02-05-1990 Regular MeetingFebruary 5, 1990
The Downtown Smyrna Development Authority met at Smyrna City Hall on
February 5, 1990.
Those attending were:
A. Max Bacon, Chairman
Hubert Black
C. J. Fouts
Jimmy Wilson
Charles "Pete" Wood
Willouise C. Spivey, Secretary/Treasurer
Absent:
E. Alton Curtis
Jim Pitts
Also present was Attorney Charles E. Camp, Gordon Mortin with Lex Jolley &
Co., Inc., Ben Watkins with Sutherland, Asbill and Brennan, City Clerk
Melinda Dameron and City Administrator John Patterson.
Purpose of the meeting was to review and approve the amended and restated
Lease Contract between the Downtown Smyrna Development Authority and the
City of Smyrna as of September 1, 1989 and the Bond Resolution to provide
for issuance of Series 1990 Bonds totaling $8,690,000.
Gordon Mortin explained that the 1989 issue of $6,430,000 was for the land
acquisition for the downtown development and was considered the first
phase. The 1990 issue is the second phase which will include completion of
the land acquisition, construction, renovation and equipping of buildings
and related facilities for the downtown redevelopment. In approximately
two years, the City will consider a third issue for construction of a new
Fire Station, Police Station and City Hall complex.
Mr. Wood made a motion the Resolution be adopted as drafted and presented
tonight and the Chairman authorized to sign. Mr. Fouts seconded the motion
which carried unanimously.
Mr. Wilson made a motion the Downtown Smyrna Development Authority minutes
from the first meeting held April 11, 1989 through the meeting of January
24, 1990 be approved as submitted. Mr. Black seconded the motion which
carried unanimously.
With no further business, meeting adjourned.
AMENDED AND RESTATED
LEASE CONTRACT
between
DOWNTOWN SMYRNA DEVELOPMENT AUTHORITY
and
CITY OF SMYRNA
Dated as of September 1, 1989
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AMENDED AND RESTATED
LEASE CONTRACT
THIS 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
contracts hereinafter contained, the Authority and the Lessee agree
as follows:
ARTICLE I.
DEFINITIONS
In addition to the words and terms elsewhere defined in this
Amended and Restated Lease Contract, the following words and terms
as used in this 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:
"Additional Bonds" means any of the Authority's revenue bonds
ranking on a parity with the Series 1989 Bonds and the Series 1990
Bonds which may hereafter be issued pursuant to the Resolution.
"Authority" shall mean the Downtown Smyrna Development
Authority, its successors and assigns.
"Authority Act" shall mean Georgia Laws 1989, p. 4382 et seq.
"Basic Lease Payments" 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 any deficit in any preceding Basic Lease
Payment.
"Bondholder" and "bondholder" means the registered owner of
any of the outstanding Bonds.
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"Bonds" shall mean any revenue bonds authorized by and issued
pursuant to the Resolution, including the Series 1989 Bonds, the
Series 1990 Bonds and any Additional Bonds of the Authority issued
pursuant to the Resolution.
"Capital Improvement Program" shall mean the Smyrna Master
Plan, Phase I: Community Center and Library Project No. 88190,
dated September, 1989, prepared by the Sizemore Floyd Architects,
Atlanta, Georgia for the Lessee and the Authority.
"City" or "Lessee" means the City of Smyrna, its successors
and assigns.
"Fiscal Year" means the fiscal year for the City as may be
designated by appropriate proceedings of the City.
"Lease" or "Contract" means this Amended and Restated Lease
Contract, as from time to time amended.
"Lease Term" 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 Resolution') means that certain bond resolution of the
Authority adopted on February , 1990 authorizing the issuance
of the Series 1990 Bonds.
"original Resolution" means that certain bond resolution of
the Authority adopted September 5, 1989 authorizing the issuance
of the Series 1989 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;
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(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,
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 or Standard & Poor's
Corporation either equivalent to or higher 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.
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"Project Fund" shall mean the Downtown Smyrna Development
Authority Project Fund created in the Resolution.
$$Project Fund Depository" 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.
ouResolutiong, means that certain bond resolution of the Autho-
rity adopted September 5, 1989 authorizing the issuance of the
Series 1989 Bonds, as supplemented, ratified, reaffirmed, broadened
and extended by that certain resolution of the Authority adopted
November 8, 1989, and the 1990 Resolution and as same may be
supplemented from time to time.
"Revenue Bond Law'l 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 authorized to
be issued pursuant to the Resolution.
"Series 1990 Bonds" means the $8,690,000 aggregate principal -
amount of the Authority's Revenue Bonds, Series 1990 authorized to
be issued pursuant to the Resolution, including specifically
Section 1 of the 1990 Resolution.
