03-22-1990 Regular MeetingMarch 22, 1990
The Downtown Smyrna Development Authority met at Smyrna City Hall on March
22, 1990 at 7:30 p.m.
Those attending were:
A. Max Bacon, Chairman
Hubert Black
Alton Curtis
Willouise Spivey
C. J. Fouts
Charles "Pete" Wood
Jim Pitts
Absent:
Jimmy Wilson
Also present was Attorney Charles E. Camp, Gordon Mortin with Lex Jolley &
Company, City Clerk Melinda Dameron and Linda Reycoff with the Atlanta
Journal/Constitution.
Gordon Mortin presented the Resolution to be adopted tonight which is
supplemental to the Resolution adopted at the last meeting authorizing
issuance of the bonds. This Resolution specifies the interest rates and
designates Bank South as Bond Registrar and Paying Agent for the 1990
Bonds. Net interest cost of the bonds will be 7.31%, varying from 6.1% in
1992 to 7 3/8% in 2016.
Mr. Mortin presented the budgeted expenses associated with the issuance
and stated the Resolution adopted tonight will authorize Lex Jolley and
Company to pay those expenses. The bond counsel fee is correct and
appropriate for this transaction since there were problems with the
validation. In view of the recent publicity concerning bond counsel fees,
Chuck Camp stated he did represent the City and Authority in these
transactions which could provide a conflict of interest. If a conflict
should arise, however, Mr. Camp said he would advise both parties. Alton
Curtis made a motion the Authority acknowledge the possibility of
conflict with the understanding that both parties be notified immediately
if a conflict should be arise. Hubert Black seconded the motion which
carried 6-0.
Alton Curtis made a motion the Resolution presented tonight be approved
with the Chairman and Secretary authorized to execute the bond purchase
agreement. C. J. Fouts seconded the motion which carried 6-0.
Alton Curtis made a motion that Charles "Pete" Wood be reaffirmed as
Assistant Secretary to the Authority. Jim Pitts seconded the motion which
carried 5-0, with Mr. Wood abstaining.
Pete Wood made a motion the minutes from February 5, 1990 be approved as
submitted. Jim Pitts seconded the motion which carried 6-0.
Mayor Bacon gave a progress report on land acquisition for the downtown
redevelopment and with no further business, meeting adjourned at 8:15 p.m.
BOND PURCHASE AGREEMENT
$8,690,000
DOWNTOWN SMYRNA DEVELOPMENT AUTHORITY (GEORGIA)
REVENUE BONDS, SERIES 1990
March 22, 1990
Downtown Smyrna Development Authority
Smyrna, Georgia
Mayor and City Council
City of Smyrna, Georgia
Ladies and Gentlemen:
On the basis of the representations, warranties and
covenants contained in this Bond Purchase Agreement, and
upon the terms and conditions contained in this Bond
Purchase Agreement, the underwriter listed in Exhibit A
hereto (the "Underwriter"), hereby offers to purchase from
the Downtown Smyrna Development Authority (the "Issuer")
$8,690,000 in aggregate principal amount of its revenue
bonds designated "Downtown Smyrna Development Authority
Revenue Bonds, Series 1990" (the "Bonds") to be issued under
and pursuant to a Bond Resolution adopted on September 5,
1989, as ratified, reaffirmed, supplemented and amended by
Supplemental Bond Resolutions adopted on November 8, 1989,
February 5, 1990\and March 22, 1990 (the "Bond Resolution"),
and hereby offers to enter into this Bond Purchase Agreement
with the Issuer and the City of Smyrna, Georgia (the
"City"), which will become binding upon the Issuer, the
City, and the Underwriter upon the Issuer's and the City's
validly authorized acceptance by execution of this Bond
Purchase Agreement and its delivery to the Underwriter at or
prior to 8:00 p.m., Atlanta, Georgia time, on March 22,
1990.
SECTION 1. BACKGROUND
Pursuant to the Bond Resolution, the Issuer has autho-
rized the issuance and delivery of the Bonds. The Bonds
will be issued under and secured by the Bond Resolution.
The proceeds of the sale of the Bonds will be used to
finance the acquisition, construction, and equipping of the
Issuer's downtown redevelopment project (the "Project").
The Project will be leased to the City pursuant to a Lease
Contract, dated as of September 1, 1989 (the "Lease"),
between the Issuer and the City, pursuant to which the City
has agreed to pay rentals sufficient in amount and time to
pay the principal of, premium, if any, and interest on the
Bonds when due. The obligation of the City to make the
rental payments required by the Lease is a general obliga-
tion of the City to which its full faith and credit and
taxing power are pledged.
As security for the payment of the principal of,
premium, if any, and interest on the Bonds, the Issuer has
pledged and assigned its right, title and interest in and to
the Lease and the rental payments to be made thereunder for
the benefit of the owners of the Bonds, pursuant to the Bond
Resolution.
With the consent of the Issuer and the City, the
Underwriter has distributed a Preliminary Official
Statement, dated March 13, 1990 (the "Preliminary Official
Statement"), relating to the Bonds, in connection with the
marketing of the Bonds. The Bonds will be offered for sale
by the Underwriter pursuant to a definitive Official
Statement, dated March 22, 1990 (the "Official Statement"),
relating to the Bonds. Capitalized terms used herein and
not defined shall have the meaning assigned to such terms in
the Bond Resolution and the Lease.
SECTION 2. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF
THE ISSUER
By the Issuer's acceptance hereof it hereby represents
and warrants to, and covenants and agrees with, the Under-
writer that:
(a) It is a public corporation duly created and
validly existing under the laws of the State of
Georgia. It is authorized by virtue of the laws
of the State of Georgia, including 1989 Georgia
Laws 4382 et sect., as amended, entitled "Downtown
Smyrna Development Authority Act" (the "Act"), to
issue the Bonds to provide funds to be used to
acquire, construct, and equip the Project and to
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pay all expenses necessary to accomplish the fore-
going, to lease the Project to the City and to
charge and collect rent therefor, and to be the
pledgor and assignor as provided in the Bond
Resolution.
(b) It has complied with all provisions of the Con-
stitution and laws of the State of Georgia with
respect to the consummation of, and has full power
and authority to consummate, all transactions con-
templated by this Bond Purchase Agreement, the
Bonds, the Bond Resolution, the Lease, and any and
all other agreements relating thereto and to
issue, sell and deliver the Bonds to the Under-
writer on behalf of the Issuer as provided herein
subject to the Bonds being validated by the
Superior Court of Cobb County, Georgia.
(c) By the Bond Resolution duly adopted by it at a
meeting duly called and held, it has duly and
validly authorized the issuance and sale of the
Bonds and the execution and delivery of the Lease
and this Bond Purchase Agreement and any other
agreements relating thereto.
(d) The information contained in the Preliminary
Official Statement and in the Official Statement,
and in any amendment or supplement that may be
authorized for use by the Issuer with respect to
the Bonds, except for the information relating to
the City, is and as of the Closing Time (as
hereinafter defined) will be, complete, accurate,
true, and correct and does not contain and will
not contain any untrue statement of a material
fact and does not omit and will not omit to state
a material fact necessary in order to make the
statements therein made, in light of the circum-
stances under which they were made, not
misleading. The Issuer has reviewed the Official
Statement and consents to the use of the Official
Statement by the Underwriter to offer and sell the
Bonds. The Issuer shall execute and deliver at
least fifteen (15) copies of the Official State-
ment to the Underwriter simultaneously with the
execution and delivery of this Bond Purchase
Agreement.
(e) Prior to the Closing Time, the Issuer will. have
duly and validly authorized all necessary action
to be taken by it for: (i) the issuance and sale
of the Bonds upon the terms set forth herein and
in the Bond Resolution and the Official Statement;
(ii) the passage and approval of the Bond Resolu-
tion providing for the issuance of and security
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for the Bonds (including the pledge by the Issuer
of the payments to be -received pursuant to the
Lease sufficient to pay the principal of, premium,
if any, and interest on the Bonds) and appointing
Bank South, N.A. as paying agent and bond regis-
trar for the Bonds; (iii) the lease of the Project
to the City pursuant to the Lease, (iv) the
approval of the Official Statement and its use by
the Underwriter in the public offering and sale of
the Bonds and the execution of the Official State-
ment by the Chairman or other authorized officer
of the Issuer; (v) the execution, delivery,
receipt and due performance of this Bond Purchase
Agreement, the Bonds, the Bond Resolution, the
Lease, and any and all such other agreements and
documents as may be required to be executed,
delivered and received by the Issuer in order to
carry out, give effect to and consummate the
transactions contemplated hereby and by the Bond
Resolution and the Official Statement; and (vi)
the carrying out, giving effect to and consumma-
tion of the transactions contemplated hereby and
by the Bond Resolution and the Official Statement.
This Bond Purchase Agreement and the Lease, when
executed by the other parties thereto on the
Closing Date (as hereinafter defined), will have
been duly and validly executed and delivered by
the Issuer, will be in full force and effect as to
the Issuer, and will constitute the legal, valid,
binding, and enforceable obligations of the
Issuer, enforceable in accordance with their
terms, except as limited by applicable bankruptcy,
reorganization, or other similar laws affecting
the enforcement of creditors' rights generally and
by general principles of equity affecting
remedies. The Bonds, when issued, delivered, and
paid for as herein and in the Bond Resolution
provided, will have been duly and validly autho-
rized and issued and will constitute valid and
binding special or limited obligations of the
Issuer enforceable in accordance with their terms
and provisions and entitled to the benefits and
security of the Bond Resolution. Executed
counterparts of the Bond Resolution and the Lease
and ten executed counterparts of the Official
Statement will be delivered to the Underwriter by
the Issuer at the Closing Time.
(f) There is no action, suit, proceeding, inquiry or
investigation at law or in equity or before or by
any court, public board or body pending or, to the
knowledge of the Issuer, after making due inquiry
with respect thereto, threatened against or
affecting the Issuer, or, to the Issuer's
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knowledge, after making due inquiry with respect
thereto, is there any basis therefor, wherein an
unfavorable decision, ruling or finding would
adversely affect the transactions contemplated
hereby or by the Official Statement or the valid-
ity of the Bonds, the Bond Resolution, the Lease,
this Bond Purchase Agreement or any agreement or
instrument to which the Issuer is a party or by
which the Issuer is bound and which is used or
contemplated for use in the consummation of the
transactions contemplated hereby or by the
Official Statement.
