resolutions adopted March 22, 1990 and April 2, 1990 (the 111990
Resolution") the issuance of, and actually issued and delivered,
$8,690,000 aggregate principal amount of its Revenue Bonds, Series
1990, dated February 1; 1990 (the "Series 1990 Bonds") in the form
of fully registered bonds without coupons, transferable to
subsequent owners as therein provided, bearing interest from date
at the rate per annum set forth below opposite each principal
maturity, all interest payable August 1, 1990 and semiannually
thereafter on the 1st day of February and August in each year, and
the principal maturing on the 1st day of February, in the years and
amounts as follows:
61996.1 3
Year Amount
1992
$ 30,000
1993
95,000
1994
165,000
1995
175,000
1996
185,000
1997
195,000
1998
210,000
1999
225,000
2000
240,000
Rate
Year
Amount
Rate
6.10%
2001
$ 255,000
7.10 %
6.25
2002
275,000
7.10
6.35
2003
290,000
7.10
6.45
2004
315,000
7.10
6.55
2005
335,000
7.15
6.65
2006
360,000
7.20
6.75
2007
385,000
7.20
6.85
2010
1,320,000
7.25
6.95
2016
3,635,000
7.375
of which Series 1990 Bonds there is now outstanding $8,565,000 and
said Series 1990 Bonds, together with the Series 1989 Bonds, have
as security for the payment thereof and interest thereon certain
revenues of the Authority to be received pursuant to the 1990 Lease
(hereinafter defined); and
WHEREAS, as provided in the Original Resolution, the Original
Lease was amended to reflect the issuance of the Series 1990 Bonds
and the increase in the Basic Lease Payments necessitated thereby,
all as provided in that certain Amended and Restated Lease
Contract, dated as of September 1, 1989, between the Authority and
the City (the 111990 Lease"); and
WHEREAS, the Authority has received a recommendation from Lex
Jolley & Co., Inc., Atlanta, Georgia (the "Purchaser") that, due to
present market conditions, it is advisable, feasible and in the
best interest of the Authority that the outstanding Series 1989
Bonds maturing in the years 2007 through 2016, inclusive, in the
aggregate principal amount of $4,025,000 (the "Refunded Series 1989
Bonds") and the outstanding Series 1990 Bonds maturing in the years
2004 through 2016, inclusive, in the aggregate principal amount of
$6,350,000 (the "Refunded Series 1990 Bonds" and, together with the
Refunded Series 1989 Bonds, the "Refunded Bonds") be refunded at
this time in order to effect a savings in the debt service
requirements on the Authority's Refunded Bonds; and the Authority
has determined, after its own independent study and investigation,
that it is in its best interest to refund the Refunded Bonds as
aforesaid; and
WHEREAS, upon the further recommendation of the Purchaser,
with which the Authority concurs, it has been determined that the
refunding of the Refunded Bonds should be accomplished by making
due and legal provision for: (i) the payment of the interest on
the Refunded Series 1989 Bonds to February 1, 1999 as the same
becomes due and payable, and the redemption on February 1, 1999 of
the Refunded Series 1989 Bonds at 102 percent of the principal
amount thereof plus accrued interest to the redemption date and
(ii) the payment of the interest on the Refunded Series 1990 Bonds
to February 1, 1999 as the same becomes due and payable, and the
redemption on February 1, 1999 of the Refunded Series 1990 Bonds at
61996.1 4
102 percent of the principal amount thereof plus accrued interest
to the redemption date; and
WHEREAS, after said refunding there will be $2,355,000
aggregate principal amount of Series 1989 Bonds outstanding under
the Original Resolution (the "Outstanding Series 1989 Bonds") and
there will be $2,215,000 aggregate principal amount of Series 1990
Bonds outstanding under the 1990 Resolution (the "Outstanding
Series 1990 Bonds"); and
WHEREAS, to accomplish the foregoing objectives and purposes,
the Authority proposes to issue its Revenue Refunding Bonds, Series
1993 more fully described in the 1993 Resolution (hereinafter
defined) and the City has concurred in the Authority's
determination and has concluded that the refunding is in the best
interests of the City in that it will reduce the Basic Lease
Payments; and
WHEREAS, as required by the Original Resolution, as ratified,
reaffirmed, broadened and extended by the 1990 Resolution
(collectively, the "Prior Resolutions"), the Authority will execute
and deliver this Second Amended and Restated Lease Contract, dated
as of September 1, 1989, with the City (the "Lease") which will
reflect the issuance of the proposed Series 1993 Bonds and the
change in the Basic Lease Payments necessitated thereby; and
WHEREAS, the Series 1989 Bonds and the Series 1990 Bonds are
the only revenue obligations of the Authority now outstanding
having as security for the payment thereof certain revenues of the
Authority to be received pursuant to the 1990 Lease, and the
Authority has been and is now complying in all respects with the
terms, provisions and covenants of the Prior Resolutions and is
maintaining the respective special funds therein created in the
full amount as required; and
WHEREAS, upon the provision being made for the payment of the
Refunded Bonds, same will no longer be outstanding and no longer
constitute a lien against the revenues received by the Authority
pursuant to the 1990 Lease; however, the terms, conditions,
provisions and covenants of the Prior Resolutions will be brought
forward, ratified, reaffirmed, broadened and extended by this
resolution and made applicable to the Series 1993 Bonds as though
the Series 1993 Bonds had been issued simultaneously under
authority of the Prior Resolutions and the Authority will continue
to comply in all respects with the applicable terms, covenants and
provisions of the Prior Resolution so long as the Outstanding
Series 1989 Bonds, the Outstanding Series 1990 Bonds and the Series
1993 Bonds and any parity bonds therewith are outstanding and
unpaid or until provision has been duly made for the payment
thereof; and
WHEREAS, the Authority will apply the proceeds received from
the sale of the Series 1993 Bonds, less accrued interest and
61996.1 5
amounts to be used to pay costs of issuance, to the purchase of
certain direct obligations of the United States of America to be
held pursuant to an Escrow Deposit Agreement, dated the date of the
issuance and delivery of the Series 1993 Bonds, between the
Authority and Bank South, N.A., the Paying Agent for both the
Series 1989 Bonds and the Series 1990 Bonds, as Escrow Agent (the
"Escrow Agreement"); and the principal of and interest on said
direct obligations will be sufficient to pay the interest on and
redemption price of the Refunded Bonds; and
WHEREAS, in order to provide for the issuance of the Series
1993 Bonds, it is necessary for the Authority and the City to enter
into this Lease to reflect the issuance of the Series 1993 Bonds
and the defeasance of the Refunded Bonds; and
WHEREAS, Article IX, Section III, Paragraph I of the
Constitution of the State of Georgia of 1983 authorizes
intergovernmental contracts between any of. county,
municipality, school district or political subdivision of the state
. with each other or any other public agency, public
corporation, or public authority for joint services, for the
provision of services, or for joint or separate use of facilities
or equipment; but such contracts must deal with activities,
services and facilities which the contracting parties are
authorized by law to undertake or provide ."; and
WHEREAS, pursuant to the provisions of Article IX, Section II,
Paragraph III of the Constitution of the State of Georgia of 1983,
municipalities are empowered to provide parks, recreational areas,
programs and facilities, libraries, archives, and arts and sciences
programs and facilities and, therefore, the City is authorized to
provide such facilities and to levy taxes to provide such
facilities; and
WHEREAS, pursuant to Section 6(14) of the Authority Act, the
Authority is authorized to execute contracts and other instruments
necessary or convenient to exercise its powers, including, but not
limited to, contracts for construction of projects, leases of
projects, contracts for sale of projects, and contracts with
respect to use of projects; and
WHEREAS, pursuant to Section 6(21) of the Authority Act, the
Authority is authorized to contract for any period not exceeding 50
years with the State of Georgia, state institutions or any
municipality, county or political subdivision of the State; and
NOW, THEREFORE, in consideration of the premises and
undertakings as hereinafter set forth, it is agreed by the
Authority and the City, each acting by and through its duly
authorized officers, pursuant to resolutions duly adopted and
properly passed, and in consideration of the respective
considerations and contracts hereinafter contained, the Authority
and the City agree as follows:
61996.1 6
ARTICLE I.
DEFINITIONS
In addition to the words and terms elsewhere defined in this
Second Amended and Restated Lease Contract, the following words and
terms as used in this Second Amended and Restated Lease Contract
shall have the following meanings unless the context or use
indicates another or different meaning or intent and such
definitions shall be equally applicable to both the singular and
plural forms of the words and terms herein defined:
IvAdditional Bonds" means any of the Authority's revenue bonds
ranking on a parity with the Outstanding Series 1989 Bonds, the
Outstanding Series 1990 Bonds and the Series 1993 Bonds which may
hereafter be issued pursuant to the Resolution.
I'Authorityll shall mean the Downtown Smyrna Development
Authority, its successors and assigns.
"Authority Act" shall mean Georgia Laws 1989, p. 4382 et seq.
"Basic Lease Paymentsty means an amount equal to the principal
of and the interest on the Bonds coming due on the next succeeding
February 1 and an amount equal to the interest on the Bonds coming
due on the next succeeding August 1 in each year; provided,
however, the Lessee shall receive a credit against any Basic Lease
Payment to the extent moneys are on deposit in the Sinking Fund and
not previously credited to a Basic Lease Payment. In addition to
the foregoing, each Basic Lease Payment shall include the charges
as billed specified in subparagraphs (e), (f) and (g) of Section 3,
Article V of the Original Resolution as broadened and extended by
the 1990 Resolution and 1993 Resolution and any deficit in any
preceding Basic Lease Payment.
"Bondowner" and Ilbondownerll means the registered owner of any
of the outstanding Bonds.
N'Bonds" shall mean any revenue bonds authorized by and issued
pursuant to the Resolution, including the Outstanding Series 1989
Bonds, the Outstanding Series 1990 Bonds, the Series 1993 Bonds and
any Additional Bonds of the Authority issued pursuant to the
Resolution.