IlSinking Fund" shall mean the Downtown Smyrna Development
Authority Sinking Fund created in the Resolution.
IlSinking Fund Custodian'o 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.
"Sinking Fund Year, 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.
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:
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(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 Series 1989 Bonds, the
Series 1990 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
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 obli-
gation enforceable in accordance with its terms, except as
a:\amdlease.con -5-
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 perfor-
mance 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 leases 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 (5) years;
(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
(3) year period; and
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(iv) At least fifty percent (50%) of the compensa-
tion to the concessionaire must be on a fixed fee basis (i.e.
the other portion can be on the basis of gross revenue).
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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 Series 1989 Bonds and
Series 1990 Bonds; Application of Bond Proceeds. The Authority
agrees that it will validate and cause to be issued the Series 1989
Bonds, and the Series 1990 Bonds, the proceeds of which shall be
applied as provided in the Resolution and the City hereby approves
the issuance of the Series 1989 Bonds and the Series 1990 Bonds.
Section 3.3. Project Fund Moneys. The City and the Authority
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 Proiects.
(a) The Authority hereby appoints the Lessee as its agent to
proceed forthwith with the Capital Improvement Program. The Lessee
shall 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 be acquired, constructed and
installed in compliance with all federal, state and local laws,
ordinances and regulations applicable thereto. The Lessee will
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
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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, shall acquire,
construct, install and equip, or cause to be acquired, constructed,
installed and equipped, the projects described in the Capital
Improvement Program with all reasonable dispatch and shall use its
best efforts to cause the acquisition, construction, installation
and equipping to be completed as soon as may be practical, delays
incident to strikes, riots, acts of God or the public enemy beyond
the reasonable control of the Lessee excepted; but if for any
reason such acquisition, construction and installation is not
completed by any specified date there shall be no resulting
liability on the part of the Lessee. All real or tangible personal
property acquired from time to time by the Lessee as agent for the
Authority in accordance herewith shall- be transferred, by
appropriate deed or other instrument, to the Authority subject only
to Pemritted Encumbrances; and the Authority shall accept title to
such proprety which shall constitute from part of the Leased
Facilities.
(c) The Lessee shall create 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 shall be
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 shall be 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 to be credited to the related 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:
(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:
a:\amdlease.con -9-
(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 th'e,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 subcon-
tractor to furnish a bond, or bonds, of such type and in amounts
adequate to 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
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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 bondholder.
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
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 fifty (50) years from the date
hereof.
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.
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On or before January 15 and July 15 of each year, commencing
with July 15, X990, the City shall make the Basic Lease Payments
to the Authority. If such date is January 15th, 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 15th, 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 Payments shall include the charges as billed specified
in subparagraphs (e) , (f) and (g) of Section 3, Article V of the
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 provisions of Article III 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 bondholders, 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.
(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
a:\amdlease.con -12-
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
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:\amdlease.con -13-
(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.
ARTICLE V
SPECIAL COVENANTS OF CITY
The City covenants and agrees with the Authority for the bene-
fit of the bondholders 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
a:\amdlease.con -14-
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
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,
a:\amdlease.con -15-
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
bondholders 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 under
Article VII, Section 5 of the Original Resolution, as ratified,
reaffirmed, broadened and extended by Section 13 of the 1990
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 Series 1989 Bonds and the Series 1990
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 Series 1989 Bonds and the Series 1990 Bonds
and will take such action as may be necessary so that. the interest
on the Series 1989 Bonds and the Series 1990 Bonds will be and will
remain excluded from gross income of the owners for federal income
a:\amdlease.con -16-
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
and Section 13 of the 1990 Resolution shall be paid by the City.
The obligations of the City under this Section 5.6 shall survive
termination of this Lease.
a:\amdlease.con -17-
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 bondholders 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.
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
a:\amdlease.con -18-
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,--.ondition 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 thirty (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 bondholders, unless the -
Authority and the bondholders 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 bondholders 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
(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 bondholders 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 bondholders 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 the same shall become
immediately due and payable. If the Authority or the
bondholders elect to exercise the remedy afforded in this
a:\amdlease.con -19-
Section 7.2(a) and accelerates all rents payable under Section
4.3 hereof for the remainder of the Lease Term, the amount
then due and payable by the Lessee as accelerated rent shall
be the sum of (1) the aggregate principal amount of the
outstanding Bonds, (2) all interest then due on the Bonds and
(3) any other amounts which may be owing to the Authority
pursuant to this Lease. Such sums as may then become payable
shall be paid into the Sinking Fund and after the Bonds and
accrued interest thereon have been fully paid and any costs
occasioned by such default and the collection of the rents
have been satisfied, any excess moneys in the Sinking Fund
shall be returned to the Lessee as an overpayment of rents;
(b) The Authority or the bondholders may seek the
appointment of a receiver for the Leased Facilities;
(c) The Authority or the bondholders 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 bondholders -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 bondholders 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.