(g) To the best of the knowledge of the Issuer, the
Issuer is not in breach of or default under its
organic documents, any court or administrative
regulation, decree, order in any proceeding in
which the Issuer was a party, or any agreement,
note, resolution, indenture, mortgage, deed of
trust, lease, or other instrument to which the
Issuer is subject or by which the Issuer is bound
which materially and adversely affects the
transactions contemplated hereby and by the Bond
Resolution and the Official Statement. The
consent to the use of the Official Statement and
the execution and delivery of this Bond Purchase
Agreement, the Lease, the Bonds, the Bond
Resolution, and the other agreements contemplated
hereby and by the Bond Resolution and the
compliance with the provisions thereof will not
conflict with or constitute on the Issuer's part a
breach of or a default under the Issuer's organic
documents or under any existing law, court or
administrative regulation, decree, or order, or
any agreement, note, resolution, indenture,
mortgage, deed of trust, lease, or other instru-
ment to which the Issuer is subject or by which
the Issuer is bound. No approval or other action
by a governmental authority is required in
connection with the execution and delivery by the
Issuer of the Bonds, the Bond Resolution, the
Lease, or this Bond Purchase Agreement, or in
connection with the performance by the Issuer of
its obligations hereunder or thereunder, which has
not been previously obtained or accomplished.
(h) The Issuer will not knowingly take or omit to take
any action, which action or omission will in any
way cause the proceeds from the sale of the Bonds
to be applied in a manner other than as provided
in the Bond Resolution or which will cause the
interest on the Bonds to become includable in the
gross income of the owners thereof for federal
income tax purposes.
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(i) The Issuer will cooperate with the Underwriter in
the qualification of the Bonds for offering and
sale and the determination of their eligibility
for investment under the laws of such jurisdic-
tions as the Underwriter shall designate;
provided, however, the Issuer shall not be
required to register as a dealer or broker in any
such jurisdiction, nor execute a general consent
to service of process or qualify to do business in
connection with any such qualification of the
Bonds in any such jurisdiction.
(j) The Issuer will notify the Underwriter for the
period from the date hereof until the expiration
of 90 days after the Closing Date of any event
which occurs and comes to the Issuer's attention,
which event materially and adversely affects the
Issuer, the City, or the transactions contemplated
by the Official Statement and which would cause
the Official Statement to contain an untrue state-
ment of a material fact or to omit to state a
material fact which should be included therein for
the purposes for which the Official Statement was
to be used or which is necessary in order to make
the statements therein, in light of the circum-
stances under which they were made, not
misleading, and, if in the opinion of the Issuer
or the Underwriter, a change in the information
contained in the Official Statement is required in
order to make the statements therein made true and
not misleading or to make the Official Statement
comply with any applicable state securities law in
connection with the offering of the Bonds, such
change shall be made, and the corrected informa-
tion shall be supplied to the Underwriter for
distribution to the purchasers of the Bonds.
Thereafter, this Bond Purchase Agreement shall
refer to such corrected information.
(k) The Issuer has not been notified of any listing or
proposed listing by the Internal Revenue Service
to the effect that it is a bond issuer whose arbi-
trage certifications may not be relied upon.
(1) Any certificate signed by any of the Issuer's
authorized officers and delivered to the Under-
writer shall be deemed a representation and
warranty by the Issuer to the Underwriter as to
the statements made therein.
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(m) The Issuer deemed and deems final the Preliminary
Official Statement *as of its date, except for the
omission of the offering prices, interest rates,
selling compensation, delivery date, ratings,
aggregate principal amount, and principal amount
per maturity.
(n) As of the Closing Date, the Issuer will have good
and marketable title to the Project, and the
owners of the bonds secured by the Bond Resolution
will have received a valid and effective first and
prior lien on the Lease and the rental payments to
be made thereunder.
(o) The Issuer acknowledges and agrees that these
representations and warranties are made to induce
the Underwriter to purchase the Bonds, and that
such representations and warranties and any other
representations and warranties made by the Issuer
to the Underwriter are made for the benefit of the
ultimate purchasers of the Bonds and may be relied
upon by said purchasers.
SECTION 3. REPRESENTATIONS, WARRANTIES, AND AGREEMENTS OF
THE CITY.
By the City's acceptance hereof it hereby represents
and warrants to, and covenants and agrees with, the
Underwriter that:
(a) The City is a municipal corporation duly created
and validly existing under the laws of the State
of Georgia. It is authorized by virtue of the
laws of the State of Georgia, including Chapter 44
of Title 36 of the Official Code of Georgia
Annotated, as amended, known as the "Redevelopment
Powers Law," to execute and deliver the Official
Statement and to enter into and execute, deliver,
and perform the Lease and this Bond Purchase
Agreement. The City has complied with all provi-
sions of the Constitution and laws of the State of
Georgia with respect to the consummation of, and
has full power and authority to consummate, all
transactions contemplated by the Lease, this Bond
Purchase Agreement, and any and all other agree-
ments relating thereto.
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(b) The City has duly authorized by all necessary
action the approval of the Official Statement and
its use by the Underwriter in the public offering
and sale of the Bonds and the execution of the
Official Statement by the Mayor or other autho-
rized official of the City and the execution,
delivery, and performance of the Lease and this
Bond Purchase Agreement, and no approval,
authorization, consent, or other action by any
governmental body (other than consents and
approvals already obtained) is required in connec-
tion with the execution or performance by the City
of the same, and nether the execution nor the
performance of the Lease or this Bond Purchase
Agreement or the consent to the use of the
Official Statement will conflict with, breach, or
violate the City's organic documents or any
indenture, mortgage, deed of trust, lease, note,
judgment, decree, order, lien, statute, ordinance,
resolution, rule, regulation, plan, agreement, or
other instrument or restriction to which the City
is a party or by which it or its property may be
subject or bound. This Bond Purchase Agreement
and the Lease, when executed by the other parties
thereto at or before the Closing Time (as
hereinafter defined), will have been duly and
validly executed and delivered by the City, will
be in full force and effect as to the City, and
will constitute the legal, valid, binding, and
enforceable obligations of the City, enforceable
in accordance with their terms, except as limited
by applicable bankruptcy, reorganization,
insolvency, or other similar laws affecting the
enforcement of creditor's rights generally and by
general principles of equity affecting remedies.
(c) The acquisition, construction, and equipping of
the Project in accordance with the plans and
specifications described in the Lease and the
operation of the Project is permitted under appli-
cable zoning ordinances and applicable building
codes; the City agrees to acquire, construct, and
equip the Project in accordance with said plans
and specifications as amended in accordance with
the Lease and to make any modifications which may
be required by the authorized building officials
to comply with the applicable requirements of said
building codes; the City warrants that as of the
Closing Date all required building permits and
zoning and planning approvals required to commence
construction will be issued and knows of no reason
why all required building permits and zoning and
planning approvals cannot or will not be issued in
a timely manner.
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(d) The City is not in material violation of its
organic documents and is not in violation of any
material provision of or in default under any
indenture, mortgage, deed of trust, lease,
indebtedness, agreement, instrument, lien,
judgment, decree, order, statute, ordinance,
resolution, rule, regulation, plan, or other
restriction to which it is a party or by which it
or its property is subject or bound, which viola-
tion will have any material adverse effect on the
financing contemplated by the Official Statement,
nor will any such violation result in any material
adverse effect upon the operations, properties,
assets,*liabilities, or condition (financial or
other) of the City.
(e) There is no pending or, to the best of the City's
knowledge, after making due inquiry with respect
thereto, threatened, action, suit, proceeding,
inquiry, or investigation, before or by any court,
public board, or body against the City, nor, to
the best knowledge of the City, is there any basis
therefor, which would materially and adversely
affect the transactions contemplated by the Offi-
cial Statement or which would materially and
adversely affect the Bonds, the Lease, or this
Bond Purchase Agreement, the acquisition,
construction, or equipping of the Project, or the
operation of the Project or which might result in
any material adverse change in the operations,
properties, assets, liabilities, or condition
(financial or other) of the City, or which affects
the information contained in the Official
Statement.
(f) To the best knowledge of the City, no legislation,
ordinance, rule, or regulation has been enacted by
any governmental body, department, or agency of
the State of Georgia nor has any decision been
rendered by any court of competent jurisdiction in
the State of Georgia, which would materially and
adversely affect the transactions contemplated by
the Official Statement.
(g) The information contained in the Preliminary Offi-
cial Statement and in the Official Statement
relating to the City and in any amendment or
supplement that may be authorized for use by the
City with respect to the Bonds, including the
information contained in Appendices A, B, and C,
is, and as of the Closing Time (as hereinafter
defined) will be, complete, accurate, true, and
correct and does not contain and will not contain
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an untrue statement of a material fact and does
not omit and will not omit to state a material
fact necessary to make the statements therein
made, in light of the circumstances under which
they were made, not misleading. The City has
reviewed the Official Statement and consents to
the use of the Official Statement by the Under-
writer to offer and sell the Bonds. The City
shall execute and deliver at least fifteen (15)
copies of the Official Statement to the
Underwriter simultaneously with the execution and
delivery of the Bond Purchase Agreement.
(h) The City will notify the Underwriter for the
period from the date hereof until the expiration
of 90 days after the Closing Date of any material
adverse change in the business, properties, or
financial condition of the City, and of any event
which occurs and comes to the City's attention,
which event materially and adversely affects the
Issuer, the City, or the transactions contemplated
by the Official Statement and which would cause
the Official Statement to contain an untrue state-
ment of a material fact or to omit to state a
material fact which should be included therein for
the purposes for which the Official Statement was
to be used or which is necessary in order to make
the statements therein, in light of the circum-
stances under which they were made, not
misleading, and, if in the opinion of the City or
the Underwriter, a change in the information
contained in the Official Statement is required in
order to make the statements therein made true and
not misleading or to make the Official Statement
comply with any applicable state securities law in
connection with the offering of the Bonds, such
change shall be made, and the corrected informa-
tion shall be supplied to the Underwriter for dis-
tribution to the purchasers of the Bonds.
Thereafter, this Bond Purchase Agreement shall
refer to such corrected information.