"Capital Improvement Programll shall mean the Smyrna Master
Plan, Phase I: Community Center and Library Project No. 88190,
dated September, 1989, prepared by Sizemore Floyd Architects,
Atlanta, Georgia, for the Lessee and the Authority.
$'City'@ or "Lessee" means the City of Smyrna, its successors
and assigns.
61996.1 7
"Fiscal Year" means the fiscal year for the City as may be
designated by appropriate proceedings of the City.
"Lease" or "Contract" means this Second Amended and Restated
Lease Contract, as from time to time amended.
$'Lease Terms' shall have the meaning specified in Section 4.1
hereof.
"Leased Facilities" means the facilities and real property
financed with the proceeds of the Series 1989 Bonds, the Series
1990 Bonds and Additional Bonds issued by the Authority; including,
without limitation, all real property owned by the Authority and
located in Cobb County, Georgia.
111990 Resolutionve means that certain bond resolution of the
Authority adopted on February 5, 1990, as supplemented and amended
March 22, 1990 and April 2, 1990, authorizing the issuance of the
Series 1990 Bonds.
011993 Resolutions' means that certain bond resolution of the
Authority adopted March 11, 1993 authorizing the issuance of the
Series 1993 Bonds.
"Original Resolution', means that certain bond resolution of
the Authority adopted September 5, 1989, as supplemented November
8, 1989, authorizing the issuance of the Series 1989 Bonds.
"Outstanding Series 1989 Bonds" means the Series 1989 Bonds
excluding the Refunded Series 1989 Bonds.
"Outstanding Series 1990 Bonds" means the Series 1990 Bonds
excluding the Refunded Series 1990 Bonds.
"Permitted Encumbrances" means liens and encumbrances existing
on the date of acquisition by the Authority of any Leased
Facilities, excluding, however, any liens and encumbrances securing
any indebtedness for borrowed money.
"Permitted Investments" shall mean and include any of the
following securities, if and to the extent the same are at the time
legal for investment of Authority funds:
(i) any bonds or other obligations of the City of
Smyrna, Cobb County or bonds or obligations of the State of
Georgia or of other counties, municipal corporations and
political subdivisions of the State of Georgia which are rated
"A" or better by Moody's Investors Service or Standard &
Poor's Corporation;
(ii) any bonds or other obligations which as to principal
and interest constitute direct obligations of, or are
unconditionally guaranteed by, the United States of America,
61996.1 8
including obligations of any of the federal agencies set forth
in clause (iii) below to the extent unconditionally guaranteed
by the United States of America;
(iii) obligations of the Federal National Mortgage
Association, the Government National Mortgage Association, the
Federal Financing Bank, the Federal Intermediate Credit Banks,
Federal Banks for Cooperatives, Federal Home Loan Banks,
Farmers Home Administration and Federal Home Loan Mortgage
Association;
(iv) negotiable certificates of deposit issued by any
bank or trust company organized under the laws of any state of
the United States of America or any national banking
association, provided that such certificates of deposit must
be purchased directly from such bank, trust company or
national banking association and must be either (a) continu-
ously and fully insured by the Federal Deposit Insurance
Corporation, or (b) continuously and fully secured by such
securities as are described in clauses (ii) and (iii) above
which (1) have a market value (exclusive of accrued interest)
at all times at least equal to the principal amount of such
certificates of deposit, (2) are lodged with the particular
fund custodian or an agent acting solely on behalf of the
particular fund custodian, and (3) are subject to a security
interest in favor of the particular fund custodian and not
subject to any security interest in favor of any other person.
Additionally, the bank, trust company or national banking
association issuing each such certificate of deposit required
to be so secured must furnish the particular fund custodian
with an undertaking satisfactory to it that the aggregate
market value of all such obligations securing each such
certificate of deposit will at all times be an amount equal to
the principal amount of each such certificate of deposit;
(v) any repurchase agreement with any bank organized
under the laws of any state of the United States of America or
any national banking association, provided if such bank's or
association's principal office is located outside Cobb County,
such bank or association either (a) has a long term debt
rating by Moody's Investors Service and Standard & Poor's
Corporation at least as high as the rating on the Series 1993
Bonds and in no event lower than "A," or (b) has a capital and
surplus at least equal to $100,000,000; provided that such
repurchase agreement is secured by any one or more of the
securities described in clauses (ii) and (iii) above and in
the manner described in clause (iv) above; and
(vi) pooled investment programs sponsored by the State of
Georgia for the investment of local government funds.
('Project Fund" shall mean the Downtown Smyrna Development
Authority Project Fund created in the Resolution.
61996.1 9
('Project Fund Depositoryll means initially Smyrna Bank and
Trust Co., Smyrna, Georgia, its successors and assigns or any
successor depository for the Project Fund hereafter appointed by
the Authority with the approval of the Lessee; provided, however,
the Project Fund Depository shall at all times be a commercial
bank.
$'Refunded Bonds" means collectively the Refunded Series 1989
Bonds and Refunded Series 1990 Bonds.
('Refunded Series 1989 Bonds" means the Series 1989 Bonds
maturing in the years 2007 through 2016, inclusive, in the
aggregate principal amount of $4,025,000.
('Refunded Series 1990 BondsII means the Series 1990 Bonds
maturing in the years 2004 through 2016, inclusive, in the
aggregate principal amount of $6,350,000.
IlResolution" means the Original Resolution, as ratified,
reaffirmed, broadened and extended by the 1990 Resolution and the
1993 Resolution, and as same may be supplemented from time to time.
"Revenue Bond Law" means the Revenue Bond Law, Title 36,
Chapter 82, Article 3 of the Official Code of Georgia Annotated, as
amended, and as same may hereafter be amended from time to time.
('Series 1989 Bonds'$ means the $6,430,000 aggregate principal
amount of the Authority's Revenue Bonds, Series 1989 issued
pursuant to the Resolution.
"Series 1990 Bonds'l means the $8,690,000 aggregate principal
amount of the Authority's Revenue Bonds, Series 1990 issued
pursuant to the Resolution, including specifically Section 1 of the
1990 Resolution.
"Series 1993 BondsII means the $11,985,000 aggregate principal
amount of the Authority's Revenue Refunding Bonds, Series 1993
authorized to be issued pursuant to the Resolution, specifically
Section 1 of the 1993 Resolution.
"Sinking Fund" shall mean the Downtown Smyrna Development
Authority Sinking Fund created in the Resolution.
"Sinking Fund Custodian', means initially Smyrna Bank and Trust
Co., Smyrna, Georgia, its successors and assigns, or any successor
custodian for the Sinking Fund hereafter appointed by the
Authority; provided, however, the Sinking Fund Custodian shall at
all times be a commercial bank or trust company.
"Sinking Fund Year'l shall mean the period commencing on the
2nd day of February in each year and extending through the 1st day
of February in the next year.
61996.1 10
ARTICLE II.
REPRESENTATIONS
Section 2.1. Representations by the Authority. The Author-
ity makes the following representations as the basis for the
undertakings on its part herein contained:
(a) The Authority is authorized to enter into the
transactions contemplated by this Lease and to carry out its
obligations hereunder, has been duly authorized to execute and
deliver this Lease and will do or cause to be done all things
necessary to preserve and keep in full force and effect its
status and existence;
(b) The issuance and sale of the Bonds, the execution
and delivery of this Lease, the adoption of the Resolution,
and the performance of all covenants and agreements of the
Authority contained in this Lease and the Resolution and of
all other acts and things required under the Constitution and
laws of the State of Georgia to make this Lease a valid and
binding obligation of the Authority in accordance with its
terms are authorized by law and have been duly authorized by
proceedings of the Authority adopted at public meetings
thereof duly and lawfully called and held;
(c) The Authority has not made, done, executed or
suffered, and warrants that it will not make, do, execute or
suffer, any act or thing whereby its title to and interest in
the Leased Facilities will or may be impaired or encumbered in
any manner except as permitted herein and the Resolution and
except for acts or things done or permitted by the Lessee; and
(d) There is no litigation or proceeding pending, or to
the knowledge of the Authority threatened, against the
Authority or against any person having a material adverse
effect on the right of the Authority to execute this Lease or
the ability of the Authority to comply with any of its
obligations under this Lease.
Section 2.2. Representations and Agreements by the Lessee.
The Lessee makes the following representations and agreements:
(a) The Lessee is a political subdivision under the laws
of the State of Georgia having power to enter into and execute
and deliver this Lease and, by proper action of its governing
body, has authorized the execution and delivery of this Lease
and the taking of any and all such actions as may be required
on its part to carry out, give effect to and consummate the
transactions contemplated by this Lease and the Resolution,
and no approval or other action by any governmental authority,
agency, or other person is required in connection with the
61996.1 11
delivery and performance of this Lease by it except as shall
have been obtained as of the date hereof;
(b) This Lease has been duly executed and delivered by
the Lessee and constitutes its legal, valid and binding
obligation enforceable in accordance with its terms, except as
enforcement may be limited by the application of equitable
principles;
(c) The Lessee does not rely on any warranty of the
Authority, either express or implied, except as provided
herein, as to any title to or condition of the Leased
Facilities or that the Leased Facilities will be suitable to
the Lessee's needs, and the Lessee recognizes that the
Authority is not authorized to expend any funds for the Leased
Facilities other than rental revenue received by it therefrom
hereunder or the proceeds of the Bonds;
(d) The authorization, execution, delivery and
performance by the Lessee of this Lease and compliance by the
Lessee with the provisions thereof do not violate the laws of
the State of Georgia relating to the Lessee or constitute a
breach of or a default under, any other law, court order,
administrative regulation or legal decree, or any agreement or
other instrument to which it is a party or by which it is
bound;
(e) There is no litigation or proceeding pending, or to
the knowledge of the Lessee threatened, against the Lessee or
any other person having a material adverse affect on the right
of the Lessee to execute this Lease or its ability to comply
with any of its obligations under this Lease.