Section 7.3. No Remedy Exclusive. No remedy herein conferred
upon or reserved to the Authority or the bondholders 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 bondholders
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
bondholders, and the holders of the Bonds shall be deemed third
a:\amdlease.con -20-
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 bondholders 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 bondholders the reasonable fee of such attorneys
and such other reasonable expenses so incurred by the Authority
and the bondholders.
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
three hundred sixty-five (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 One Hundred Dollars ($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 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 One Hundred Dollars ($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
a:\amdlease.con -21-
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 bondholders in accordance with the
Resolution.
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
a:\amdlease.con -22-
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.
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, all 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)
a:\amdlease.con -23-
THE LESSEE: CITY OF SMYRNA
(Seal)
By:
Mayor
Attest:
Clerk
As to the Lessee, signed and
sealed in the presence of:
Witness
Notary Public
My commission expires:
(Notarial Seal)
a:\amdlease.con
BOND RESOLUTION
A RESOLUTION TO PROVIDE FOR THE ISSUANCE OF DOWNTOWN SMYRNA
DEVELOPMENT AUTHORITY REVENUE BONDS, SERIES 1990, PURSUANT TO AND
IN CONFORMITY WITH A RESOLUTION ADOPTED SEPTEMBER 5, 1989, AS
SUPPLEMENTED BY A RESOLUTION ADOPTED NOVEMBER 8, 1989, TO PROVIDE
FUNDS TO PAY OR TO BE APPLIED TOWARD THE COST OF THE ACQUISITION,
CONSTRUCTION, RENOVATION AND EQUIPPING OF BUILDINGS AND RELATED
FACILITIES FOR THE REDEVELOPMENT OF THE DOWNTOWN AREA OF THE CITY
OF SMYRNA AND TO PAY EXPENSES NECESSARY TO ACCOMPLISH SAME; TO
RATIFY, REAFFIRM AND ADOPT ALL APPLICABLE TERMS, PROVISIONS,
COVENANTS AND CONDITIONS OF THE RESOLUTION OF SEPTEMBER 5, 1989;
TO APPROVE, AUTHORIZE AND PROVIDE FOR THE EXECUTION OF AN AMENDED
AND RESTATED LEASE CONTRACT, DATED AS OF SEPTEMBER 1, 1989, WITH
THE CITY OF SMYRNA; TO PROVIDE FOR DEPOSIT OF THE PROCEEDS FROM
THE SALE OF THE SERIES 1990 BONDS TO CERTAIN FUNDS PREVIOUSLY
CREATED; TO AUTHORIZE AND DIRECT THE EXECUTION OF A CERTIFICATE
PERTAINING TO THE PROCEEDS DERIVED FROM THE SALE OF THE SERIES 1990
BONDS; TO DESIGNATE THE SERIES 1990 BONDS AS "QUALIFIED TAX-EXEMPT
OBLIGATIONS" WITHIN THE MEANING OF SECTION 265(B)(3) OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED; TO AUTHORIZE THE
OFFICERS OF THE AUTHORITY TO MARE CERTAIN ELECTIONS UNDER THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED; TO PROVIDE FOR THE
REMEDIES OF THE OWNERS OF THE SERIES 1990 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"
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 thereof, 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
N
such buildings, streets, roads and alleys deemed by the Authority
to be necessary, convenient or desirable in connection therewith;
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 is an urgent need for certain capital
improvements to be made; and
WHEREAS, the City and the Authority have 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
sometimes referred to as "Capital Improvement Program"; and
WHEREAS, the Authority has determined that the best method of
raising the moneys required to finance the undertaking contemplated
is 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 has 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
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 semi-annually 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%
2005
$245,000
6.85 %
1994
120,000
6.30
2006
265,000
6.90
1995
125,000
6.35
2007
285,000
7.00
1996
135,000
6.40
2008
305,000
7.00
1997
145,000
6.45
2009
330,000
7.00
1998
150,000
6.50
2010
355,000
7.00
1999
165,000
6.55
2011
380,000
7.125
2000
175,000
6.60
2012
410,000
7.125
2001
185,000
6.65
2013
440,000
7.125
2002
200,000
6.70
2014
470,000
7.125
2003
215,000
6.75
2015
505,000
7.125
2004
230,000
6.80
2016
545,000
7.125
c:\docs\pf\c175865.02\re301
-2-
and all of said Series 1989 Bonds are now outstanding 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 contemplated by the Capital
Improvements Program (the "Leased Facilities") to be acquired and
constructed by the Authority 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 obligates 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 has agreed
in the Original Lease to exercise its power of taxation to the
extent necessary to make such Basic Lease Payments and it will make
available and use for such Basic Lease Payments all taxes levied
and collected for that purpose together with funds received from
any other source; and
WHEREAS, to finance the undertaking now contemplated the
Authority has issued its Series 1989 Bonds and proposes to issue
the $8,690,000 principal amount of its Revenue Bonds, Series 1990
(hereinafter sometimes referred to as "Series 1990 Bonds")
hereinafter authorized to be issued and it is contemplated that
said bonds will be sold in the near future and in awarding the