(i) The City will cooperate with the Underwriter in
the qualification of the Bonds for offering and
sale and the determination of their eligibility
for investment under the laws of such jurisdic-
tions as the Underwriter shall designate;
provided, however, the City shall not be required
to register as a dealer or broker in any such
jurisdiction, nor to execute a general consent to
service of process or qualify to, do business in
connection with any such qualification of the
Bonds in any such jurisdiction.
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(j) Subsequent to the respective dates as of which
information is given in the Official Statement,
and prior to the Closing Date, except as set forth
in or contemplated by the Official Statement, (1)
the City has not incurred and shall not have
incurred any material liabilities or obligations,
direct or contingent, except in the ordinary
course of business and has not entered and will
not have entered into any material transaction not
in the ordinary course of business, (2) there has
not been and will not have been any change in the
long-term debt or decrease in the fund balances of
the City, (3) there has not been and will not have
been any material adverse change in the business
or the financial position or results of operations
of the City, (4) no loss or damage (whether or not
insured) to the property of the City has been or
will have been sustained which materially and
adversely affects the operations of the City, and
(5) no legal or governmental proceeding affecting
the City or the transactions contemplated by this
Bond Purchase Agreement has been or will have been
instituted or threatened which is material.
(k) Any certificate signed by any of its authorized
officials and delivered to the Underwriter shall
be deemed a representation and warranty by the
City to the Underwriter as to the statements made
therein.
(1) It will not knowingly take or omit to take any
action, which action or omission will in any way
cause the proceeds from the sale of the Bonds to
be applied in a manner other than as provided in
the Bond Resolution and the Lease or which would
cause the interest on the Bonds to become includ-
able in the gross income of the owners thereof for
federal income tax purposes.
(m) The City will send one copy of its audited finan-
cial statements annually to the Underwriter upon
request as soon as such financial statements
become available.
(n) The City deemed and deems final the Preliminary
Official Statement as of its date, except for the
omission of the offering prices, interest rates,
selling compensation, delivery date, ratings,
aggregate principal amount, and principal amount
per maturity.
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(o) The City acknowledges and agrees that these repre-
sentations and warranties are made to induce the
Underwriter to purchase the Bonds, and that such
representations and warranties and any other
representations and warranties made by the City to
the Underwriter are made for the benefit of the
ultimate purchasers of the Bonds and may be relied
upon by said purchasers.
SECTION 4. PURCHASE, SALE AND DELIVERY OF THE BONDS
On the basis of the representations, warranties and
covenants contained herein and in the other agreements
referred to herein, and subject to the terms and conditions
herein set forth, the Underwriter hereby agrees to purchase
from the Issuer at the Closing Time and the Issuer hereby
agrees to sell to the Underwriter at the Closing Time, the
Bonds at a price of 99.05% of the aggregate principal amount
thereof ($8,607,445), plus accrued interest from the date of
the Bonds to the date of payment and delivery. The
Underwriter, in its discretion, may permit other securities
dealers who are members of the National Association of
Securities Dealers, Inc. to assist in selling the Bonds. If
the Underwriter permits other securities dealers who are
members of the National Association of Securities Dealers,
Inc. to assist in selling the Bonds, the Underwriter shall
enter into a selected dealers agreement or selling agreement
with such other securities dealers.
The Bonds shall be issued under and secured as provided
in the Bond Resolution and shall be subject to redemption
and shall be otherwise as described and as set forth in the
Bond Resolution. The Bonds shall have the maturities and
interest rates as set forth on Exhibit B attached hereto.
Payment of the purchase price for the Bonds shall be
made by wire or check payable to the order of the Issuer at
the offices of Lex Jolley & Co., Inc., Atlanta, Georgia, at
10:00 a.m., local time, on April 10, 1990, or such other
place, time or date as shall be mutually agreed upon by the
Issuer, the City, and the Underwriter, against delivery of
the Bonds to the Underwriter or the persons designated by
the Underwriter. The date of such delivery and payment is
herein called the "Closing Date", and the hour. and date of
such delivery and payment is herein called the "Closing
Time." The delivery of the Bonds shall be made in defini-
tive form, bearing CUSIP numbers (provided neither the
printing of a wrong CUSIP number on any Bond nor the failure
to print a CUSIP number thereon shall constitute cause to
refuse delivery of any Bond) and registered in the name(s)
of such owner(s) as the Underwriter shall designate to the
Issuer, at least forty-eight (48) hours prior to the Closing
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Time. The Bonds shall be available for examination and
packaging at the offices of the Issuer by the Underwriter at
least 24 hours prior to the Closing Time and at the Closing
Time shall be delivered to the Underwriter or the persons
designated by the Underwriter.
SECTION S. CONDITIONS TO THE UNDERWRITER'S OBLIGATIONS
The Underwriter's obligations hereunder shall be sub-
ject to the due performance of and compliance by the Issuer
and the City with their obligations and agreements to be
performed hereunder at or prior to the Closing Time and to
the accuracy of and compliance with their representations
and warranties contained herein, as of the date hereof and
as of the Closing Time, and are also subject to receipt of
the following evidence and documents and satisfaction of the
following conditions, as appropriate, at or prior to the
Closing Time:
(a) The Bonds, the Lease, and the Bond Resolution
shall have been duly authorized, executed and
delivered by the respective parties thereto in the
form heretofore approved by the Underwriter with
only such changes therein as shall be mutually
agreed upon by the parties thereto and the
Underwriter, and shall be in full force and effect
on the Closing Date.
(b) At the Closing Time, the Underwriter shall
receive:
(i) The opinions, in form and substance satis-
factory to the Underwriter, dated as of the
Closing Date, (i) of Sutherland, Asbill &
Brennan, Atlanta, Georgia, Bond Counsel, in
substantially the forms attached hereto as
Exhibit C, (ii) Cochran, Camp & Snipes,
Smyrna, Georgia, counsel to the Issuer, in
substantially the form attached hereto as
Exhibit D, (iii) Cochran, Camp & Snipes,
Smyrna, Georgia, counsel to the City, in
substantially the form attached hereto as
Exhibit E, and (iv) Peterson Young Self &
Asselin, Atlanta, Georgia, counsel to the
Underwriter, in substantially the form
attached hereto as Exhibit F;
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A closing certificate of the Issuer, satis-
factory in form and substance to the Under-
writer, executed by the Chairman of the
Issuer, attested by the Secretary/Treasurer
of the Issuer, or any other duly authorized
officers satisfactory. to the Underwriter,
dated as of the Closing Date, to the effect
that: (A) the Issuer has duly performed and
satisfied hereunder or complied with all of
its obligations and conditions to be per-
formed at or prior to the Closing Time and
that each of its representations and
warranties contained herein have not been
amended, modified, or rescinded and is in
full force and effect and is true and
correct as of the Closing Time; (B) the
Issuer has authorized, by all necessary
action, the execution, delivery, receipt and
due performance of the Bonds, the Bond Reso-
lution, the Lease, and any and all such
other agreements and documents as may be
required to be executed, delivered,
received, and performed by it in order to
carry out, give effect to and consummate
the transactions contemplated hereby and by
the Bond Resolution and the Official
Statement; (C) no litigation is pending, or
to his knowledge, after making due inquiry
with respect thereto, threatened against the
Issuer, to restrain or enjoin the issuance
or sale of the Bonds or in any way
affecting any authority for or the validity
of the Bonds, the Bond Resolution, the
Lease, or the Issuer's existence or powers
or the Issuer's right to use the proceeds of
the Bonds as contemplated in the Bond
Resolution; (D) the execution, delivery,
receipt and due performance of the Bonds,
the Bond Resolution, the Lease, and the
other agreements contemplated hereby and by
the Bond Resolution and the Official
Statement under the circumstances contem-
plated thereby and the Issuer's compliance
with the provisions thereof will not
conflict with or constitute on the Issuer's
part a breach of or a default under any
agreement, indenture, mortgage, lease,
resolution, or other instrument to which the
Issuer is subject or by which the Issuer is
or may be bound and will not conflict with
or be in violation of any existing law,
court or administrative regulation, rule,
decree or order; and (E) to the Issuer's
knowledge after making due inquiry with
14
respect thereto, all information furnished
to the Underwriter for use in connection
with the marketing of the Bonds and the
information contained in the Official State-
ment, except for the portion relating to the
City, were, as of the respective dates
thereof and are as of the Closing Date true
in all material respects and do not contain
any untrue statement of a material fact or
omit to state a material fact necessary in
order to make the statements made therein,
in light of the circumstances under which
they were made, not misleading.
A closing certificate of the City, satisfac-
tory in form and substance to the
Underwriter, executed by the Mayor of the
City, attested by the City Clerk of the
City, or of any other duly authorized
officers of the City satisfactory to the
Underwriter, dated as of the Closing Date,
to the effect that: (A) since the date
hereof there has not been any material
adverse change in the business, properties,
financial position, or results of operations
of the City, whether or not arising from
transactions in the ordinary course of
business, other than as previously disclosed
in writing to the Underwriter and as
disclosed in the Official Statement, and
except in the ordinary course of business,
the City has not suffered or incurred any
material liability, other than as previously
disclosed in writing to the Underwriter and
as disclosed in the Official Statement, (B)
there is no action, suit, proceeding, or, to
the best of the official 's knowledge, after
making due inquiry with respect thereto, any
inquiry or investigation at law or in equity
or before or by any public board or body
pending or, to his knowledge after making
due inquiry with respect thereto, threatened
against or affecting the City or its
property or, to his knowledge after making
due inquiry with respect thereto, any basis
therefor, wherein an unfavorable decision,
ruling, or finding would adversely affect
the transactions contemplated hereby or by
the Bond Resolution or the validity or
enforceability of the Bonds, the Lease, or
this Bond Purchase Agreement, which have not
been previously disclosed in writing to the
Underwriter and which are not disclosed in
the Official Statement, (C) to his knowledge
15
after making due inquiry with respect
thereto, all information furnished to the
Underwriter for use in connection with the
marketing of the Bonds and the information
contained in the Official Statement pertain-
ing to the City and contained in Appendices
A, B, and C to the Official Statement, were,
as of the date thereof and are as of the
Closing Date true in all material respects
and do not contain any untrue statement of a
material fact or omit to state a material
fact necessary in order to make the
statements made therein, in light of the
circumstances under which they were made,
not misleading, (D) the City has duly
authorized, by all necessary action, the
execution, delivery, receipt, and due
performance of the Lease and this Bond
Purchase Agreement and any and all such
other agreements as may be required to be
executed, delivered, received, and performed
by the City to carry out, give effect to,
and consummate the transactions contemplated
by this Bond Purchase Agreement and the Bond
Resolution, (E) the City has duly performed
or complied with all of its obligations and
conditions to be performed and satisfied
hereunder at or prior to the Closing Date,
(F) the representations contained herein
have not been amended, modified, or
rescinded and are in full force and effect,
and the information and representations and
warranties contained herein are true and
correct, as of the Closing Date, and (G) the
execution, delivery, receipt and due perfor-
mance of the Lease and the other agreements
contemplated hereby and by the Official
Statement under the circumstances contem-
plated thereby and the City's compliance
with the provisions thereof will not
conflict with or constitute on the City's
part a breach of or a default under any
agreement, indenture, mortgage, lease or
other instrument to which the City is sub-
ject or by which the City is or may be bound
and will not conflict with or be in viola-
tion of any existing law, court or adminis-
trative regulation, rule, decree or order.