(f) During the Lease Term, the Lessee shall restrict the
extent and nature of the use of the Leased Facilities for
"private business use" as said term is defined in Section 141
of the Internal Revenue Code of 1986, as amended, so as to
preserve the exclusion from gross income for federal income
taxation purposes applicable to the interest paid on the
Bonds. The Lessee will not enter into subleases or management
contracts for portions of the Leased Facilities with any
person or entity other than a governmental unit. The Lessee
will permit the use of the Leased Facilities by non-exempt
persons only for short periods of time on a rate -scale basis
so that the rights and interests of such non-exempt persons
shall be only those of a transient occupant rather than full
legal possessory interests. The Lessee may enter into
concessionaire contracts provided the following conditions are
met:
(i) The contract (including renewal options) does
not exceed five years;
61996.1 12
(ii) Compensation to the concessionaire is not based
on net profits from the operations;
(iii) The Lessee (or Authority) has the option to
cancel the contract without penalty at the end of any three
year period; and
(iv) At least 50 percent of the compensation to the
concessionaire must be on a fixed fee basis (i.e. the other
portion can be on the basis of gross revenue).
ARTICLE III.
LEASING; ISSUANCE OF BONDS; PROCEEDS;
COMMENCEMENT AND COMPLETION OF THE PROJECTS
Section 3.1. Leasing. The Authority hereby leases to the
Lessee, and the Lessee hereby leases from the Authority, the Leased
Facilities at the rental set forth in Section 4.3 hereof and in
accordance with the provisions of this Lease. The Authority makes
no warranties to the Lessee with respect to the Leased Facilities.
Section 3.2. Agreement to Issue the Bonds; Application of
Bond Proceeds. The Authority agrees that it will validate and
cause to be issued the Series 1993 Bonds, the proceeds of which
shall be applied as provided in the 1993 Resolution and the City
hereby approves the issuance of the Series 1993 Bonds and the
refunding of the Refunded Bonds as set forth in the 1993
Resolution.
Section 3.3. Project Fund Moneys. The City and the Autho-
rity agree to cooperate with each other and will take such action
to the extent reasonably necessary to apply for and/or receive any
grants, gifts or donations to be applied to the cost of additions,
extensions and improvements to the Leased Facilities in accordance
with the Capital Improvement Program or any program or report
approved and ratified by the Authority and the City with respect to
any issue of Bonds. Any costs and expenses incurred in connection
with the issuance and delivery of any Bonds not paid by the
purchaser of any Bonds shall be borne by the City and shall be paid
for the account of the City.
Section 3.4. Agreement to Acquire and Construct the
Projects.
(a) The Authority has heretofore appointed, and hereby
reaffirms the appointment of, the Lessee as its agent to complete
the Capital Improvement Program. The Lessee shall continue to
obtain or cause to be obtained all necessary approvals from any and
all governmental agencies requisite to undertaking the Capital
Improvement Program and the projects described in the Capital
Improvement Program shall continue to be acquired, constructed and
61996.1 13
installed in compliance with all federal, state and local laws,
ordinances and regulations applicable thereto. The Lessee will
continue to take or cause to be taken such action and institute or
cause to be instituted such proceedings as it shall deem
appropriate to cause and require all contractors and suppliers of
materials to complete their contracts, including the correcting of
any defective work, and the Authority agrees that the Lessee may,
from time to time, in its own name, or in the name of the
Authority, take or cause to be taken such action as may be
necessary or advisable, as determined by the Lessee, to assure that
the construction and the installation of such projects will proceed
in an efficient and workmanlike manner. Any amounts recovered by
way of damages, refunds, adjustments or otherwise in connection
with the foregoing shall (i) if Lessee has corrected at its own
expense the matter which gave rise to such default or breach, be
paid to the Lessee or (ii) if Lessee has not corrected at its own
expense the matter which gave rise to such default or breach, be
paid into the Project Fund.
(b) The Lessee, as agent for the Authority has completed the
acquisition, construction, installation and equipping, or caused to
be acquired, constructed, installed and equipped, the projects
described in the Capital Improvement Program. All real or tangible
personal property acquired from time to time by the Lessee as agent
for the Authority in accordance herewith has been or shall be
transferred, by appropriate deed or other instrument, to the
Authority subject only to Permitted Encumbrances; and the Authority
has or shall accept title to such property which shall constitute
a part of the Leased Facilities.
(c) The Lessee has created on its books and records special
accounts for the Project Fund as to any issue of Bonds providing
Project Fund moneys, a separate account each of which has been
designated as "Series Capital Improvement Account"
(hereinafter referred to as a "Capital Improvement Account"). The
moneys credited to the Series 1989 Capital Improvement Account and
Series 1990 Capital Improvement Account were used and applied for
the purpose of paying the cost of the projects described in the
Capital Improvement Program and otherwise disbursed as herein
provided. The moneys derived from the sale of any Additional Bonds
under the Resolution (other than Additional Bonds issued to refund
outstanding Bonds) to be credited to any future Capital Improvement
Account shall be used and applied for the purpose of paying the
cost of additions, extensions and improvements to the Leased
Facilities in accordance with the capital improvement program or
report approved and ratified by the Authority and the City with
respect to each such issue of Additional Bonds.
(d) All payments from the Project Fund shall be made upon
checks signed by the officers of the City properly authorized to
sign on its behalf, but before they shall sign any such checks
there shall be filed with the Project Fund Depository:
61996.1 14
(1) A requisition for such payment (the above -mentioned
checks may be deemed a requisition for the purpose of this
Section), stating each amount to be paid, and the name of the
person, firm or corporation to whom payment thereof is due;
and
(2) A certificate signed by such officers, attached to
the requisition and certifying:
(i) That an obligation in the stated amount has
been incurred by the City on behalf of the Authority, and that
the same is a proper charge against the Project Fund and has
not been paid, specifying the purpose and circumstances of
such obligation in reasonable detail and to whom such obliga-
tion is owed, accompanied by the bill or statement of account
for such obligation, or a copy thereof;
(ii) That they have no notice of any vendor's,
mechanic's or other liens or rights to liens, chattel
mortgages, conditional sales contracts or any security
interest, which should be satisfied or discharged before such
payment is made;
(iii) That such requisition contains no item repre-
senting payment on account or any retained percentages which
the Authority or the City is, at the date of such certificate,
entitled to retain; and
(iv) That insofar as such obligation was incurred
for work, materials, supplies or equipment in connection with
the undertaking, such work was actually performed, or such
materials, supplies or equipment were actually installed in or
about the construction or delivered at the site of the work
for that purpose; and
(e) Simultaneously with any payment from the Project Fund
with respect to the acquisition of any real property (or interests
therein), the City shall cause to be transferred to the Authority
such real property (or interests therein), free of any liens and
encumbrances, and the same shall constitute part of the Leased
Facilities.
( f ) The City will do or cause to be done all things, and take
or cause to be taken all reasonable and prudent measures, necessary
to continue construction with due diligence and to expend the
moneys credited to each Capital Improvement Account in the Project
Fund as expeditiously as possible in order to assure the completion
of the projects for which such accounts were created, on the
earliest practicable date, and will indemnify itself against the
usual hazards incident to the construction of such projects, and
without in any way limiting the generality of the above, agrees to:
(a) require each construction contractor, and each subcontractor to
furnish a bond, or bonds, of such type and in amounts adequate to
61996.1 15
( assure the faithful performance of their contracts and the payment
of all bills and claims for labor and material arising by virtue of
such contract; and (b) require each construction contractor or the
subcontractor to maintain at all times until the completion and
acceptance of the undertaking adequate compensation insurance for
all of their employees and adequate public liability and property
damage insurance for the full and complete protection of the
Authority or the City from any and all claims of every kind and
character which may arise by virtue of the operations under their
contracts, whether such operations be by itself or by anyone
directly or indirectly for it, or under its control.
(g) All requisitions and certificates required by this
Section shall be retained either by the Project Fund Depository or
by the Authority or the City, subject at all times to inspection by
any officer of the Authority or any bondowner.
Section 3.5. In Event Project Fund Insufficient. The
Authority does not make any warranty, either express or implied,
that the moneys which will be paid into the Project Fund under the
provisions of this Lease will be sufficient to pay all the costs of
the projects which will be incurred in that connection. The Lessee
agrees that, if after exhaustion of the moneys in the Project Fund
the Lessee should pay any portion of the costs of the projects, it
shall not be entitled to any reimbursement therefor from the
Authority or from the owners of any of the Bonds, nor shall it be
entitled to any diminution in or postponement or abatement of the
amount of the rents and other amounts payable under Article IV
hereof.
Section 3.6. Investment of Project Fund Moneys Permitted.
Any moneys held in the Project Fund shall be invested or reinvested
at the direction of the City in Permitted Investments.
ARTICLE IV.
EFFECTIVE DATE OF THIS LEASE; DURATION
OF LEASE TERM; RENTAL PROVISIONS; FLOW OF FUNDS
Section 4.1. Effective Date of this Lease; Duration of Lease
Term. This Lease shall become effective as of September 1, 1989
upon its recordation in the offices of the Clerk of Superior Court
and the leasehold interest created by this Lease shall then begin,
and, subject to the other provisions of this Lease (including
particularly Article VIII hereof), shall expire February 2, 2016,
or if at said time and on said date all of the Bonds have not been
paid in full, then on such date as such payment shall have been
made, but in no event in excess of 50 years from the date hereof.
Upon said recordation hereof, the 1990 Lease shall be, and hereby
is, terminated.
61996.1 16
Section 4.2. Delivery and Acceptance of Possession. The
Authority has heretofore delivered and the Lessee has accepted
delivery of the Leased Facilities and such delivery and acceptance
is hereby ratified and reaffirmed. The Lessee agrees to operate,
maintain and insure or cause to be operated, maintained or insured
the Leased Facilities on a sound, businesslike basis and to accept
delivery of additions to the Leased Facilities as herein
contemplated.
Section 4.3. Basic Lease Payments.