Series 1990 Bonds to the purchaser thereof, the Authority will
adopt a resolution supplementing this resolution and said
supplemental resolution, among other things, will set forth the
interest rate or rates that the bonds hereinafter authorized to be
issued will bear, will specify the maturities of said bonds which
will be designated as term bonds and subject to mandatory
redemption, will designate the Bond Registrar and Paying Agent for
said bonds, will designate the representative of the original
purchaser of said bonds and will provide for the actual issuance
and delivery of the bonds to the purchaser upon payment of the
agreed purchase price therefor by said purchaser; and
WHEREAS, it was provided in 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, upon meeting
certain terms and conditions, which are, in part, as follows:
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"(a) None of the Series 1989 Bonds or any Additional
Bonds are in default as to principal and interest; the
Authority -is in compliance with the terms and conditions of
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 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 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
this 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 provided in the Original Resolution, it is now
necessary that the Original Lease be amended to reflect the
issuance of the proposed Series 1990 Bonds and the increase in the
Basic Lease Payments necessitated thereby, all as more fully set
forth in that certain proposed Amended and Restated Lease Contract,
dated as of September 1, 1989 (hereinafter sometimes referred to
as "Lease"); and
WHEREAS, prior to the actual issuance and delivery of the
Series 1990 Bonds hereinafter authorized to be issued, the
Authority will enter into a contract with a bank located in
Atlanta, Georgia, pursuant to which such bank will agree to act as
Paying Agent and as Bond Registrar for the Series 1990 Bonds
hereinafter authorized to be issued and to perform various
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functions with respect to the bonds, including, but not limited
to, the authentication of the bonds of this issue by the 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 1990 Bonds as same become
due and payable; and
WHEREAS, the Authority intends to issue additional revenue
bonds to provide funds to construct a new city hall and police and
fire station as Phase II of the Smyrna Master Plan and, in
addition, in order to provide for future additions, extensions and
improvements to the Leased Facilities, 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 Series
1989 Bonds and the Series 1990 Bonds hereinafter authorized to be
issued.
NOW, THEREFORE, BE IT RESOLVED by the Downtown Smyrna
Development Authority, and it is hereby resolved by authority of
the same, that the Authority enter into that certain Amended and
Restated Lease Contract, dated as of September 1, 1989 and said
Amended and Restated Lease Contract, 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 said Amended and -
Restated Lease Contract 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 said Amended and Restated Lease Contract 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
Amended and Restated Lease Contract is incorporated herein and made
a part hereof, subject to such changes, insertions or omission as
may be required to accomplish the undertaking contemplated by the
parties thereto and as same may be approved by the Chairman and the
execution of the Amended and Restated Lease Contract by the
officers of the Authority as herein authorized shall be conclusive
evidence of such approval.
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 Article I of the
Original Resolution shall be and are hereby supplemented and
amended effective as of the date of issuance and delivery of the
Series 1990 Bonds herein authorized to be issued, as follows:
"Additional Bonds$@ shall mean any revenue bonds of the
Authority ranking on a parity with the Series 1989 Bonds and the
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Series 1990 Bonds which may hereafter be issued pursuant to the
Resolution. -
"Basic Lease Payment" 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
any deficit in any preceding Basic Lease Payment.
"Bonds" shall mean any revenue bonds authorized by and issued
pursuant to the Resolution, including the outstanding Series 1989
Bonds, the Series 1990 Bonds and any Additional Bonds of the
Authority issued pursuant to the Resolution.
"Lease" or "Contract'$ means the 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.
"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.
'$Original Resolution, means that certain bond resolution of
the Authority adopted on September 5, 1989, as supplemented by the
resolution adopted on November 8, 1989 authorizing the issuance of
the Series 1989 Bonds.
IlResolution'l means the Original Resolution, as ratified,
reaffirmed, broadened and extended by the 1990 Resolution, and as
same may hereafter be supplemented from time to time.
111990 Resolution', means this bond resolution authorizing the
issuance of the Series 1990 Bonds.
"Series 1989 Bondsof means the $6,430,000 aggregate principal
amount of the Authority's Revenue Bonds, Series 1989 authorized to
be issued pursuant to the Original Resolution.