(iv) A Comfort Letter, dated the Closing Date, of
KPMG Peat Marwick, in substantially the form
attached hereto as Exhibit G.
16
(v) Letters confirming the Al/A+ ratings of
Moody's Investors Service, Inc. and Standard
& Poor's Corporation, respectively.
(vi) Such additional certificates and other
documents, agreements, and opinions as the
Underwriter and its counsel may reasonably
request to evidence performance of or com-
pliance with the provisions hereof and the
transactions contemplated hereby and by the
Bond Resolution and the Official Statement,
all such certificates and other documents to
be satisfactory in form and substance to the
Underwriter.
All opinions shall be addressed to the Underwriter, and
may also be addressed -to such other parties to whom the
giver of such opinion agrees. All certificates, if
addressed to any party, shall also be addressed to the
Underwriter. All such opinions, letters, certificates, and
documents shall be in compliance with the provisions hereof
only if they are in all material respects satisfactory to
the Underwriter and to counsel to the Underwriter, as to
which both the Underwriter and its counsel shall act
reasonably. If any condition of the Underwriter's
obligation hereunder to be satisfied prior to the Closing
Date is not so satisfied, this Bond Purchase Agreement may
be terminated by the Underwriter by notice in writing or by
telegram to the Issuer and the City. The Underwriter may
waive in writing compliance by the Issuer or the City of any
one or more of the foregoing conditions or extend the time
for their performance.
SECTION 6. THE UNDERWRITER'S RIGHT TO CANCEL
The Underwriter shall have the right to cancel the
Underwriter's obligation hereunder to purchase the Bonds by
notifying the Issuer and the City in writing or by telegram
of its election to do so between the date hereof and the
Closing Time, if at any time hereafter and prior to the
Closing Time:
(a) A committee of the House of Representatives or the
Senate of the Congress of the United States of
America (the "United States") or said House of
Representatives or Senate shall have pending
before it legislation introduced previous to the
Closing Time, which legislation, if enacted in its
form as introduced or as amended, would, in the
Underwriter's sole opinion, have the purpose or
effect of imposing federal income taxation upon
revenues or other income of the general character
17
to be derived by state and local governmental
units or by any similar body or upon interest
received on obligations of the general character
of the Bonds, or the Bonds, or which, in the
Underwriter's sole opinion, materially adversely
affects the market price of the Bonds;
(b) A tentative decision with respect to legislation
shall be reached by a committee of the House of
Representatives or the Senate of the Congress of
the United States or legislation shall be pending
or shall be favorably reported by such committee
or be introduced, by amendment or otherwise, in or
be passed by the House of Representatives or the
Senate, or recommended to the Congress of the
United States for passage by the President of the
United States, or be enacted by the Congress of
the United States, or an announcement or a
proposal for any such legislation shall be made by
a member of the House of Representatives or the
Senate of the Congress of the United States, or a
decision by a court established under Article III
of the Constitution of the United States or the
Tax Court of the United States shall be rendered,
or a ruling, regulation or order of the Treasury
Department of the United States or the Internal
Revenue Service shall be made or proposed having,
in the Underwriter's sole opinion, the purpose or
effect of imposing federal income taxation, or any
other event shall have occurred which, in the
Underwriter's sole opinion, results in or proposes
the imposition of federal income taxation, upon
revenues or other income of the general character
to be derived by state and local governmental
units or by any similar body or upon interest
received on obligations of the general character
of the Bonds, or the Bonds, or which, in the
Underwriter's sole opinion, materially adversely
affects the market price of the Bonds;
(c) Any legislation, ordinance, rule or regulation
shall be introduced in or be enacted or imposed by
any governmental body, department or agency of the
United States or of any state, or a decision by
any court of competent jurisdiction within the
United States or any state shall be rendered
which, in the Underwriter's sole opinion, materi-
ally adversely affects the market price of the
Bonds;
18
(d) A stop order, ruling, regulation or official
statement by, or on behalf of, the Securities and
s Exchange Commission or any other federal or state
governmental agency having jurisdiction of the
subject matter shall be issued or made to the
effect that the issuance, offering or sale of
obligations of the general character of the Bonds,
or the issuance, offering or sale of the Bonds,
including all underlying obligations, as contem-
plated hereby or by the Official Statement, is in
violation or would be in violation of any provi-
sion of the federal securities laws, including
without limitation the registration provisions of
the Securities Act of 1933, as amended and as then
in effect, or of the Securities Exchange Act of
1934, as amended and as then in effect, the state
securities laws, or the qualification provisions
of the Trust Indenture Act of 1939, as amended and
as then in effect;
(e) Legislation shall be introduced by amendment or
otherwise in, or enacted by, the Congress of the
United States, or a decision by a court estab-
lished under Article III of the Constitution of
the United States shall be rendered, to the effect
that obligations of the general character of the
Bonds, or the Bonds, including all the underlying
obligations, are not exempt from registration
under or from other requirements of the Securities
Act of 1933, as amended and as then in effect, or
the Securities Exchange Act of 1934, as amended
and as then in effect, or that the Bond Resolution
is not exempt from qualification under or from
other requirements of the Trust Indenture Act of
1939, as amended and as then in effect, or with
the purpose or effect of otherwise prohibiting the
issuance, offering, or sale of obligations of the
general character of the Bonds, or the Bonds, as
contemplated hereby and by the Official Statement;
(f) Any event shall have occurred, or information
becomes known, which, in the Underwriter's sole
opinion, makes untrue in any material respect any
statement or information furnished to the
Underwriter by the Issuer or the City for use in
connection with the marketing of the Bonds or any
material statement or information contained in the
Official Statement contains an untrue statement of
a material fact or omits to state a material fact
necessary in order to make the statements made, in
light of the circumstances under which they were
made, not misleading;
(g) Additional material restrictions not in force as
of the date hereof shall have been imposed upon
trading in securities generally by a governmental
authority or by any national securities exchange;
(h) The New York Stock Exchange or other national
securities exchange, or any governmental author-
ity, shall impose, as to the Bonds or obligations
of the general character of the Bonds, any mate-
rial restrictions not now in force, or increase
materially those now in force, with respect to the
extension of credit by, or the charge to the net
capital requirements of, underwriters;
(i) A general banking moratorium shall have been
established by federal, New York or Georgia
authorities;
(j) A war involving the United States shall have been
declared, or any conflict involving the armed
forces of the United States shall have escalated,
or any other national emergency relating to the
effective operation of government or the financial
community shall have occurred, which, in the
Underwriter's sole opinion, materially adversely
affects the market price of the Bonds; or
(k) Moody's Investors Service, Inc. or Standard &
Poor's Corporation shall withdraw their respective
Al/A+ ratings on the Bonds prior to the Closing
Time.
(1) A default has occurred with respect to the obliga-
tions of, or proceedings have been instituted
under the federal bankruptcy laws or any similar
state laws by or against, any state of the United
States or any city located in the United States
having a population in excess of one million
persons or any entity issuing obligations on
behalf of such a city or state.
(m) Any proceeding shall be pending, or to the
knowledge of the Underwriter, threatened, to
restrain, enjoin, or otherwise prohibit the
issuance, sale, or delivery of the Bonds by the
Issuer or the purchase, offering, sale, or distri-
bution of the Bonds by the Underwriter, or for any
investigatory or other proceedings under any
federal or state securities laws or the rules and
regulations of the National Association of
Securities Dealers, Inc. relating to the issuance,
sale, or delivery of the Bonds by the Issuer or
the purchase, offering, sale, or distribution of
the Bonds by the Underwriter.
20
SECTION 7. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO.
SURVIVE DELIVERY
All of the Issuer's and the City's representations,
warranties -and agreements shall remain operative and in full
force and effect (unless expressly waived in writing by the
Underwriter), regardless of any investigations made by the
Underwriter or on its behalf, and shall survive delivery of
the Bonds to the Underwriter and the resale by the Under-
writer of the Bonds.
SECTION S. PAYMENT OF EXPENSES
Unless the Issuer and the Underwriter otherwise agree,
all expenses and costs of issuance of the Bonds are to be
paid by the Issuer out of Bond proceeds. The Underwriter
shall withhold from the purchase price of the Bonds paid to
the Issuer pursuant to Section 2 hereof an amount equal to
the estimated expenses and costs of issuance of the Bonds,
as established in a written communication by the Underwriter
to the Issuer.
The Issuer and the City hereby authorize the Under-
writer to pay expenses and costs of issuance of the Bonds
from the amounts so withheld by the Underwriter. The Under-
writer agrees that it will provide to the Issuer an
accounting for such expenses and costs actually paid and
will return for deposit in the Construction Fund held by the
Issuer any amounts remaining after such expenses and costs
are paid. Should such expenses and costs exceed the esti-
mated expenses and costs withheld by the Underwriter, the
Issuer and the City agree to pay to the Underwriter the
amount of such deficiency.