On or before January 15 and July 15 of each year, the City
shall make the Basic Lease Payments to the Authority. If such date
is January 15, the City shall pay an amount sufficient to pay the
principal of and interest on the Bonds coming due on February 1,
and if such date is July 15, the City shall pay an amount
sufficient to pay the interest on the Bonds coming due on August 1,
and such Basic Lease Payments shall continue and recontinue until
provision has been made for the payment in full of the Bonds. In
addition to the foregoing, each Basic Lease Payment shall include
the charges as billed specified in subparagraphs (e), (f) and (g)
of Section 3, Article V of the Original Resolution. The Basic
Lease Payments provided for herein shall be made by payment
directly to the Sinking Fund Custodian for deposit into the Sinking
Fund.
Section 4.4. Operating Expenses. The City shall pay or
cause to be paid the reasonable and necessary costs of operating,
maintaining and repairing the Leased Facilities, including
salaries, wages, employee benefits, the payment of any contractual
obligations incurred pertaining to the operation of the Leased
Facilities, cost of materials and supplies, rentals (excluding
Basic Lease Payments) of leased property, real or personal,
insurance premiums, audit fees, any incidental expenses of the
Authority and such other charges as may properly be made for the
purpose of operating, maintaining and repairing the Leased
Facilities in accordance with sound business practice.
Section 4.5. Optional Prepayment of Rent; Redemption of
Bonds.
(a) The rent due under Section 4.3 shall be subject to pre-
payment, in whole or in part, for the purpose of calling and
redeeming, at the option of the City, all or part of the Bonds in
accordance with the applicable provisions of the Resolution,
provided, however, that the funds used to prepay such rent have
been deposited to the Sinking Fund prior to the giving of notice to
redeem by the Bond Registrar (as defined in the Resolution) to the
bondowners, and the Lessee shall pay all costs which may be
incurred in connection with the call of the Bonds to be redeemed
together with any applicable redemption premium.
61996.1 17
(b) No prepayment of any amount of rent in accordance with
the provisions of the preceding subsection shall relieve the Lessee
to any extent from its obligations thereafter to make the full
Basic Lease Payments required by the provisions hereof until all
the Bonds issued under the Resolution and the interest thereon and
the charges of the Bond Registrar and Paying Agent (as defined in
the Resolution) have been paid in full. Upon any prepayment of
rent, as authorized by the preceding subsection, in part, the Bonds
to be redeemed shall be called for redemption by lot or in such
other manner prescribed by the Resolution. Upon the prepayment of
such rent in whole, the amount of such prepayment shall be used to
retire all outstanding Bonds in the manner provided in, and subject
to, the Resolution.
Section 4.6. Obligations of Lessee Hereunder Absolute and
Unconditional. The obligation of the Lessee to make the payments
required in Section 4.3 hereof and to perform and observe the other
agreement on its part contained herein shall be absolute and
unconditional. Until such time as the principal of and interest on
the Bonds outstanding under the Resolution shall have been paid in
full or provision for the payment thereof shall have been made in
accordance with the Resolution, the Lessee (i) will not suspend or
discontinue any payments provided for in Section 4.3 hereof except
to the extent the same have been prepaid, (ii) will perform and
observe all of its other agreements contained in this Lease, and
(iii) except as provided in Article VIII hereof, will not terminate
the Lease Term for any cause, including, without limiting the
generality of the foregoing, failure of the Authority's or the
City's title in and to the Leased Facilities or any part thereof,
failure to acquire, construct or equip all or any part of the real
property as contemplated in the Capital Improvements Program, any
acts or circumstances that may constitute failure of consideration,
eviction or constructive eviction, destruction of or damage to the
Leased Facilities, commercial frustration of purpose, any change in
the tax or other laws of the United States of America or of the
State of Georgia or any political subdivision of either or any
failure of the Authority to perform and observe any agreement,
whether express or implied, or any duty, liability or obligation
arising out of or connected with this Lease or the Resolution.
Nothing contained in this Section shall be construed to release the
Authority from the performance of any of the agreements on its part
herein contained; and if the Authority should fail to perform any
such agreement, the Lessee may institute such action against the
Authority as the Lessee may deem necessary to compel performance or
recover its damages for nonperformance as long as such action shall
not do violence to or adversely affect the agreements on the part
of the Lessee contained in the preceding sentence and to make the
payments specified in Section 4.3 hereof; provided, however any
liability of the Authority shall be payable solely from rents,
revenues and receipts arising from the Authority's interest in the
Leased Facilities. The Lessee may, however, at its own cost and
expense and in its own name or in the name of the Authority,
prosecute or defend any action or proceeding or take any other
61996.1 18
action involving third persons which the Lessee deems reasonably
necessary in order to insure the acquisition and construction of
the Leased Facilities or to secure or protect its right of
possession, occupancy and use hereunder, and in such event the
Authority hereby agrees to cooperate fully with the Lessee and to
take all lawful action which is required to effect the substitution
of Lessee for the Authority in any such action or proceeding if the
Lessee shall so request.
Section 4.7. Tax Levy to Pay Basic Lease Payments.
(a) The obligations of the Lessee to make the Basic Lease
Payments when due under Section 4.3 hereof, and to perform its
other obligations hereunder, are absolute and unconditional as
herein provided, and the Lessee hereby pledges its full faith and
credit to such payment and performance.
(b) The Lessee covenants that, in order to make any Basic
Lease Payments when due from its general funds to the extent
required, it will exercise its power of taxation to the extent
necessary to pay any amounts required to be paid hereunder and it
will make available and use for such payments all taxes levied and
collected for that purpose together with funds received from any
other source. The Lessee further covenants and agrees that in
order to make funds available for such purpose, it will, in its
general revenue, appropriation and budgetary measures whereby its
tax funds or revenues and the allocation thereof are controlled or
provided for, include sums sufficient to satisfy any such Basic
Lease Payments that may be required to be made from the general
funds, whether or not any other sums are included in such measure,
until all payments so required to be made shall have been made in
full. The obligation of the Lessee to make any payments that may
be required to be made from its general funds shall constitute a
general obligation of the Lessee and a pledge of the full faith and
credit of the Lessee to provide the funds required to fulfill any
such obligation.
(c) In the event for any reason any such provision or
appropriation is not made as provided in the preceding subsection
(b), then the fiscal officers of the Lessee are hereby authorized
and directed to set up as an appropriation on their accounts in the
appropriate fiscal year the amounts required to pay the obligations
which may be due from the general funds. The amount of such
appropriation shall be due and payable and shall be expended for
the purpose of paying any such obligations, and such appropriation
shall have the same legal status as if the Lessee had included the
amount of the appropriation in its general revenue, appropriation
and budgetary measures, and the fiscal officers of the Lessee shall
make such Basic Lease Payments to the Sinking Fund Custodian for
deposit to the Sinking Fund if for any reason the payment of such
obligations shall not otherwise have been made.
61996.1 19
ARTICLE V
SPECIAL COVENANTS OF CITY
The City covenants and agrees with the Authority for the bene-
fit of the bondowners as follows:
Section 5.1. Rules and Regulations. That it will enforce or
cause to be enforced reasonable rules and regulations governing the
Leased Facilities and the operation thereof, and that all
compensation, salaries, fees and wages paid or caused to be paid by
it in connection with the operation, repair and maintenance of the
Leased Facilities will be reasonable, and that no more persons will
be employed than are necessary, and that it will operate or cause
to be operated same in an efficient and economical manner, and will
at all times maintain or cause to be maintained the same in good
repair and in sound operating condition, and will make or cause to
be made all necessary repairs, renewals and replacements, and that
it will comply or cause to be complied with all valid acts, rules,
regulations, orders and directions of any legislative, executive,
administrative or judicial body applicable to such undertaking and
enterprise.
Section 5.2. Contracting Procedure. That any contract rela-
ting to the installation, extension, improvement, maintenance or
repair of any facilities shall provide for retention of amounts due
thereunder in accordance with applicable law.
Section 5.3. Liens. That, except as herein provided and
except for Permitted Encumbrances, the City will not create or
suffer to be created, in the operation and maintenance of the
Leased Facilities, any lien, security interest or charge thereon,
or any part thereof, and that it will pay, or cause to be dis-
charged, or will make adequate provisions to satisfy and discharge,
within sixty (60) days after the same shall accrue, all lawful
claims and demands for labor, materials, supplies or other objects,
which, if unpaid, might by law become a lien upon the Leased
Facilities, or any part thereof; provided, however, that nothing
contained in this Section shall require the City to pay, or cause
to be discharged, or make provision for, any such lien, security
interest or charge, so long as the validity thereof shall be
contested in good faith and by appropriate legal proceedings.
Section 5.4. Insurance. That, to the extent deemed
necessary, it will cause to be bonded its employees or agents
handling funds of the Leased Facilities in amounts adequate for its
protection and it shall procure and maintain or cause to be
maintained insurance on the physical properties of the Leased
Facilities of the kinds and in the amounts normally carried by
private companies or other agencies engaged in the operation of
similar properties so long as any Bonds are outstanding. Such
insurance shall include: (a) fire and extended coverage insurance
on the insurable portions of the Leased Facilities with a
61996.1 20
responsible insurance company or companies authorized and qualified
to do business under the laws of the State of Georgia; (b) public
liability insurance relating to the operation of the Leased
Facilities; and (c) vehicular public liability insurance on any
vehicle owned or operated by the City and used in the operation of
the Leased Facilities. Such insurance may provide reasonable and
customary coverage and deductibles for agencies and governmental
authorities operating similar facilities, provided that such
insurance in such amount is available at a cost which, in the
opinion of the City, will not impose an unreasonable financial
burden, or the City may self insure against such claims and risks,
or the City, in its discretion, may provide for any combination of
the foregoing. The proceeds of such fire and extended coverage
policies are pledged as security for the Basic Lease Payments, but
shall be available for and shall, to the extent necessary and
desirable, be applied to the repair and replacement of the damaged
or destroyed property. In the event the proceeds of such policies
are not used for that purpose, then same shall be deposited in the
Sinking Fund. Proceeds from the fidelity bonds on employees and
agents shall be paid into the appropriate fund. All insurance
policies and fidelity bonds shall be open to the inspection of the
bondowners or their duly authorized representatives at all
reasonable times. All insurance policies shall name the Authority
as an additional insured.