IlSeries 1990 Bonds$' means the $8,690,000 aggregate principal
amount of the Authority's Revenue Bonds, Series 1990 authorized to
be issued pursuant to the 1990 Resolution.
c:\docs\pf\c175865.02\re9o1
"Sinking Fund1l 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.
All of the other terms defined in Article I of the Original
Resolution, 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 1990 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. That all of the applicable terms, provisions and
conditions contained in Article V, Section 4 of- the Original
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 said
Original Resolution, revenue bonds in the aggregate principal
amount of $8,690,000 for the purpose of providing funds to finance,
in whole or in part, the cost of acquiring, constructing,
renovating and equipping public buildings and structures and
related facilities useful or desirable in connection therewith,
acquiring parking facilities or areas, making certain street and
road improvements deemed necessary or desirable, acquiring the
necessary property therefor, both real and personal, capitalizing
a portion of the interest accruing on said bonds prior to
completion of the undertaking now contemplated and to pay all
expenses necessary to accomplish the foregoing, in accordance or
substantially in accordance with the Capital Improvement Program
as hereinafter provided.
The revenue bonds shall be designated "Downtown Smyrna
Development Authority Revenue Bonds, Series 1990," shall be dated
February 1, 1990, 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 such rate or rates not exceeding
eight and one-half percent (8 1/2%) per annum in any year, all
interest payable August 1, 1990 and semiannually thereafter on the
1st days of February and August in each year, and the principal
shall mature (or be subject to mandatory sinking fund redemption)
on the 1st day of February, in the years and amounts, as follows:
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Year
Amount
Year
Amount
Year
Amount
1992
$ 30,000
2001
$255,000
2010
$470,000
1993
95,1000
2002
275,000
2011
505,000
1994
165,000
2003
290,000
2012
540,000
1995
175,000
2004
315,000
2013
580,000
1996
185,000
2005
335,000
2014
625,000
1997
195,000
2006
360,000
2015
670,000
1998
210,000
2007
385,000
2016
715,000
1999
225,000
2008
410,000
2000
240,000
2009
440,000
The principal of the Series 1990 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 1990 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 (15th) 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 1990 Bonds shall be payable in lawful money of the United
States of America.
Section 2. The Series 1990 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 1990 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 his 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
1990 Bonds. The validation certificate to be printed on the Series
1990 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 seal of such Court shall be imprinted thereon. In
case any officer whose signature shall appear on the Series 1990
Bonds shall cease to be such officer before delivery of the Series
1990 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 1990 Bonds, the
certificate of authentication and registration, form of assignment
and the certificate of validation to be endorsed upon the Series
1990 Bonds, shall be in substantially the following forms, with
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such variations, omissions and insertions
permitted by this resolution:
WE
c:\docs\p£\c175865.02\rnso1
as are required or
No. R-
BOND DATE:
February 1, 1990
S
UNITED STATES OF AMERICA
STATE OF GEORGIA
DOWNTOWN SMYRNA DEVELOPMENT
AUTHORITY REVENUE BOND,
SERIES 1990
MATURITY DATE: INTEREST RATE: CUSIP:
FOR VALUE RECEIVED, Downtown Smyrna Development Authority
(hereinafter sometimes referred to as 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
F • zZR
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
Atlanta, Georgia,
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, 1990 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 Bonds, Series 1990, in the aggregate
principal amount of $8,690,000, of like tenor, except as to
numbers, denominations, interest rates, dates of maturity and
redemption provisions (hereinafter sometimes referred to
collectively as the "Series 1990 Bonds"), issued for the purpose
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of providing funds to finance, in whole or in part, the cost of
acquiring, constructing, renovating and equipping the Leased
Facilities, acquiring the necessary property therefor, both real
and personal, to capitalize a portion of the interest accruing on
the Series 1990 Bonds prior to completion of the undertaking, and
to pay all expenses necessary to accomplish the overall undertaking
now contemplated. The Series 1990 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 Downtown Smyrna Development
Authority adopted on the 5th day of September, 1989, as
supplemented by a resolution adopted November 8, 1989 and by a
resolution adopted on the day of February, 1990', as
supplemented by a resolution adopted February 1990
(hereinafter sometimes referred to collectively as the
"Resolutions"). The Series 1990 Bonds rank on a parity as to the
lien on the revenues of the Authority derived from that certain
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 $6,430,000 principal amount of the Authority's Revenue
Bonds, Series 1989, heretofore issued pursuant to the resolution
of September 5, 1989, as supplemented November 8, 1989 (the "Series
1989 Bonds").. In addition to the Series 1989 Bonds and the Series
1990 Bonds (hereinafter sometimes referred to collectively as the
"Bonds") the Authority may issue, under certain terms and -
conditions as provided in the Resolutions, 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 Resolutions 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
Resolutions until this bond shall have been authenticated and
registered upon the bond registration book of the Authority kept
for that purpose by the Bond Registrar, which authentication and
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registration shall be evidenced by the execution by the manual
signature of a duly authorized officer 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 February,
1990.