SECTION 9. DELIVERY AND USE OF OFFICIAL STATEMENT
The Issuer and the City authorize the use and distribu-
tion of, and will make available, the Preliminary Official
Statement and the Official Statement for the use and
distribution by the Underwriter in connection with the sale
of the Bonds. The Issuer and the City shall deliver, or
cause to be delivered, to the Underwriter copies of the
final Official Statement in sufficient quantity to comply
with Rule 15c2 -12 (b) (4) promulgated under the Securities
Exchange Act of 1934, as amended, and the rules of the
Municipal Securities Rulemaking Board, upon the earlier of
(1) seven (7) business days after this Bond Purchase
21
Agreement is executed and delivered or (2) the date which
will allow such final Official Statement to accompany any
confirmation that requests payment from any customer.
SECTION 10. LIMITED OBLIGATIONS
The Underwriter acknowledges that the Bonds and. the
pecuniary obligations of the Issuer under this Bond Purchase
Agreement do not constitute a debt or pledge of the faith
and credit or the taxing power of the Issuer or the State of
Georgia or any political subdivision thereof, but are the
Issuer's special limited obligations payable solely from the
rentals received by the Issuer under the Lease. The City
represents and warrants to the Underwriter that its obliga-
tion to make the rental payments under the Lease is a
general obligation of the City to which its full faith and
credit and taxing power are pledged.
SECTION 11. INDEMNITY
The Issuer hereby agrees to indemnify and hold harmless
the Underwriter, together with each officer and member of
the Board of Directors of the Underwriter and each person
who controls the Underwriter within the meaning of either
the Securities Act of 1933, as amended, or the Securities
Exchange Act of 1934, as amended, from and against any and
all losses, claims, damages, liabilities, costs, and
expenses (including, without limitation, fees and disburse-
ments of counsel and other expenses incurred by them or
either of them in connection with investigating or defending
any loss, claim, damage, or liability or any suit, action,
or proceeding, whether or not resulting in liability), joint
or several, to which they or any of them may become subject
under the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, or any other applicable
statute or regulation,'whether federal or state, or at com-
mon law or otherwise, insofar as such losses, claims,
damages, liabilities, costs, and expenses (or any suit,
action, or proceeding in respect thereof) arise out of or
are based upon any untrue or misleading statement or alleged
untrue or misleading statement of a material fact contained
in the Official Statement or in any amendment or supplement
thereto, except for the portion relating to the City, or
arise out of or are based upon the omission or alleged omis-
sion to state therein a fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances under which such statements were made, not
misleading, provided, however, the Issuer will not be liable
in any such case to the extent that any such loss, claim,
damage, liability, cost, or expense arises out of or is
based upon any untrue statement or alleged untrue statement
22
or omission or alleged omission made therein in reliance
upon and in conformity with written information furnished by
the Underwriter specifically for use inconnection with the
preparation thereof. This indemnity agreement will be in
addition to any liability which the Issuer may otherwise
have.
The City hereby agrees to indemnify and hold harmless
the Underwriter, together with each officer and member of
the Board of Directors of the Underwriter and each person
who controls the Underwriter within the meaning of either
the Securities Act of 1933, as amended, or the Securities
Exchange Act of 1934, as amended, from and against any and
all losses, claims, damages, liabilities, costs, and
expenses (including, without limitation, fees and disburse-
ments of counsel and other expenses incurred by them or
either of them in connection with investigating or defending
any loss, claim, damage, or liability or any suit, action,
or proceeding, whether or not resulting in liability), joint
or several, to which they or any of them may become subject
under the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, or any other applicable
statute or regulation, whether federal or state, or at com-
mon law or otherwise, insofar as such losses, claims,
damages, liabilities, costs, and expenses (or any suit,
action, or proceeding in respect thereof) arise out of or
are based upon any untrue or misleading statement or alleged
untrue or misleading statement of a material fact contained
in the Official Statement relating to the City, including
the information contained in Appendices A, B, and C, or in
any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein
a fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under
which such statements were made, not misleading, provided,
however, the City will not be liable in any such case to the
extent that any such loss, claim, damage, liability, cost,
or expense arises out of or is based upon any untrue state-
ment or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity
with written information furnished by the Underwriter
specifically for use in connection with the preparation
thereof. This indemnity agreement will be in addition to
any liability which the City may otherwise have.
Promptly after receipt by any party entitled to
indemnification under this paragraph of notice of the com-
mencement of any suit, action, or proceeding, such indemni-
fied party shall, if a claim in respect thereof is to be
made against the indemnifying party under this paragraph,
notify the indemnifying party in writing of the commencement
thereof, but the omission so to notify the indemnifying
party shall not relieve it from any liability which it may
have to any indemnified party otherwise than under this
23
paragraph or from any liability under this paragraph unless
the failure to provide notice prejudices the defense of such
suit, action, or proceeding. In case any such action is
brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemni-
fying party shall be entitled, but not obligated, to partic-
ipate therein, and to the extent that it may elect by writ-
ten notice delivered to the indemnified party, promptly
after receiving the aforesaid notice from such indemnified
party, to assume the defense thereof, with counsel satisfac-
tory to such indemnified party; provided, however, if the
defendants in any such action include both the indemnified
party and the indemnifying party, and the indemnified party
shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties
which are different from or additional to those available to
the indemnifying party, the indemnified party or parties
shall have the right to select separate counsel to assert
such legal defenses and to otherwise participate in the
defense of such action on behalf of such indemnified party
or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to assume
the defense of such action and approval by the indemnified
party of counsel, the indemnifying party shall not be liable
to such indemnified party under this paragraph for any legal
or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accor-
dance with the proviso to the next preceding sentence (it
being understood, however, that the indemnifying party shall
not be liable for the expenses of more than one separate
counsel representing the indemnified parties under this
paragraph who are parties to such action), (ii) the indemni-
fying party shall not have employed counsel satisfactory to
the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the
action, or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the
expense of the indemnifying party; and except that, if
clause (i) or (iii) is applicable, such liability shall be
only in respect of the counsel referred to in such clause
(i) or (iii).
The Issuer and the City shall not be liable for any
settlement of any such action effected without its consent,
but if settled with its consent, the Issuer and the City
agree to indemnify and hold the Underwriter and such officer
or director or such controlling person harmless from and
against any loss or liability, including reasonable legal
and other expenses incurred in connection with the defense
of the action, by reason of such settlement to the extent of
the indemnification provided for in this paragraph.
24
SECTION 12 NOTICE
Any notice or other communication to be given to the
Issuer under this Bond Purchase Agreement may be given by
mailing or delivering the same in writing to the Chairman,
Downtown Smyrna Development Authority, P.O. Box 1226,
Smyrna, Georgia 30081, any notice or other communication to
be given to the City under this Bond Purchase Agreement may
be given by mailing or delivering the same in writing to the
Mayor, City of Smyrna, P.O. Box 1226, Smyrna, Georgia
30081, and any notice or other communication to be given to
the Underwriter under this Bond Purchase Agreement may be
given by mailing or delivering the same in writing to Edmund
J. Wall, Vice President, Lex Jolley & Co., Inc., 34
Peachtree Street, Suite 2500, Atlanta, Georgia 30303.
SECTION 13. APPLICABLE LAW; NONASSIGNABILITY
This Bond Purchase Agreement shall be governed by the
laws of the State of Georgia. This Bond Purchase Agreement
shall not be assigned by the Issuer or the City.
SECTION 14. PARTIES IN INTEREST
This Bond Purchase Agreement shall be binding upon, and
has been and is made for the benefit of, the Issuer, the
City, and the Underwriter, and to the extent expressed, any
person controlling the Underwriter and their respective
executors, administrators, successors, and assigns, and no
other person shall acquire or have any right or interest
under or by virtue hereof. The term "successors and
assigns" shall not include any purchaser, as such, of any
Bond.
25
SECTION 15. EXECUTION OF COUNTERPARTS
This Bond Purchase Agreement may be executed in several
counterparts, each of which shall be regarded as an original
and all of which shall constitute one and the same document.
Very truly yours,
LEB JOLLEY i CO., INC.
By.
ordon K. Mortin
President
Accepted as of the date first above written:
DOWNTOWN SMYRNA DEVELOPMENT AUTHORITY
By:
Chairman
ATTEST:
By L
Secretary/Treasurer ' y
Accepted as of the date first above written:
CITY OF SMYRNAj GEORGIA
By:_
Mayor
ATTEST:
By:_ 6qg-
City Clerk
26
Exhibit A
to
Bond Purchase Agreement
Underwriter of Bonds
Lex Jolley & Co., Inc.
Principal
amount
$8,690,000
Exhibit B
to
Bond Purchase Agreement
$8,690,000
Series 1990 Bonds
Principal
Interest
Maturity
Amount
Rate
February 1 of the Year
$ 30,000
6.10%
1992
95,000
6.25
1993
165,000
6.35
1994
175,000
6.45
1995
185,000
6.55
1996
195,000
6.65
199
210,000
6.75
199 8
225,000
6.85
199
240,000
6.95
2000
1,135,000
7.10
2004
335,000
7.15
2005
360,000
7.20
2006
385,000
7.20
1,320,000
7.25
2010
3.635.000
7.375
2016
$8,690,000
Total
Exhibit C
SUTHERLAND, ASBILL & BRENNAN
3100 FIRST ATLANTA TOWER
CABLE: SUTAO ATLANTA
ATLANTA, GEORGIA 30383-3001 127S PENNSYLVANIA AVENUE, N.W.