Section 5.5. Sale of Assets. That so long as any of the
Bonds shall be outstanding, and except as in this Lease otherwise
permitted or provided for, it will not encumber the Leased
Facilities or any part thereof, and it will not sell or otherwise
dispose of the Leased Facilities or any integral part thereof,
except it may request the Authority to sell the Leased Facilities,
and the Authority shall sell the Leased Facilities if requested by
the City, as a whole, or substantially as a whole, if the proceeds
of such sale be at least sufficient to provide for the payment of
all Bonds secured by this Lease and any interest accrued or to
accrue thereon, and that the proceeds of any such sale shall be
deposited in trust and applied by the Authority to the extent
necessary to purchase or redeem such Bonds. Nothing contained
herein, however, shall preclude sale of a part of the Leased
Facilities, if the proceeds from such sale are used for other
public projects to be owned and operated by the City within the
geographic jurisdiction of the Authority, or for extensions and
improvements to the Leased Facilities, or deposited with the
Sinking Fund Custodian as prepayment of rent due hereunder and
applied toward the purchase or redemption of Bonds.
Section 5.6. Arbitrage. The City hereby covenants and
agrees that it will not, subsequent to the date of issuance and
delivery of any Bonds, intentionally use any portion of the
proceeds of any Bonds to acquire higher yielding investments,
except as may be otherwise permitted by Section 148 of the Internal
Revenue Code of 1986, as amended (the "Code") and that, as directed
by the Authority in order to fulfill the Authority's obligations
61996.1 21
under Article VII, Section 5 of the Original Resolution, as
ratified, reaffirmed, broadened and extended by Section 13 of the
1990 Resolution and Section 19 of the 1993 Resolution, it will
comply with, and take such action and make such payments as may be
permitted or required by Section 148(f) of the Code, to ensure that
the Bonds do not constitute "arbitrage bonds" within the meaning of
Section 148(a) of the Code and that it will expend the proceeds
from the sale of the Bonds and will take such action as may be
necessary so that the interest on the Bonds will be and will remain
excluded from gross income of the owners for federal income tax
purposes, including without limitation, compliance with provisions
of Sections 141-149 of the Code, as applicable. All expenses
incurred by the Authority in connection with its obligations under
Article VII, Section 5 of the Original Resolution, Section 13 of
the 1990 Resolution and Section 19 of the 1993 Resolution shall be
paid by the City. The obligations of the City under this Section
5.6 shall survive termination of this Lease.
ARTICLE VI.
SPECIAL COVENANTS OF AUTHORITY AND CITY
Section 6.1. No Warranty of Condition or Suitability by the
Authority. The Authority makes no warranty, either express or
implied, as to the condition of the Leased Facilities or that it
will be suitable for the Lessee's purposes or needs.
Section 6.2. Inspection of the Leased Facilities. The
Lessee agrees that the Authority, the bondowners and their duly
authorized agents who are acceptable to the Lessee shall have the
right at reasonable times during business hours, subject to the
Lessee's usual safety and security requirements to examine and
inspect the Leased Facilities without interference or prejudice to
the Lessee's operations.
Section 6.3. Granting of Easements; Sale. If no event of
default hereunder shall have happened and be continuing, the Lessee
may at any time or times cause to be granted, whether to itself or
otherwise, easements, licenses, rights -of -way (temporary or
perpetual and including the dedication of public highways) and
other rights or privileges in the nature of easements with respect
to any property included in the Leased Facilities and such grant
will be free from the lien or security interest of this Lease and
the Resolution or the Lessee may cause to be released existing
easements, licenses, rights -of -way and other rights or privileges
in the nature of easements, held with respect to any property
included in the Leased Facilities with or without consideration.
In connection with any such grant or any sale permitted by Section
5.5 hereof, the Authority agrees that it shall execute and deliver
any instrument necessary or appropriate to confirm and grant or
release any such easement, license, right-of-way or other right or
privilege or asset.
61996.1 22
Section 6.4. Further Assurances and Corrective Instruments,
Recordings and Filings. The Authority and the Lessee agree that
they will, from time to time, execute, acknowledge and deliver, or
cause to be executed, acknowledged and delivered, such supplements
hereto and such further instruments as may reasonably be required
to perfect title in and to that portion of the Leased Facilities
leased or intended so to be or for carrying out the intention of or
facilitating the performance of this Lease.
Section 6.5. Release Covenants. The Lessee releases the
Authority from, covenants and agrees that the Authority shall not
be liable for, all claims by or on behalf of any person arising
from: (1) the conduct or management of, or from any work or thing
done in or on, the Leased Facilities during the Lease Term; (ii)
any condition of the Leased Facilities, (iii) any breach or default
on the part of the Lessee in the performance of any of its
obligations under this Lease; (iv) any act of negligence of the
Lessee or of any agents, contractors, servants, employees or
licensees of the Lessee or of any lessee or tenant of the Lessee;
and (v) any loss or damage to property or any injury to or death of
any persons occurring on or about or resulting from any defect in
the Leased Facilities.
ARTICLE VII.
EVENTS OF DEFAULT AND REMEDIES
Section 7.1. Events of Default Defined. The following shall
be "events of default" under this Lease and the terms "event of
default" or "default" shall mean, whenever they are used in this
Lease, any one or more of the following events:
(a) Failure by the Lessee to make the Basic Lease
Payments required to be paid under Section 4.3 hereof at the
times specified therein;
(b) Failure by the Lessee to observe and perform any
covenant, condition or agreement of this Lease on its part to
be observed or performed, other than as referred to in
subsection (a) of this Section, for a period of 30 days after
written notice, specifying such failure and requesting that it
be remedied, shall have been given to the Lessee by the
Authority or the bondowners, unless the Authority and the
bondowners shall agree in writing to an extension of such time
prior to its expiration; provided, however, if the failure
stated in the notice cannot be corrected within the period
specified herein, the Authority and the bondowners will not
unreasonably withhold their consent to an extension of such
time if it is possible to correct such failure and corrective
action is instituted by the Lessee within the applicable
period and diligently pursued until the default is corrected;
and
61996.1 23
(c) An "event of default" shall have occurred under the
Resolution.
Section 7.2. Remedies on Default. Whenever any event of
default referred to in Section 7.1 hereof shall have happened and
be subsisting, the Authority, or the bondowners as provided in the
Resolution, may take any one or more of the following remedial
steps:
(a) If the principal and interest accrued on the Bonds
shall have been declared immediately due and payable pursuant
to the Resolution, the Authority or the bondowners may, at its
option, declare all installments of rent payable under Section
4.3 hereof for the remainder of the Lease Term to be
immediately due and payable, whereupon
immediately due and payable. If
bondowners elect to exercise the re
Section 7.2 (a) and accelerates all rent
4.3 hereof for the remainder of the
then due and payable by the Lessee as
be the sum of (1) the aggregate pr
outstanding Bonds, (2) all interest th
(3) any other amounts which may be c
pursuant to this Lease. Such sums as i
shall be paid into the Sinking Fund a
accrued interest thereon have been fu
occasioned by such default and the c,
have been satisfied, any excess mone,
shall be returned to the Lessee as an
the same shall become
the Authority or the
aedy afforded in this
s payable under Section
,ease Term, the amount
accelerated rent shall
.ncipal amount of the
?n due on the Bonds and
wing to the Authority
iay then become payable
id after the Bonds and
Lly paid and any costs
>llection of the rents
s in the Sinking Fund
overpayment of rents;
(b) The Authority or the bondowners may seek the
appointment of a receiver for the Leased Facilities;
(c) The Authority or the bondowners may require the
Lessee to furnish copies of all books and records of the
Lessee pertaining to the Leased Facilities;
(d) The Authority or the bondowners may take whatever
action at law or in equity may appear necessary or desirable
to collect the rents then due and thereafter to become due, or
to enforce performance and observance of any obligation,
agreement or covenant of the Lessee under this Lease; and
(e) The Authority or the bondowners may exercise any
remedies provided for in the Resolution.
Any amounts collected pursuant to action taken under this Section
shall be paid into the Sinking Fund and applied in accordance with
the provisions of the Resolution or, if payment in full of the
outstanding Bonds has been made (or provision for payment thereof
has been made in accordance with the provisions of the Resolution),
to the Lessee.
61996.1 24
Section 7.3. No Remedy Exclusive. No remedy herein con-
ferred upon or reserved to the Authority or the bondowners 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 Lease or now or
hereafter existing at law or in equity or by statute. No delay or
omission to exercise any right or power accruing upon the
occurrence of any event of default 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 from time to time and as often as
may be deemed expedient. In order to entitle the Authority or the
bondowners to exercise any remedy reserved to it in this Article,
it shall not be necessary to give any notice, other than such
notice or notices as may be herein expressly required. Such rights
and remedies as are given to the Authority hereunder shall also
extend to the bondowners, and the owners of the Bonds shall be
deemed third party beneficiaries of all covenants and agreements
herein contained.
Section 7.4. Agreement to Pay Attorneys Fees and Expenses.
If the Lessee should default under any of the provisions of this
Lease and either or both the Authority or the bondowners should
employ attorneys or incur other expenses for the collection of
rents or the enforcement of performance or observance of any obli-
gation or agreement on the part of the Lessee herein contained, the
Lessee agrees that it shall on demand therefor pay to the Authority
and the bondowners the reasonable fee of such attorneys and such
other reasonable expenses so incurred by the Authority and the
bondowners.
Section 7.5. No Additional Waiver Implied by One Waiver. If
any agreement contained in this Lease should be breached by either
party and thereafter waived by the other party, such waiver shall
be limited to the particular breach so waived and shall not be
deemed to waive any other breach hereunder.
ARTICLE VIII
OPTION OF LESSEE
Section 8.1. Unqualified Option to Purchase. On and after
the effective date of this Lease and during the Lease Term and for
365 days after the expiration thereof, the Lessee shall have the
unconditional right and option to purchase the Leased Facilities at
any time.