(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 1990 Bonds described in the
resolution of February , 1990, as supplemented.
, as Bond Registrar
By:
Authorized Officer
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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 February, 1990, 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.
Clerk, Superior Court,
Cobb County, Georgia
(S E A L)
***********
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(THE FOLLOWING SHALL BE PRINTED ON THE BACK OF EACH SERIES 1990
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 1990 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
resolution of February , 1990.
The Authority and City of Smyrna (the "City") have entered
into the Lease, under which the Authority has leased the Leased
Facilities 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 fifty (50) years from the date
thereof, and in consideration thereof the City has obligated 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 Resolutions, 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 of September 5, 1989 for the account of the
Authority and deposited into the special fund created in the
resolution of September 5, 1989 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 Resolutions to the payment
of the principal of and interest on the Series 1989 Bonds, the
Series 1990 Bonds and any parity bonds hereafter issued pursuant
to the Resolutions.
This bond shall not be deemed to constitute a debt of the
State of Georgia or City of Smyrna, nor a pledge of the faith and
credit of said State or City, nor shall the State or City be
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c:%docs\pf%c175865.02%reso1
subject to any pecuniary liability hereon. This bond shall not be
payable from nor a charge upon any funds other than the revenues
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.
The Series 1990 Bonds may be redeemed prior to their
respective maturities, either in whole at any time or in part, at
the option of the Authority, on any Interest Payment Date in any
year, not earlier than February 1, 1999, from any moneys which may
be made available for such purpose as provided in the resolution
of February , 1990. 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 two percent (2%) of
such principal amount if redeemed on or prior to August 1, 1999;
one percent (1%) of such principal amount if redeemed thereafter
and on or prior to August 1, 2000, and at par without a premium if
redeemed thereafter and before maturity. If such Series 1990 Bonds
are called in part, then any such bonds so called for redemption -
shall be called in the inverse order of their maturities and if
less than a full maturity by lot or in such other manner as may be
designated by the Bond Registrar.
[PROVISIONS REQUIRING MANDATORY SINKING FUND REDEMPTION, IF
APPLICABLE]
Notice designating the Series 1990 Bonds (or the portion of
the principal amount of the Series 1990 Bonds in multiples of
$5,000) to be acquired by redemption, as aforesaid, shall be
mailed, postage prepaid, not less than thirty (30) days prior to
the redemption date, to all registered owners of the Series 1990
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 1990 Bonds
so designated for redemption after the redemption date.
To the extent and in the manner permitted by the Resolutions,
modifications, alterations, amendments, additions and recisions of
the provisions of the Resolutions, or of any resolution supple-
mental thereto or of the Bonds, may be made by the Authority with
the consent of the owners of at least sixty-five per cent (65%) of
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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 Resolutions and 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, and 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.
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
the within
appointing
this bond
the Bond
premises.
DATED
postal zip code of assignee
bond and all rights thereunder, hereby constituting and
attorney to transfer
on the bond registration books kept for such purpose by
Registrar, with full power of substitution in the
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 alternation
or enlargement or any change whatever.
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Section 3. Only those Series 1990 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 officer 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 officer of the Bond Registrar sign the
certificate of authentication and registration on all of the Series
1990 Bonds that may be issued hereunder at any one time. The
person in whose name any Series 1990 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. The Bond Registrar shall keep the bond
registration book of the Authority for the registration of the
Series 1990 Bonds and for the registration of transfers of the
Series 1990 Bonds as herein provided. The transfer of any Series
1990 Bond shall be registered upon the bond registration book upon
the surrender and presentation of the Series 1990 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 1990 Bond or Series 1990 Bonds so surrendered, a new Series
1990 Bond or Series 1990 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 1990 Bonds so surrendered
and of the same maturity. Any Series 1990 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 1990 Bonds of the same
maturity equal to the principal amount of the Series 1990 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 1990 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
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of exchanging or registering the transfer of Series 1990 Bonds
under this resolution.
Section 5. If any of the Series 1990 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. The Authority shall make all necessary and proper
provisions for the transfer and exchange of the Series 1990 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 1990 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 1990 Bonds at the -
earliest practicable time in accordance with the provisions of this
resolution. All Series 1990 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 1990 Bonds maintained by the Bond
Registrar.