TELECOPIER• 1404) 656-8914 WASNINGTON, D. C. 2000�•2AOs
( 4041
TE4Ex:S4-2672 t20213a3-0100
April , 1990
Downtown Smyrna Development Authority
Smyrna, Georgia
Re: $8,690,000 Downtown Smyrna Development Authority
(Georgia) Revenue Bonds, Series 1990
Ladies and Gentlemen:
We have examined a certified copy of the validation
proceedings, judgment of validation entered on March 7, 1990, the
resolution of the Downtown Smyrna Development Authority
(hereinafter referred to as "Authority") adopted on the 5th day of
February, 1990, as supplemented by a resolution adopted March 22,
1990 (hereinafter referred to collectively as the 111990 Bond
Resolution"), that certain Amended and Restated Lease Contract,
dated as of September 1, 1989 (hereinafter referred to as "Lease
Contract") entered into by and between the Authority and the City
of Smyrna, the resolution of the Mayor and Council of the City of
Smyrna adopted February 5, 1990, the Constitution and laws of the
State of Georgia and other documents relating to the Downtown
Smyrna Development Authority Revenue Bonds, Series 1990
(hereinafter sometimes referred to as "Series 1990 Bonds") in the
aggregate principal amount of $8,690,000. The Series 1990 Bonds
are fully registered bonds without coupons, dated February 1, 1990,
in the denomination of $5,000 or any integral multiple thereof,
transferable to subsequent owners as therein provided, bearing
interest from date at the rate per annum set forth below opposite
each principal maturity, all interest payable August 1, 1990 and
semiannually thereafter on the ist 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
6.10%
Year
2000
oun
$ 240,000
Rate
6.95%
1992
1993
$ 30,000
95,000
6.25
2004
1,13511000
7.10
1994
165,000
6.35
2005
335,000
7.15
1995
175,000
6.45
2006
360,000
7.20
1996
185,000
6.55
2007
385,000
7.20
1997
195,000
6.65
2010
1,320,000
7.25
1998
210,000
6.75
2016
3,635,000
7.375
1999
225,000
6.85
The Series 1990 Bonds are being issued 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
Downtown Smyrna Development Authority
Page 2
of the General Assembly of Georgia (Georgia Laws 1986, p. 3957 et
seq. ) as a part of the Constitution of the State of Georgia of 1983
and under the authority of an Act of the General Assembly known as
the "Downtown Smyrna Development Authority Act" (Georgia Laws 1989,
p. 4382 et seq.) and the Revenue Bond Law (Title 36, Chapter 82,
Article 3 of the official Code of Georgia Annotated, as amended)
and pursuant to the 1989 Bond Resolution (hereinafter defined) and
the 1990 Bond Resolution 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, to capitalize
interest on said bonds and to pay all expenses necessary to
accomplish the foregoing.
The Series 1990 Bonds are subject to redemption prior to their
respective maturities as stated in the text of the Series 1990
Bonds and in the manner and upon the terms set forth in the 1990
Bond Resolution.
The Authority heretofore has issued $6,430,000 principal
amount of its Revenue Bonds, Series 1989 (the "Series 1989 Bonds")
pursuant to said resolution of September 5, 1989, as supplemented
by a resolution adopted November 8, 1989 (hereinafter referred to
collectively as the 111989 Bond Resolution") and provision was made
in the 1989 Bond Resolution for the issuance of additional bonds
ranking as to lien on the revenues of the Authority with said
Series 1989 Bonds. The Series 1990 Bonds have been issued in
accordance with the terms and conditions of the 1989 Bond
Resolution and rank on a parity with the Series 1989 Bonds.
Pursuant to the terms of the Lease Contract, the Authority
has, among other things, leased to the City of Smyrna (hereinafter
sometimes referred to as the "City") the facilities and real
property financed with the proceeds of the Series 1989 Bonds, the
Series 1990 Bonds and any additional parity bonds issued by the
Authority (the "Leased Facilities"). The City has obligated itself
under the Lease Contract to make certain Basic Lease Payments which
are to be paid directly to the custodian of the "Downtown Smyrna
Development Authority Sinking Fund" (hereinafter sometimes referred
to as "Sinking Fund") for the account of the Authority in amounts
sufficient to enable the Authority to pay the principal of and
interest on the Series 1989 Bonds and the Series 1990 Bonds as same
become due and payable, either at maturity or by proceedings for
mandatory redemption. The Lease Contract provides that the
obligation of the City to make the Basic Lease Payments is absolute
and unconditional, payable out of the City's general fund or funds
Downtown Smyrna Development Authority
Page 3
from other sources. The Lease Contract further provides that to
the extent that at anytime such funds are not available to make
such payments in the full amount required, then the City shall levy
a tax on all taxable property located within the corporate limits
of the City at such rate or rates, without limitation, as may be
necessary to produce funds in amounts sufficient to enable the City
to make such payments in the full amount required on the dates such
payments are due. The Lease Contract and the revenues of the
Authority derived under the Lease Contract from the City have been
pledged under the 1989 Bond Resolution, as ratified, reaffirmed,
broadened and extended by the 1990 Bond Resolution, to the payment
of the principal of and interest on the Series 1989 Bonds, the
Series 1990 Bonds and any additional bonds hereafter issued by the
Authority on a parity therewith.
We express no opinion as to the title to the real and personal
property comprising the Leased Facilities.
The Series 1990 Bonds 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 said State or City be
subject to any pecuniary liability or other liability thereon. The
issuance of the Series 1990 Bonds 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 the payment thereof.
we express no opinion with respect to the accuracy,
completeness or sufficiency of the Authority's Official Statement
pertaining to the Series 1990 Bonds, nor any opinion as to
compliance by the Authority or the underwriter of the Series 1990
Bonds with any federal or state statute, regulation or ruling with
respect to the sale or distribution of the Series 1990 Bonds.
In rendering our opinion set forth below that the interest on
the Series 1990 Bonds is excluded from gross income for federal
income tax purposes, we have relied as to questions of fact
material to our opinion upon certain certificates and certified
proceedings of public officials, including officials of the
Authority and the City, and representations of the Authority with
respect to the use of the proceeds of the Series 1990 Bonds and the
nature and use of the facilities being financed or refinanced
thereby without undertaking to verify the same by independent
investigation.
The Authority has covenanted in the 1990 Bond Resolution that
it will not, subsequent to the date hereof, intentionally use any
portion of the proceeds of the Series 1990 Bonds to acquire higher
yielding investments or to replace funds which were used directly
Downtown Smyrna Development Authority
Page 4
or indirectly 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"), that it will comply with the
arbitrage rebate requirements of Section 148(f) of the Code 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. Failure to comply with such covenants
could cause interest on the Series 1990 Bonds to be included in
gross income for federal income tax purposes retroactive to the
date of issuance of the Series 1990 Bonds.
We have also examined an executed and fully registered bond
of this issue, and we are of the opinion that:
(a) The 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.) has been duly ratified and
proclaimed and now constitutes a valid part of the
Constitution of the State of Georgia of 1983 and is of full
force and effect, and pursuant thereto and the provisions of
the "Downtown Smyrna Development Authority Act" (the
"Authority Act"), the Authority is now legally created and
existing as a body corporate and politic and as such it is
deemed to be a political subdivision of the State of Georgia.
(b) The Authority Act and the Revenue Bond Law are valid
and the 1989 Bond Resolution and the 1990 Bond Resolution
provide for the payment into the Sinking Fund of the amounts
required to pay the principal of and interest on the Series
1989 Bonds, the Series 1990 Bonds and any bonds hereafter
issued on a parity therewith as the same became due and
payable, either at maturity or by proceeding for mandatory
redemption.
(c) Under authority of the Constitution, the Authority
Act and laws of the State of Georgia, the Authority and the
City were authorized to enter into the Lease Contract. The
Lease Contract is the valid and binding obligation of the
parties thereto.
(d) The lien created on all moneys received from the
City as Basic Lease Payments pursuant to the provisions of the
Lease Contract securing the payment of debt service
requirements on the Series 1989 Bonds and the Series 1990
Bonds constitutes a first or prior pledge of said moneys to
any that can hereafter be made, except that the Authority may
issue, from time to time under certain terms and conditions
as set forth in the 1989 Bond Resolution and 1990 Bond
Resolution, additional bonds, and if issued, said bonds shall
Downtown Smyrna Development Authority
Page 5
be payable, both principal and interest, from said moneys and
shall stand on a parity as to lien on said moneys with the
Series 1989 Bonds and the Series 1990 Bonds.
(e) The Series 1990 Bonds are the valid and binding
obligations of the Authority in accordance with the terms
thereof, payable solely from the Sinking Fund, which Sinking
Fund, by the 1989 Bond Resolution and the 1990 Bond
Resolution, is pledged to and charged with the payment of the
principal of and the interest on the Series 1989 Bonds, the
Series 1990 Bonds and any parity bonds therewith hereafter
issued.
( f ) The interest on the Series 1990 Bonds is exempt from
present income taxation within the State of Georgia.
(g) Assuming compliance with the above -described
covenants, based on the existing statutes, regulations,
rulings and court decisions, interest on the Series 1990 Bonds
(i) is excluded from gross income for federal income tax
purposes and (ii) is not an item of tax preference for
purposes of the federal alternative minimum tax imposed on
individuals and corporations; provided, however, it should be
noted that with respect to corporations (as defined for
federal income 'tax purposes) such interest is taken into
account in determining adjusted current earnings for the
purpose of computing the federal alternative minimum tax
imposed on such corporations. We express no opinion regarding
other federal tax consequences arising with respect to the
Series 1990 Bonds.
Very truly yours,
SUTHERLAND, ASBILL & BRENNAN
By.
[Letterhead of Sutherland, Asbill & Brennan]
April 1990
Lea Jolley & Co., Inc.
Atlanta, Georgia
RE: $8,690,000 Downtown Smyrna Development Authority Revenue
Bonds, Series 1990
Gentlemen:
This opinion is being delivered to you pursuant to Section
5(b)(i) of the Bond Purchase Agreement, dated March 22, 1990,
among you, the City of Smyrna, Georgia, and the Downtown Smyrna
Development Authority (the "Issuer") relating to the
above -referenced bonds (the "Bonds").
We have acted as Bond Counsel in connection with the
issuance of the Bonds, and reference is hereby made to our
approving opinion of even date herewith addressed to the Issuer
and delivered to you concurrently herewith. You may rely upon
such opinion as if the same were addressed to you.
In connection with the issuance of the Bonds, we have
examined the following:
(a) the proceedings, documents, and papers described
in our opinion of even date herewith addressed to the
Issuer;
(b) the Preliminary Official Statement, dated March
13, 1990 (the "Preliminary Official Statement"), and the
official Statement, dated March 22, 1990 (the "Official
Statement"), relating to the Bonds; and
(c) such other information, papers, and documents as
we have deemed relevant and necessary as a basis for the
opinions hereinafter expressed.
In our examination of the aforesaid proceedings and documents,
we have assumed the authenticity of all documents submitted to
us as originals, the conformity to the original documents of all
Lex Jolley & Co. nc.
April 1990
Page 2
documents submitted to us as copies, the authenticity of the
originals of such latter documents, and the correctness of any
facts stated in all of such documents.