Section 8.2. Purchase Price. The purchase price payable if
the Lessee purchases the Leased Facilities pursuant to the provi-
sions of this Article VIII shall be $100 to be paid to the
Authority plus the full amount necessary under the provisions of
the Resolution to cause the payment in full of the Bonds
(including, without limitation, principal, interest, expenses of
61996.1 25
redemption and the Paying Agent's and Bond Registrar's fees accrued
and to accrue through final payment of the Bonds and all other
liabilities of the Lessee accrued under this Lease). In any case,
if no principal installment on the Bonds shall be outstanding at
the time of purchase, or the redemption or payment of the Bonds
shall be or have been otherwise provided for, the purchase price of
the Leased Facilities shall be $100 to be paid to the Authority.
Section 8.3. Procedure For Exercising Option to Purchase.
The Lessee may exercise its option to purchase hereunder by giving
written notice to the Authority of its intention to purchase the
Leased Facilities pursuant to the provisions of this Article VIII
specifying the time and place of closing and by giving notice to
the Authority. At the closing the Authority shall, upon payment of
the purchase price hereinabove specified, deliver to the Lessee
appropriate conveyance instruments transferring all of its right,
title and interest in and to the Leased Facilities.
ARTICLE Ix.
MISCELLANEOUS
Section 9.1. Notices. All notices, certificates or other
communications hereunder shall be sufficiently given and shall be
deemed given when mailed by registered or certified mail, return
receipt requested, postage prepaid.
Section 9.2. Binding Effect. This Lease shall inure to the
benefit of and shall be binding upon the Authority, the Lessee and
their respective successors and assigns, subject, however, to the
limitations contained in this Lease.
Section 9.3. Severability. If any provision of this Lease
shall be held invalid or unenforceable by any court of competent
jurisdiction, such holding shall not invalidate or render unen-
forceable any other provision hereof.
Section 9.4. Amounts Remaining in Sinking Fund. It is
agreed by the parties hereto that, subject to and in accordance
with the terms and conditions of the Resolution certain surplus
moneys remaining in the Sinking Fund shall belong to and be paid to
the Lessee by the Authority as an overpayment of rents.
Section 9.5. Amendments, Changes and Modifications. Except
as otherwise provided in this Lease or in the Resolution, prior to
payment in full of all Bonds (or provision for the payment thereof
having been made in accordance with the provisions of the
Resolution), this Lease may not be effectively amended, changed,
modified, altered or terminated without the requisite concurring
written consent of the bondowners in accordance with the
Resolution.
61996.1 26
r�- Section 9.6. Execution Counterparts. This Lease may be
simultaneously executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and
the same instrument.
Section 9.7. Captions. The captions and headings in this
Lease are for convenience only and in no way define, limit or
describe the scope or intent of any provisions of this Lease.
Section 9.8. Law Governing Project of Lease. This Lease
shall be governed by, and construed in accordance with, the laws of
the State of Georgia.
Section 9.9. Redemption of Bonds. The Authority, at the
request at any time of the Lessee, shall take all steps that may be
proper and necessary under the applicable redemption provisions of
the Resolution to effect the redemption of all or part of the then
outstanding Bonds as may be specified by the Lessee, on the
earliest redemption date on which such redemption may be effected.
It is understood that all expenses of such redemption shall be paid
by the Lessee and not from other funds of the Authority. The
Authority shall cooperate with the Lessee in effecting any purchase
or redemption of the Bonds.
Section 9.10. Net Lease. This Lease shall be deemed a "net
lease," and the Lessee shall pay absolutely net during the Lease
Term the rents, revenues and receipts pledged hereunder, without
abatement, deduction or set-off other than those herein expressly
provided.
Section 9.11. operating Contracts. Nothing contained in this
Lease shall affect or impair any existing agreements or contracts
between the City and the Authority regarding the operation and
management of the Leased Facilities.
61996.1 27
IN WITNESS WHEREOF, the Authority and the Lessee have caused
this Lease to be executed in their respective corporate names and
their respective corporate seals to be hereunto affixed and
attested by their duly authorized officers, on March 11, 1993,
effective as of the date first above written.
THE AUTHORITY: DOWNTOWN SMYRNA DEVELOPMENT AUTHORITY
(Corporate Seal)
By:
Chairman
Attest:
Secretary and Treasurer
As to the Authority, signed
and sealed in the presence of:
Witness
Notary Public
My commission expires:
(Notarial Seal)
61996.1 28
THE LESSEE:
(Seal)
Attest:
Clerk
As to the Lessee, signed and
sealed in the presence of:
Witness
Notary Public
My commission expires:
(Notarial Seal)
61996.1 29
CITY OF SMYRNA
By:
Mayor
ESCROW DEPOSIT AGREEMENT
By and Between
DOWNTOWN SMYRNA DEVELOPMENT AUTHORITY
and
BANK SOUTH, N.A.,
Dated April 13, 1993
Table of Contents
Section
1.
Receipt of Documents
and Moneys;
Investments .
Section
2.
Creation of Escrow Fund; Pledge
of Escrow
Fund . . . . . . . .
. . . . .
. . . . . . . .
Section
3.
Payments Provided by
Escrow Fund . . . . . . .
Section
4.
Redemption Notices .
. . . . .
. . . . . . . .
Section
5.
Payments from Escrow
Fund and
Investment of
Escrow Fund . . . .
. . . . .
. . . . . . . .
Section
6.
Limited Liability of
Escrow Agent
. . . . . .
Section
7.
Fees of Paying Agent
and Bond
Registrar . . .
Section
8.
Amendment of Escrow Agreement
. . . . . . . .
Section
9.
Resignation, Removal
and Replacement of
Escrow Agent . . . .
. . . .
. . . . . . . . .
Section
10.
Termination . . . .
. . . .
. . . . . . . . .
Section
11.
Severability . . . .
. . . .
. . . . . . . . .
Section
12.
Governing_ Law . . .
. . . .
. . . . . . . . .
Section
13.
Counterparts . . . .
. . . .
. . . . . . . . .
Section
14.
Successors and Assigns
. . .
. . . . . . . . .
64124.1
-1-
3
3
3
4
4
5
6
6
7
8
8
9
9
9
This Escrow Deposit Agreement (hereinafter referred to as
"Agreement") by and between the Downtown Smyrna Development
Authority (the "Authority"), and Bank South, N.A., Atlanta, Georgia
(the "Escrow Agent"):
W I T N E S E T H:
WHEREAS, the Authority has previously issued and delivered
$6,430,000 aggregate principal amount of its Revenue Bonds, Series
1989, dated November 1, 1989 (the "Series 1989 Bonds") in the form
of fully registered bonds without coupons, transferable to
subsequent owners as therein provided, bearing interest from date
at the rate per annum set forth below opposite each principal
maturity, all interest payable August 1, 1990 and semiannually
thereafter on the 1st days of February and August in each year, and
the principal maturing on the 1st day of February, in the years and
amounts as follows:
Year
Amount
Rate
Year
Amount
Rate
1993
$ 50,000
6.25%
2003
$ 215,000
6.75 %
1994
120,000
6.30
2004
230,000
6.80
1995
125,000
6.35
2005
245,000
6.85
1996
135,000
6.40
2006
265,000
6.90
1997
145,000
6.45
2007
285,000
7.00
1998
150,000
6.50
2008
305,000
7.00
1999
165,000
6.55
2009
330,000
7.00
2000
175,000
6.60
2010
355,000
7.00
2001
185,000
6.65
2016
2,750,000
7.125
2002
200,000
6.70
of which Series 1989 Bonds there is now outstanding $6,380,000
aggregate principal amount thereof, maturing in the years 1994 to
2016, inclusive; and
WHEREAS, the Authority has also previously issued and
delivered $8,690,000 aggregate principal amount of its Revenue
Bonds, Series 1990, dated February 1, 1990 (the "Series 1990
Bonds") in the form of fully registered bonds without coupons,
transferable to subsequent owners as therein provided, bearing
interest from date at the rate per annum set forth below opposite
each principal maturity, all interest payable August 1, 1990 and
semiannually thereafter on the 1st day of February and August in
each year, and the principal maturing on the 1st day of February,
in the years and amounts as follows:
64124.1
Year
Amount
Rate
Year
Amount
Rate
1992
$ 30,000
6.10%
2001
$ 255,000
7.10 %
1993
95,000
6.25
2002
275,000
7.10
1994
165,000
6.35
2003
290,000
7.10
1995
175,000
6.45
2004
315,000
7.10
1996
185,000
6.55
2005
335,000
7.15
1997
195,000
6.65
2006
360,000
7.20
1998
210,000
6.75
2007
385,000
7.20
1999
225,000
6.85
2010
1,320,000
7.25
2000
240,000
6.95
2016
3,635,000
7.375
of which Series 1990 Bonds there is now outstanding $8,565,000
aggregate principal amount thereof, maturing in the years 1994 to
2016, inclusive; and
WHEREAS, the Authority has determined that it should at this
time make due and legal provision for the refunding of the
outstanding Series 1989 Bonds maturing in the years 2007 through
2016, inclusive in the aggregate principal amount of $4,025,000
(the "Refunded Series 1989 Bonds") and the refunding of the
outstanding Series 1990 Bonds maturing in the years 2004 through
2016, inclusive, in the aggregate principal amount of $6,350,000
(the "Refunded Series 1990 Bonds" and, together with the Refunded
Series 1989 Bonds, called collectively the "Refunded Bonds") by
making due and legal provision for: (i) the payment of the
interest on the Refunded Series 1989 Bonds to February 1, 1999 as
the same becomes due and payable, and the redemption on February 1,
1999 of the Refunded Series 1989 Bonds at 102 percent of the
principal amount thereof plus accrued interest to the redemption
date; and (ii) the payment of the interest on the Refunded Series
1990 Bonds to February 1, 1999 as the same becomes due and payable,
and the redemption on February 1, 1999 of the Refunded Series 1990
Bonds at 102 percent of the principal amount thereof plus accrued
interest to the redemption date; and
WHEREAS, the Authority has determined to issue $11,985,000
aggregate principal amount of its Revenue Refunding Bonds, Series
1993 (the "Refunding Bonds" or the "Series 1993 Bonds") pursuant to
a resolution adopted by the Authority on March 11, 1993 (the
"Resolution") and to deposit with the Escrow Agent a portion of the
proceeds derived from the sale thereof which will be used to pay
the cost of acquiring certain direct obligations of the United
States of America (collectively, the "Escrow Obligations"), which
cash and Escrow Obligations are to be held, supervised, maintained
and administered by the Escrow Agent under the terms and conditions
of this Agreement and to pay certain expenses; and
WHEREAS, it is now necessary and desirable for the Authority
to enter into this Agreement with the Escrow Agent to provide for
the use and application of the moneys so deposited with the Escrow
64124.1 -2 -
Agent and the use and application of the principal of and the
interest on said Escrow Obligations to be acquired.