Section 7. The Series 1990 Bonds shall stand on a parity and
shall be of equal dignity with the Series 1989 Bonds heretofore
issued in the principal amount of $6,430,000 pursuant to the
Original Resolution, and shall be secured by the lien created on
the revenues of the Authority pursuant to the Original Resolution
as the same is ratified, reaffirmed, broadened and extended by this
resolution, just as if said Series 1989 Bonds and the Series 1990
Bonds had been issued simultaneously under the same resolution.
Section'8. The Series 1990 Bonds may be redeemed at the
option of the Authority in whole at any time or in part on any
interest payment date with respect thereto in any year not earlier
than February 1, 1999, 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 1990
Bonds shall be made by the payment of the principal amount of the
bonds to be redeemed and accrued interest thereon to date of
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redemption, together with a premium of two percent (2%) of such
principal amount if redeemed on or prior to August 1, 1999, one
percent (1%) of -such principal amount if redeemed thereafter and
on or prior to August 1, 2000, and at par without a premium if
redeemed thereafter and before maturity. If the Series 1990 Bonds
are called for optional redemption in part, then any Series 1990
Bonds so called for redemption shall be called in inverse order of
their maturities and if less than a full maturity by lot or in such
other manner as may be designated by the Bond Registrar. The
Series 1990 Bonds may be subject to mandatory sinking fund
redemption as may be set forth in the resolution supplementing this
resolution.
If less than all of the Series 1990 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 1990 Bonds in the
denomination of $5,000 each and shall assign separate numbers to
each for the purpose of determining the Series 1990 Bonds or the
portion of such Series 1990 Bonds in a denomination greater than
$5,000 to be redeemed by lot. With respect to any Series 1990 Bond
called for partial redemption, the registered owner thereof shall
surrender such bond to the Bond Registrar in exchange for one or
more Series 1990 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 (45th) day next preceding each optional redemption date if
such option is exercised with its certificate setting forth the
Series 1990 Bonds that have been selected for optional redemption,
either in whole or in part on such date. Not less than thirty (30)
days before any date upon which any such redemption is to be made
a notice of redemption signed by a duly authorized officer of the
Bond Registrar on behalf of the Authority designating the Series
1990 Bonds to be redeemed -(in whole or in part) shall be mailed,
postage prepaid, to all registered owners of the Series 1990 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 1990 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 1990 Bonds so designated for
redemption after the redemption date.
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 Series 1989 Bonds, the
Series 1990 Bonds or credited against a Basic Lease Payment) and
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for sinking fund purposes, the Series 1990 Bonds in the open market
at a price not exceeding the callable price. Any such Series 1990
Bonds so purchased cannot be reissued and shall be cancelled.
Notice having been given in the manner and under the
conditions hereinabove provided, the Series 1990 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 1990 Bonds so designated for redemption,
interest on the Series 1990 Bonds so designated for redemption
shall cease to accrue after the redemption date.
Section 9. From the proceeds derived from the sale of the
Series 1990 Bonds, including accrued interest to date of delivery,
the following payments shall be made, simultaneously with the
issuance and delivery of said Series 1990 Bonds, to the extent and
in the manner herein set forth:
(a) The accrued interest received on the Series 1990
Bonds and capitalized interest shall be deposited into the
Sinking Fund to be used and applied toward the payment of the
interest on the Series 1990 Bonds coming due on August 1,
1990.
(b) Such amount of the proceeds as may be necessary
shall be retained by the original purchaser of the Series 1990
Bonds and used and applied by it at the direction of the
Authority to the payment of costs and expenses of the
undertaking herein contemplated and any surplus remaining
after the payment of such expenses shall be deposited into the
Project Fund.
(c) The balance of the proceeds so received shall be
deposited into the Project Fund hereinafter described.
Smyrna Bank and Trust Co., Smyrna, Georgia, is hereby
redesignated as Project Fund Depository for the proceeds from the
sale of the Series 1990 Bonds.
The moneys so deposited into the Project Fund shall be held,
maintained, invested and disbursed as provided in Article IV,
Sections 2 through 4, inclusive, of the Original Resolution, and
in accordance with the terms and conditions set forth in the Lease,
and said terms and conditions of the Original Resolution are hereby
declared applicable to the Series 1990 Bonds and for the purpose
of making same applicable, the Authority does hereby reaffirm and
adopt verbatim herein, except that said Article is broadened and
extended to provide for the improvements in accordance or
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substantially in accordance with the Capital Improvement Program
and otherwise as required by this resolution and the Lease.
Section 10. 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 said 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.
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 this resolution.
As provided in Section 2 of Article V of the Original
Resolution, 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.
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 Series 1989 Bonds
and the Series 1990 Bonds pursuant to the provisions of the
Original Resolution as hereby ratified, reaffirmed, broadened and
extended.