Based upon the foregoing we are of the opinion that the
statements in the Preliminary Official Statement and in the
Official Statement under the headings "The Series 1990 Bonds"
and "Security and Source of Payment for the Series 1990 Bonds"
and the statements in Appendix E to the Preliminary Official
Statement and the Official Statement, insofar as such statements
constitute summaries of the terms of the Bonds and the
instruments described in Appendix E to the Preliminary Official
Statement and the Official Statement, and the statements in the
Preliminary Official Statement and the Official Statement under
the heading "Tax Exemption", insofar as such statements
constitute summaries of the matters set forth therein,
constitute fair and accurate summaries of the portions thereof
purported to be summarized; but no further opinion is expressed
with respect to the accuracy, completeness, or sufficiency of
the Preliminary Official Statement or the Official Statement nor
is any opinion expressed with respect to compliance by the
Issuer or any other person with any federal or state statute,
regulation, or ruling with respect to the sale or distribution
of the Bonds.
We have acted as Bond Counsel in connection with the
issuance of the Bonds and, as such, have reviewed only those
documents, opinions, certificates, and proceedings necessary to
enable us to render our opinion to the Issuer of even date
herewith as to the legality and validity of the Bonds and the
tax-exempt status of the interest thereon. Except to the extent
set forth above, we have not prepared, or assumed responsibility
for, the Preliminary Official Statement or the Official
Statement and have not undertaken to check or confirm the
accuracy or completeness of, or verified the information
contained in, the Preliminary Official Statement or the Official
Statement.
Very truly yours,
SUTHERLAND, ASBILL & BRENNAN
By:
Partner
00=4281.01
Exhibit D
[Letterhead of Cochran, Camp & Snipes]
April 1990
Lea Jolley & Co., Inc.
Atlanta, Georgia
Sutherland, Asbill & Brennan
Atlanta, Georgia
RE: $8,690,000 Downtown Smyrna Development Authority Revenue
Bonds, Series 1990
Gentlemen:
We have acted as counsel to the Downtown Smyrna Development
Authority (the "Issuer") preliminary to and in connection with the
issuance and sale by the Issuer of $8,690,000 in aggregate
principal amount of its Revenue Bonds, Series 1990, dated February
1, 1990 (the "Series 1990 Bonds"). In so acting, we have
examined, among other things, an amendment to Article VII, Section
VII, Paragraph I of the Constitution of the State of Georgia of
1945 (1970 Ga. Laws 1117 et sea.), specifically continued pursuant
to an Act of the General Assembly of the State of Georgia (1986
Ga. Laws 3957 e-t sea.), certified copies of excerpts from minutes
of each meeting of the Mayor and Council of the City of Smyrna at
which the current members of the Issuer were appointed for their
current terms, an Act of the General Assembly of the State of
Georgia known as the "Downtown Smyrna Development Authority Act"
(1989 Ga. Laws 4382 et sea., as amended), and originals, executed
counterparts, or certified copies of the following:
1. The proceedings, including a Resolution adopted on
September 5, 1989, as ratified, reaffirmed, supplemented, and
amended by Resolutions adopted on November 8, 1989,
February 5, 1990, and March 22, 1990 (collectively the
"Resolution"), authorizing, among other things, the issuance
and delivery of the Series 1990 Bonds and the execution,
Let Jolley & Co.,
Sutherland, Asbill
April 1990
Page Two
Inc.
& Brennan
delivery, receipt, and/or approval of a Bond Purchase
Agreement, dated March 22, 1990 (the "Bond Purchase
Agreement"), among the Issuer, the City of Smyrna, Georgia
(the "City"), and Lex Jolley & Co., Inc. (the "Underwriter"),
a Lease Contract, dated as of September 1, 1989 (the
"Lease"), between the Issuer and the City, a Preliminary
Official Statement dated March 13, 1990 (the "Preliminary
Official Statement"), and an Official Statement dated
March 22, 1990 (the "Official Statement").
2. The Bond Purchase Agreement, the Lease, the Preliminary
Official Statement, and the Official Statement and a specimen
Series 1990 Bond.
We have relied upon the following owner's title insurance policies
held by the Issuer insuring the title of the Issuer to the real
property and interests therein which are leased to the City
pursuant to the Lease in issuing this opinion and have not
examined title to any of the property insured by such policies
after the date of each such policy:
We have reviewed the foregoing title
insurance policies insuring the title of the Issuer to the
property described therein, and we know of no information which
would cause us to question the accuracy of the matters stated
therein, including, without limitation, the title of the Issuer to
the property described therein, subject only to the exceptions set
forth in such title policies.
Based upon the foregoing and an examination of such other
information, papers, and documents as we believed necessary or
advisable to enable us to render this opinion, we are of the
opinion, as of the date hereof, that:
1. The Issuer is a body corporate and politic and public
corporation of the State of Georgia duly created and validly
existing under and by virtue of the Constitution and laws of
the State of Georgia, including particularly the provisions
of the Downtown Smyrna Development Authority Act, and has all
requisite power and authority to adopt the Resolution and
perform its obligations thereunder, to lease the property
694ERT-2281.01
Lea Jolley & Co., Inc.
Sutherland, Asbill & Brennan
April 1990
Page Three
demised by the Lease (the "Leased Facilities") to the City,
to enter into and perform its obligations under the Bond
Purchase Agreement and the Lease, to execute and deliver the
Official Statement to the Underwriter for distribution to the
general public in connection with the offering by the
Underwriter of the Series 1990 Bonds, and to grant the liens
granted by it under the Resolution.
2. The Issuer has taken all action legally required to authorize
the issuance, sale, and delivery of the Series 1990 Bonds and
has duly authorized the adoption and performance of the
Resolution, the execution, delivery, and performance of the
Bond Purchase Agreement and the Lease, and the approval of
the Official Statement.
3. The adoption by the Issuer of the Resolution, the
authorization by the Issuer of the Official Statement, the
issuance and delivery by the Issuer of the Series 1990 Bonds,
the execution and delivery by the Issuer of the Bond Purchase
Agreement, the Lease, and the other agreements and documents
described in the Bond Purchase Agreement, and the performance
by the Issuer of its obligations under and the consummation
of the transactions described in all of the foregoing
instruments and documents do not and will not conflict with
or constitute, on the part of the Issuer, a breach or
violation of or default under, any of the terms and
provisions of any existing constitution, statute, law, or
court or administrative rule or regulation, decree, order, or
judgment to which the Issuer is subject or by which the
Issuer or any of its properties is bound or any agreement,
indenture, mortgage, lease, deed of trust, note, resolution,
ordinance, contract, commitment, or other instrument or
agreement to which the Issuer is a party or by which the
Issuer or any of its properties is bound.
4. Each of the officers of the Issuer was on the date of
execution of each of the instruments relating to the Series
1990 Bonds, was on the date of the execution of the Series
1990 Bonds, and is on the date hereof the duly elected or
appointed qualified incumbent of his or her office of the
Issuer.
694ERT-2281.01
Lex Jolley & Co., Inc.
Sutherland, Asbill & Brennan
April 1990
Page Four
5. The notices given prior to the respective meetings of the
members of the Issuer at which the Resolution was adopted
comply with the applicable notice requirements of Georgia
law, and said meetings were conducted in accordance with the
applicable requirements of Georgia law.
6. There is no action, suit, proceeding, inquiry, or
investigation, at law or in equity, by or before any court or
public board or body pending or, to the best of our knowledge
and belief, after making due inquiry with respect thereto,
threatened against or affecting the Issuer, nor to our
knowledge is there any basis therefor, which in any way
questions the creation or existence of the Issuer referred to
in Section 2(a) of the Bond Purchase Agreement or the powers
of the Issuer referred to in Section 2(b) of the Bond
Purchase Agreement, or the validity of the proceedings
resulting in the issuance and delivery of the Series 1990
Bonds, or wherein an unfavorable decision, ruling, or finding
would adversely affect the transactions contemplated by the
Bond Purchase Agreement or which in any way would adversely
affect the validity or enforceability of the Series 1990
Bonds, the Resolution, the Bond Purchase Agreement, or the
Lease or any other agreement or instrument to which the
Issuer is a party and which is used or contemplated for use
in connection with the consummation of the transactions
contemplated by the Bond Purchase Agreement.
7. All permits, consents, permissions, approvals, or licenses
and authorizations or orders of any court or governmental or
regulatory bodies that are required to have been obtained as
of the date hereof by the Issuer in connection with the
ownership of the Leased Facilities, as contemplated by the
Official Statement, the issuance, sale, and delivery of the
Series 1990 Bonds, the adoption, execution, delivery, and
performance of the Resolution, the Bond Purchase Agreement,
and the Lease, and the consummation of the transactions
contemplated thereby have been duly obtained and remain in
full force and effect. we have no reason to believe, after
making due inquiry, that the Issuer will not be able to
maintain all such permits, consents, permissions, approvals,
and licenses described in the preceding sentence or to obtain
all such additional permits, consents, permissions,
694ERT-2281.01
Lea Jolley & Co., Inc.
Sutherland, Asbill & Brennan
April 1990
Page Five
approvals, or licenses and authorizations or orders of any
court or governmental or regulatory bodies as may be required
on or prior to the date the Issuer isilegally required to
obtain the same. No additional or further approval, consent,
permission, authorization, or order of any court or any
governmental or public agency or authority not already
obtained is required by the Issuer as of the date hereof in
connection with the ownership of the Leased Facilities, the
issuance, sale, and delivery of the Series 1990 Bonds, or the
adoption, execution, delivery, and performance of the
Resolution, the Bond Purchase Agreement; or the Lease. The
opinion expressed in this paragraph 7 sh'all not extend to or
otherwise cover any approvals that mayl be required by any
federal or state securities laws.
8. The Issuer has never issued, assumed, guaranteed, or
otherwise become liable in respect of any bonds, notes, or
other obligations which are presently outstanding and which
are secured in any manner by the Lease or by the rentals to
be received under the Lease, other than as set forth in the
Resolution, and the Issuer has not entered into or issued any
instrument, resolution, ordinance, agreement, mortgage,
security agreement, indenture, contract, or arrangement of
any kind which might, on or after the date hereof, give rise
to any lien or encumbrance on the Lease or the rentals to be
received under the Lease, other than the Resolution.