NOW, THEREFORE, in consideration of the premises and the
undertakings hereinafter set forth, it is agreed by and between the
Authority and the Escrow Agent, each acting by and through its duly
authorized officers:
Section 1. Receipt of Documents and Moneys; Investments.
The Escrow Agent acknowledges receipt of:
(a) A certified copy of the Resolution, among other things,
authorizing the issuance of the Refunding Bonds and providing for
the refunding of the Refunded Bonds now outstanding by redemption
and payment;
(b) A verification report of Grant Thornton, Atlanta,
Georgia, with respect to the provision for payment of the Refunded
Bonds;
(c) The sum of [$11,608,327.94] representing the proceeds
derived from the sale of the Refunding Bonds. The sum of
[$11,607,927.94] has been applied to purchase the securities
described in Exhibit A hereto (the "Escrow Obligations"), which are
now on deposit with and are being held by the United States Federal
Reserve Bank exclusively for the purpose of this Agreement and $400
is being held as the initial cash balance; and
(d) Full and complete payment of all fees, charges and
expenses incurred or to be incurred as Escrow Agent hereunder has
been received by the Escrow Agent.
Section 2. Creation of Escrow Fund; Pledge of Escrow Fund.
The parties hereto acknowledge the creation and the establishment
by the Escrow Agent of a special and irrevocable trust fund
designated "Downtown Smyrna Development Authority Escrow Fund" (the
"Escrow Fund") and the Escrow Agent acknowledges, agrees and
certifies that all of the cash and the Escrow Obligations are fully
credited to the Escrow Fund and are held separate and apart from
all other funds of the Escrow Agent. The Escrow Obligations and
income derived therefrom are by the Resolution and hereby
irrevocably pledged to the payment of the Refunded Bonds and the
owners of the Refunded Bonds are hereby granted and shall have an
express lien on the Escrow Obligations and the income derived
therefrom credited to the Escrow Fund until used and applied in
accordance with the terms of this Agreement.
Section 3. Payments Provided by Escrow Fund. The parties
hereto each acknowledge receipt of a verification report prepared
by Grant Thornton, Atlanta, Georgia, dated the date hereof,
demonstrating that the principal of and income derived from the
Escrow Obligations when due and payable and received by the Escrow
64124.1 3 -
Agent will provide moneys, in the aggregate, sufficient to acquire
by redemption and payment the Refunded Bonds by making the
following payments from said Escrow Fund, on the dates and in the
amounts, as follows:
Refunded
Series 1989
Bonds
Payment Date
Principal
Premium
Interest Total
August 1,
1993
$ $
February
1, 1994
August 1,
1994
February
1, 1995
[TO BE PROVIDED
BY LE% JOLLEY]
August 1,
1995
February
1, 1996
August 1,
1996
February
1, 1997
August 1,
1997
February
1, 1998
August 1,
1998
February
1, 1999
$2,750,000
$55,000
Refunded
Series 1990
Bonds
Payment Date
Principal
Premium
Interest Total
August 1,
1993
$ $
February
1, 1994
August 1,
1994
February
1, 1995
August 1,
1995
February
1, 1996
[TO BE PROVIDED
BY LE% JOLLEY]
August 1,
1996
February
1, 1997
August 1,
1997
February
1, 1998
August 1,
1998
February
1, 1999
$5,700,000
$114,000
Section 4. Redemption Notices. The Escrow Agent shall not
less than 30 nor more than 60 days prior to the redemption date for
the Refunded Series 1989 Bonds and Refunded Series 1990 Bonds mail
a copy of the respective redemption notices attached hereto as
Exhibit B and Exhibit C, respectively, to each registered owner of
the Refunded Bonds to be called for redemption as shown on the bond
registration books kept by the Escrow Agent in its capacity as Bond
Registrar for the Refunded Bonds. The Escrow Agent shall also
cause to be published a defeasance notice for the Refunded Bonds in
the manner and in publications determined by it to be reasonable
and customary.
Section S. Payments from Escrow Fund and Investment of
Escrow Fund. The Escrow Agent agrees that it shall withdraw from
the Escrow Fund and transfer to the paying agency account of Bank
South, N.A., for the Refunded Bonds on August 1, 1993 and on each
64124.1 -4 -
February 1 and August 1 thereafter, if such date is February 1, a
sum sufficient to pay the principal, premium, if any, and interest
due and payable on the Refunded Bonds on February 1 and, if such
date is August 1, a sum sufficient to pay the interest due and
payable on the Refunded Bonds on August 1, and such transfers shall
continue and recontinue until provision shall have been duly made
for the payment in full of all of the Refunded Bonds as set forth
in Section 3 hereof. The applicable and necessary portions of the
Resolution pertaining to the payment of the Refunded Bonds are by
this reference thereto incorporated herein and made a part hereof.
Any moneys remaining in the Escrow Fund after making all payments
required under this Agreement and after paying any incidental
expense (the "Remaining Funds") shall be remitted to the Authority.
section 6. Limited Liability of Escrow Agent. (a) The
parties hereto agree that the liability of the Escrow Agent for the
payment of money pursuant to this Agreement and the Resolution
shall be limited to the application of the principal of and the
income derived from the Escrow Obligations available for such
purpose as provided hereunder. The Escrow Agent shall have no lien
whatsoever on any of the moneys credited to or on deposit in the
Escrow Fund for the payment of fees and expenses for services
rendered by the Escrow Agent or otherwise.
(b) After the purchase of the Escrow Obligations, the
principal and interest derived from such Escrow Obligations, shall,
until used or applied as herein provided, be held in trust for the
purposes for which they were received, and the Escrow Agent shall
not be under any liability for interest on any such moneys.
(c) The Escrow Agent may rely and be protected in acting upon
any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order or other paper or document
reasonably believed by it to be genuine and to have been signed or
presented by the proper party or parties.
(d) The Escrow Agent may consult with counsel (who may, but
not need be, counsel to the Authority) and the opinion of such
counsel shall be full and complete authorization and protection in
respect of any action taken or suffered by the Escrow Agent
hereunder in good faith in accordance with the opinion of such
counsel.
(e) Notwithstanding anything else herein contained, the
Authority hereby agrees to indemnify, defend and hold the Escrow
Agent harmless from and against any loss, liability, cost or
expense (including reasonable attorneys fees and disbursements)
arising hereunder or in connection herewith, except to the extent
any such loss, liability, cost or expense is the result of the
gross negligence or willful misconduct of the Escrow Agent.
64124.1 -5-
section 7. Fees of Paying Agent and Bond Registrar. The
parties hereto agree that the moneys received by the Escrow Agent
under Section 1, paragraph (d) of this Agreement represent payment
of fees, charges and expenses incurred or to be incurred hereunder
as Escrow Agent and payment of the fees, charges and expenses
incurred or to be incurred by Bank South, N.A., as Paying Agent and
Bond Registrar for the Refunded Bonds, which functions the Escrow
Agent shall continue to perform in accordance with the resolution
under which they were issued.
section S. Amendment of Escrow Agreement. This Agreement
is made for the benefit of the Authority and the owners from time
to time of the Refunded Bonds and it shall not be repealed,
revoked, altered or amended without the written consent of all such
owners and the written consent of the Escrow Agent; provided,
however, that the Authority and the Escrow Agent may, without the
consent of, or notice to, such owners, enter into such agreements
supplemental to this Agreement as shall not adversely affect the
rights of such owners and as shall not be inconsistent with the
terms and provisions of this Agreement, for any one or more of the
following purposes:
(a) to cure any ambiguity or formal defect or omission
in this Agreement;
(b) to grant to, or confer upon, the Escrow Agent for
the benefit of the owners of the Refunded Bonds any
additional rights, remedies, powers or authority that may
lawfully be granted to, or conferred upon, such owners or the
Escrow Agent; and
(c) to subject to this Agreement additional funds,
securities or properties including the restructuring of the
securities held in escrow hereunder to better match the cash
requirements of the Escrow Fund so long as such restructuring
does not adversely affect the rights or security of the owners
of the Refunded Bonds and is accompanied by an opinion of
Sutherland, Asbill & Brennan that such restructuring does not
adversely affect the exclusion of interest on the Refunding
Bonds or the Refunded Bonds.
The Escrow Agent shall be entitled to rely exclusively upon an
unqualified opinion of attorneys nationally recognized on the
subject of municipal bonds with respect to compliance with this
Section, including the extent, if any, to which any change,
modification, addition or limitation affects the rights of the
owners of the Refunded Bonds or that any instrument executed
hereunder complies with the conditions and provisions of this
Section. A copy of any proposed amendment shall be provided prior
to execution by the Escrow Agent to Moody's Investors Service, 99
Church Street, New York, New York 10007 and Standard & Poor's
Corporation, 25 Broadway, New York, New York 10004.
64124.1 - 6 -
section 9. Resignation, Removal and Replacement of Escrow
Agent. The Escrow Agent at the time acting hereunder may at any
time resign and be discharged from the trusts hereby created by
giving not less than 60 days written notice to the Authority and to
each registered owner of the then outstanding Refunded Bonds
specifying the date when such resignation will take effect. Such
resignation shall take effect immediately upon the acceptance by
the Authority of the resignation, the appointment by the Authority
of a successor Escrow Agent and acceptance by such successor Escrow
Agent of the terms, covenants and conditions of this Agreement.