Section 11. The Authority covenants and agrees that it will
not exercise the privilege provided in Article V, Section 4 of the
Original Resolution, of issuing Additional Bonds ranking as to lien
on the Basic Lease Payments or the Lease on a parity with the
Series 1989 Bonds and the Series 1990 Bonds, unless or until all
of the following conditions are met:
(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
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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 Payment 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.
(f) Such Additional Bonds and all proceedings relative
thereto, and the security therefor, shall be validated as
prescribed by law.
Section 12. All of the terms, covenants, conditions and
provisions of Article V of the Original Resolution not herein
specifically referred to are hereby declared applicable to and are
broadened and extended so as to cover the Series 1990 Bonds and any
future issue or issues of parity bonds therewith and are hereby
ratified and reaffirmed and are hereby adopted and shall for all
purposes apply to the Series 1990 Bonds as if said bonds had been
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originally issued under authority of the Original Resolution
simultaneously with the Series 1989 Bonds.
Section 13. The Authority hereby covenants and agrees that
it will not, subsequent to the date of the issuance and delivery
of the Series 1990 Bonds, intentionally use any portions of the
proceeds of the Series 1990 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 Section 141
to 149, inclusive, of the Code.
Section 14. The Chairman and Secretary and Treasurer of the
Authority are authorized and directed to execute, for and on behalf
of the Downtown Smyrna Development 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 1990 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 1990 Bonds.
Section 15. All of the applicable terms, covenants,
conditions and provisions of Article VI, Article VII, Article VIII
and Article IX and each Section and covenant thereof of the
Original Resolution not herein specifically referred to are hereby
declared applicable and are broadened and extended so as to cover
the Series 1990 Bonds issued hereunder and are hereby ratified and
reaffirmed as so extended and said terms, covenants, conditions and
provisions shall apply, for all purposes, to the Series 1990 Bonds
as if said bonds had been originally issued under the authority of
the Original Resolution, simultaneously with the Series 1989 Bonds.
Section 16. The Authority does hereby approve and accept the
terms of the 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 17. The Authority does hereby designate the
$8,690,000 Downtown Smyrna Development Authority Revenue Bonds,
Series 1990, dated February 1, 1990, being issued and delivered
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pursuant to this resolution as "qualified tax-exempt obligations"'
within the meaning of Section 265(b)(3) of the Code.
Section 18. 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 1990 Bonds.
Section 19. The Authority, after the Series 1990 Bonds have
actually been sold, shall adopt a resolution supplementing this
resolution and will specify in said supplemental resolution the
interest rate or rates per annum which the Series 1990 Bonds shall
bear, will designate the Bond Registrar and Paying Agent for the
Series 1990 Bonds, will provide for mandatory sinking fund
redemption if requested by the original purchaser of the Series
1990 Bonds and will provide for the actual sale, issuance, and
delivery of the Series 1990 Bonds upon payment therefor by the
purchaser thereof. A copy of said supplemental resolution duly
certified to by the Secretary and Treasurer of the Authority shall
be promptly delivered to the City and the receipt of said
supplemental resolution shall be acknowledged by the Mayor and
Council of the City of Smyrna.
Section 20. The provisions of this resolution shall
constitute a contract by and between the Authority, the City and
the owners of the Series 1989 Bonds and the Series 1990 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 1990 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 Original Resolution 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 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 bondholders.
Section 21. The Series 1990 Bonds herein authorized shall be
validated in the manner provided by law, and to that end notice of
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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 22. 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.
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b
SECRETARY AND TREASURER'S CERTIFICATE
GEORGIA, COBB COUNTY.
I, Willouise C. Spivey, Secretary and Treasurer of the Downtown
Smyrna Development Authority, DO HEREBY CERTIFY that the foregoing
pages constitute a true and correct copy of the resolution adopted
by said Authority at an open public meeting duly called and
lawfully assembled at 7 P.M., on the 5th day of February, 1990
authorizing the issuance of $8,690,000 principal amount of Downtown
Smyrna Development Authority Revenue Bonds, Series 1990, the
original of said resolution being duly recorded in the Minute Book
of said Authority, which Minute Book is in my custody and control.
I do hereby further certify that the following members of the
Authority were present at said.meeting:
A. Max Bacon James A. Wilson
William H. Black Charles N. Woods
C. J. Fouts
Willouise C. Spivey
and that the following members were absent:
E. Alton Curtis Janice C. Pitts
and that said resolution was duly adopted by a vote of
Aye 6 Nay 0
WITNESS my hand and the official seal of the Downtown Smyrna
Development Authority, this the 5th day of February, 1990.
Secretary and TkAasure
`
(S
E
A
L)
r"
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