The Escrow Agent may be removed at any time by an instrument
or concurrent instruments in writing, delivered to the Escrow Agent
and to the Authority and signed by the owners of a majority in
principal amount of each of the Refunded Bonds then outstanding.
In the event the Escrow Agent hereunder shall resign or be
removed, or be dissolved, or shall be in the course of dissolution
or liquidation, or otherwise become incapable of acting hereunder,
or in case the Escrow Agent shall be taken under the control of any
public officer or officers, or of a receiver appointed by a court,
the Authority shall appoint a successor Escrow Agent to fill such
vacancy. The Authority shall cause notice of any such appointment
to be sent to each registered owner of the outstanding Refunded
Bonds. - —�
In the event that no appointment of a successor Escrow Agent
shall have been made by the Authority pursuant to the foregoing
provisions of this Section 9 within 30 days after written notice of
resignation of the Escrow Agent has been given to the Authority,
the owner of any of the Refunded Bonds or the retiring Escrow Agent
may apply to any court of competent jurisdiction for the
appointment of a successor Escrow Agent, and such court may
thereupon, after such notice, if any, as it shall deem proper,
appoint a successor Escrow Agent.
No successor Escrow Agent shall be appointed unless such
successor Escrow Agent shall be a corporation with trust powers
organized under the banking laws of the United States or any State,
and shall have capital and surplus of not less than $25,000,000 as
shown on its most recently published report of condition or on its
latest audited financial statements.
In that the Escrow Agent has been paid in full for all of its
fees, charges and expenses incurred or to be incurred as Escrow
Agent hereunder, the Escrow Agent agrees to pay for the remaining
period of the escrow in advance all fees, charges and expenses to
be incurred by the next succeeding Escrow Agent, if any, up to the
amount received by the Escrow Agent as payment of its own fees,
charges and expenses. The amount to be so paid shall be determined
by multiplying the amount received pursuant to Section 1(d) hereof
by a fraction the denominator of which is 38 and the numerator of
64124.1 -7-
which is the number of months (rounded to the nearest whole number)
between the date the successor assumes its obligations hereunder
and February 1, 1999. Each succeeding Escrow Agent, if any, shall
have the same obligation to its successor as Escrow Agent.
Every successor Escrow Agent appointed hereunder shall
execute, acknowledge and deliver to its predecessor and to the
Authority, an instrument in writing accepting such appointment
hereunder and thereupon such successor Escrow Agent without any
further act, deed or conveyance, shall become fully vested with all
the rights, immunities, powers, trusts, duties and obligations of
its predecessor; but such predecessor shall, nevertheless, on the
written request of such successor Escrow Agent or the Authority
execute and deliver an instrument transferring to such successor
Escrow Agent all the estates, properties, rights, powers and trusts
of such predecessor hereunder; and every predecessor Escrow Agent
shall deliver all securities and moneys held by it to its
successor. Should any transfer, assignment or instrument in
writing from the Authority be required by a successor Escrow Agent
to more fully and certainly vest in such successor Escrow Agent the
estates, rights, powers, and duties hereby vested or intended to be
vested in the predecessor Escrow Agent, any such transfer,
assignment and instruments in writing shall, on request, be
executed, acknowledged and delivered by a duly authorized officer
of the Authority.
Any corporation into which the Escrow Agent, or any successor
to it in the trusts created by this Agreement, may be merged or
converted or with which it or any successor to it may be
consolidated, or any corporation resulting from any merger,
conversion, consolidation or tax-free reorganization to which the
Escrow Agent or any successor to it shall be a party or any
corporation otherwise succeeding to the corporate trust business of
the Escrow Agent shall be the successor Escrow Agent under this
Agreement without the execution or filing of any paper or any other
act on the part of any of the parties thereto, anything herein to
the contrary notwithstanding.
Section 10. Termination. This Agreement shall terminate
when all transfers required to be made by the Escrow Agent under
the provisions hereof shall have been made.
Section 11. Severability. If any one or more of the
covenants or agreements provided in this Agreement on the part of
the Authority or the Escrow Agent to be performed should be
determined by a court of competent jurisdiction to be contrary to
law, such covenant or agreement shall be deemed and construed to be
severable from the remaining covenants and agreements herein
contained and shall in no way affect the validity of the remaining
provisions of this Agreement. If any provision shall have been
determined to be contrary to law or severable, the Escrow Agent
shall promptly notify Moody's Investors Service and Standard &
64124.1 - 8 -
Poor's Corporation at the respective addresses hereinabove set
forth.
Section 12. Governing Law. This Agreement shall be
governed by the applicable laws of the State of Georgia.
Section 13. Counterparts. This Agreement may be executed
in several counterparts, all or any of which shall be regarded for
all purposes as one original and shall constitute and be but one
and the same instrument.
Section 14. Successors and Assigns. All the covenants and
agreements in this Agreement contained by or on behalf of the
Authority or the Escrow Agent shall bind and inure to the benefit
of their respective successors and assigns, whether or not so
expressed.
IN WITNESS WHEREOF, the parties hereto have each caused this
Agreement to be executed by their duly authorized officer or
officers and their official seals to be hereunto affixed and
attested, this day of April, 1993.
DOWNTOWN SMYRNA
DEVELOPMENT AUTHORITY
(S E A L)
By:
Chairman
Attest:
Secretary and Treasurer
(Signatures Continued on Following Page]
64124.1 -9 -
(Signatures Continued from Previous Page]
BANK SOUTH, N.A.
Atlanta, Georgia
(S E A L)
By:
Attest:
Authorized Signatory
Authorized Signatory
64124.1 -10-
64124.1
EXHIBIT "All
Maturity
Investment
Coupon
Investment
Date
Principal
Rate
Type
7/31/93
$ 25,000
6.875%
U.S.
Treasury
1/15/94
24,000
7.000
U.S.
Treasury
7/15/94
25,000
8.000
U.S.
Treasury
1/15/95
27,000
8.625
U.S.
Treasury
7/15/95
27,000
8.875
U.S.
Treasury
1/31/96
29,000
7.500
U.S.
Treasury
7/31/96
30,000
7.875
U.S.
Treasury
1/15/97
31,000
8.000
U.S.
Treasury
7/31/97
32,000
5.500
U.S.
Treasury
1/15/98
34,000
7.875
U.S.
Treasury
7/15/98
34,000
8.250
U.S.
Treasury
1/15/99
10,619,000
6.375
U.S.
Treasury
-11-
10
r
EXHIBIT nBn
NOTICE OF CALL FOR REDEMPTION
DOWNTOWN SMYRNA DEVELOPMENT AUTHORITY
REVENUE BONDS, SERIES 1989
DATED NOVEMBER 11 1989
NOTICE is hereby given to the owners of the following
described Downtown Smyrna Development Authority Revenue Bonds, that
said bonds maturing in the years 2007 through 2016, inclusive, have
been called for redemption on February 1, 1999, said bonds being in
the aggregate principal amount of $4,025,000 known as "Downtown
Smyrna Development Authority Revenue Bonds, Series 1989," dated
November 1, 1989, bearing interest from date at the rate per annum
set forth below opposite the principal maturity, all interest
payable on the 1st days of February and August in each year, and
the principal maturing on the date and in the amount, as follows:
Date
Amount
Rate Cusip No.
February
1,
2007
$ 285,000
7.00%
February
1,
2008
305,000
7.00
February
1,
2009
330,000
7.00
February
1,
2010
355,000
7.00
February
1,
2016
2,750,000
7.125% 2611747AUO
Funds for the redemption and payment of said bonds and the
interest due thereon on February 1, 1999 and for the required
redemption premium (2 percent) will be available at Bank South,
N.A., Atlanta, Georgia, on February 1, 1999 and said above -
described bonds should be presented to said bank for redemption and
payment on said date. Interest on the above -described bonds
designated for redemption shall cease to accrue on and after the
February 1, 1999 redemption date.
This notice is given under and pursuant to a resolution of the
Downtown Smyrna Development Authority adopted on the 11th day of
March, 1993.
DOWNTOWN SMYRNA DEVELOPMENT AUTHORITY
(S E A L)
/ s/
Chairman
Attest:
/s/
Secretary and Treasurer
64124.1 -12 -
R A
EXHIBIT BIC"
NOTICE OF CALL FOR REDEMPTION
DOWNTOWN SMYRNA DEVELOPMENT AUTHORITY
REVENUE BONDS, SERIES 1990
DATED FEBRUARY 11 1990
NOTICE is hereby given to the owners of the following
described Downtown Smyrna Development Authority Revenue Bonds, that
said bonds maturing in the year 2004 through 2016, inclusive, have
been called for redemption on February 1, 1999, said bonds being in
the aggregate principal amount of $6,350,000 known as "Downtown
Smyrna Development. Authority Revenue Bonds, Series 1990," dated
February 1, 1990, bearing interest from date at the rate per annum
set forth below opposite each principal maturity, all interest
payable semiannually on the 1st days of February and August in each
year, and the principal maturing on the 1st day of February, in the
years and amounts, as follows:
Date
Amount
Rate
Cusip No.
2004
$ 315,000
7.10
2005
335,000
7.15
2006
$ 360,000
7.20%
2611747BK1
2007
385,000
7.20
2611747BL9
2010
1,320,000
7.25
2611747BP0
2016
3,635,000
7.375
2611747BQ8
2611747BR6 (Insured Bonds)
Funds for the redemption and payment of said bonds and the
interest due thereon on February 1, 1999 and for the required
redemption premium (2 percent) will be available at Bank South,
N.A., Atlanta, Georgia, on February 1, 1999 and said above -
described bonds should be presented to said bank for redemption and
payment on said date. Interest on the above -described bonds
designated for redemption shall cease to accrue on and after the
February 1, 1999 redemption date.
This notice is given under and pursuant to a resolution of the
Downtown Smyrna Development Authority adopted on the llth day of
March, 1993.
DOWNTOWN SMYRNA DEVELOPMENT AUTHORITY
(S E A L)
/s/
Chairman
Attest:
/s/
Secretary and Treasurer
64124.1 -13 -