9. The Resolution has been duly adopted by the Issuer, is in
full force and effect in the form in which it was adopted,
and constitutes the valid, binding, and legally enforceable
obligation of the Issuer according to its import. The Bond
Purchase Agreement and the Lease have been duly authorized,
executed, and delivered by the Issuer and, assuming the due
authorization, execution, and delivery by the other parties
thereto, are each in full force and effect and constitute the
valid, binding, and legally enforceable obligations of the
respective parties thereto according to their import, and the
Issuer is entitled to the benefits of the same. The Series
1990 Bonds have been duly authorized, executed, issued, and
delivered by the Issuer and, assuming the due authentication
694ERT-2281.01
Le= Jolley & Co., Inc.
Sutherland, Asbill & Brennan
April 1990
Page Six
thereof by Bank South, N.A., as bond registrar, constitute
the valid and legally binding special or limited obligations
of the Issuer, are entitled to the benefit and security of
the Resolution and the Lease, and are enforceable in
accordance with their terms.
10. The Issuer has good, marketable, and valid title in fee
simple to the Leased Facilities, which is held by the Issuer
free and clear of any encumbrance or lien. There are no
reservations, restrictions, or easements which adversely
affect the use, as contemplated in the Official Statement, of
the Leased Facilities.
11. The Official Statement has been duly authorized, executed,
and delivered by the Issuer, and the Issuer has duly approved
the use of the Preliminary Official Statement and the
Official Statement by the Underwriter in connection with the
offering of the Series 1990 Bonds.
12. As general counsel to the Issuer, we have rendered legal
advice and assistance to the Issuer in the course of the
financing. Such assistance involved, among other things,
discussions and inquiries concerning various legal matters
and review of various documents relating to the offering and
the preparation of the Preliminary Official Statement and the
Official Statement and participation in conferences during
which the contents of the Preliminary Official Statement and
the Official Statement and related matters were discussed and
reviewed, and we have made investigations and have considered
the statements contained in the Preliminary Official
Statement and the Official Statement. To the best of our
knowledge, after making due inquiry with respect thereto, the
statements contained in the Preliminary Official Statement
and the Official Statement under the captions INTRODUCTION,
THE AUTHORITY, PURPOSE OF SERIES 1990 BONDS, FUTURE
FINANCING, LITIGATION (pertaining to the Issuer), and
VALIDATION are accurate statements or summaries of the
matters set forth therein and fairly represent the
information purported to be shown and do not contain any
untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in
694ERT-2291.01
Lex Jolley & Co., Inc.
Sutherland, Asbill & Brennan
April 1990
Page Seven
order to make the statements made therein, in light of the
circumstances under which they were made, not misleading. In
addition, while we do not pass upon or assume responsibility
for the accuracy, completeness, or fairness of the
Preliminary Offical Statement or the Official Statement
(other than the opinion given in the preceding sentence),
nothing has come to our attention which leads us to believe
that any portions of the Preliminary Official Statement or
the Official Statement contain any untrue statement of a
material fact or omit to state any material fact required to
be stated therein or necessary in order to make the
statements made therein, in light of the circumstances under
which they were made, not misleading.
The foregoing opinions are qualified to the extent that the
enforceability of the Series 1990 Bonds, the Resolution, the Bond
Purchase Agreement, or the Lease might be limited by (i)
bankruptcy, insolvency, reorganization, moratorium, and other
similar laws affecting creditors' rights generally heretofore or
hereafter enacted to the extent of their enforcement, GO
judicial discretion in the application of principles of equity,
and (iii) the valid exercise of the sovereign police powers of the
State of Georgia and its governmental bodies and the
constitutional powers of the United States of America.
The foregoing opinions with respect to (i) the Issuer's title to
the Leased Facilities and (ii) matters of record in the real
property records of Cobb County, Georgia are given in sole
reliance on the title insurance policies hereinbefore described.
No opinion is given as to the tax exempt status of the Series 1990
Bonds or the interest thereon. No opinion is given concerning the
requirement for registration of the Series 1990 Bonds under the
securities laws of any state or the Securities Act of 1933, as
amended, nor is an opinion given concerning qualification of any
document under the Trust Indenture Act of 1939, as amended.
Very truly yours,
COCHRAN, CAMP & SNIPES
BY:
Partner
694ERT-2281.01
Exhibit E
[To Come]
[Letterhead of Peterson Young Self & Asselin]
April 1990
Lex Jolley & Co., Inc.
Atlanta, Georgia
RE: $8,690,000 Downtown Smyrna Development Authority Revenue
Bonds, Series 1990
Gentlemen:
We have acted as your counsel in connection with your acting as
underwriter on a "firm commitment" basis for the above -captioned
bonds (the "Bonds"). In so acting, we have examined originals,
executed counterparts, or certified copies of the following:
(a) the resolution adopted by the Downtown Smyrna
Development Authority (the "Issuer") on September 5,
1990, as ratified, reaffirmed, supplemented, and
amended by the resolutions adopted on November 8, 1989,
February 5, 1990, and March 22, 1990 (the "Resolution"),
(b) the Bond Purchase Agreement, dated March 22, 1990
(the "Bond Purchase Agreement"), among the Issuer, the
City of Smyrna, Georgia (the "City"), and Lex Jolley &
Co., Inc.,
(c) the Lease Contract, dated as of September 1, 1989,
between the Issuer and the City,
(d) the Preliminary Official Statement, dated
March 13, 1990 (the "Preliminary Official Statement"),
relating to the Bonds,
Lea Jolley & Co., Inc.
April , 1990
Page 2
(e) the Official Statement, dated March 22, 1990 (the
"Official Statement"), relating to the Bonds,
(f) a transcript of the proceedings of the Issuer
relating to the authorization, issuance, and delivery
of the Bonds, and
(g) the opinions and certificates required to be
delivered pursuant to the Bond Purchase Agreement.
In all such examinations, we have assumed the genuineness of
signatures on original documents and the conformity to original
documents of all copies submitted to us as certified, conformed,
or photographic copies, and, as to certificates, we have assumed
the same to be properly given and to be accurate.
Based upon the foregoing and an examination of such other
information, papers, and documents as we believe necessary or
advisable to enable us to render this opinion, we are of the
opinion, as of the date hereof, as follows:
1. The Bonds are exempt securities within the meaning of
Section 3(a)(2) of the Securities Act of 1933, as amended,
and the Resolution is exempt from qualification under
Section 304(a)(4) of the Trust Indenture Act of 1939, as
amended, to the extent provided in such Acts, respectively,
and it is not necessary in connection with the offer and
sale of the Bonds to the public to register the Bonds under
the Securities Act of 1933, as amended, or to qualify the
Resolution under, or to issue the Bonds under any indenture
qualified under, the Trust Indenture Act of 1939, as
amended.
We have not undertaken to independently verify the accuracy or
completeness of the statements contained in the Preliminary
Official Statement or the Official Statement. Nevertheless, we
have rendered legal advice and assistance to you in the course
of the offering and sale of the Bonds. Such assistance
involved, among other things, discussions and inquiries
concerning various legal matters, the review of the documents
referred to above, and discussions with you and with
representatives of the Issuer, the City, and their counsel in
connection with the preparation of the Preliminary Official
Statement and the Official Statement. We have also obtained
certificates as to factual matters and legal opinions from these
Lex Jolley & Co., Inc.
April , 1990
Page 3
parties and their counsel in regard to the Preliminary Official
Statement and the Official Statement and certain information
contained therein. The performance of the services referred to
above, the discussions referred to above, and our examination of
the factual certifications and legal opinions referred to above
did not disclose to us any information which would lead us to
believe that the Preliminary Official Statement or the Official
Statement (other than the financial statements and related notes
included therein, as to which we express no view) contains any
untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein made, in light of
the circumstances under which they were made, not misleading.
We have reviewed the opinions, dated today, of Cochran, Camp &
Snipes, Smyrna, Georgia, counsel to the Issuer, Cochran, Camp &
Snipes, Smyrna, Georgia, counsel to the City, and Sutherland,
Asbill & Brennan, Atlanta, Georgia, Bond Counsel, furnished to
you in accordance with the provisions of the Bond Purchase
Agreement. Such opinions are appropriately responsive to the
requirements of the Bond Purchase Agreement.
This letter is furnished by us as your counsel and is solely for
your benefit and not for dissemination in connection with the
offer and sale of the Bonds, and no other person or entity shall
be entitled to rely upon this opinion without our express
written consent.
Very truly yours,
PETERSON YOUNG SELF & ASSELIN
By:
Partner
695ERT-2281.01
Exhibit a
This draft is furnished solely for the purpose of indicating the form of letter
that we would expect to be able to furnish Lex Jolley & Co., Inc. in response to
their request, the matters expected to be covered in the letter, and the nature of
the procedures that we would expect to carry out with respect to such matters.
Based on our discussions with Lex Jolley & Co., Inc., it is our understanding that
the procedures outlined in this draft letter are those
shall assume y wish us t follow -
Unless Lex Jolley & Co., Inc. informs
us to follow. The text of the letter itself
ere are
no additional procedures they
will depend, of course, upon the results of the procedures, which we would not
expect to complete until shortly before the letter is given and in no event before
the cutoff date indicated therein.
City of Smyrna
Smyrna, Georgia
Lex Jolley & Co., Inc.
Atlanta, Georgia
Gentlemen:
March 13, 1990
FOR MAI,#AUt! ~'4
.�
We have audited the general purpose financial statements of the City of Smyrna
(the "City") as of and for the year ended June 30, 1989, included in Appendix
A to the Official Statement dated February 1, 1990 relating to the sale of
$8,690,000 aggregate principal amount of Downtown Smyrna Development Authority
(Georgia) Revenue Bonds, Series 1990 (the "Official Statement").
In connection with the Official Statement:
1. We are independent certified public accountants with respect to the City
within the meaning of Rule 101 of the Code of Professional Conduct of the
American Institute of Certified Public Accountants.
2. We have not audited any financial statements of the City as of any date or
for any period subsequent to June 30, 1989; although we have performed an
audit for the year ended June 30, 1989, the purpose (and therefore the
scope) of such audit was to enable us to express an opinion on the general
purpose financial statements as of June 30, 1989, and for the year then
ended, but not on any financial statements for any interim period within
that year. Therefore, we are unable to and do not express any opinion on
the City's financial position, results of operations, and changes in finan-
cial position of its enterprise fund as of any date or for any period
subsequent to June 30, 1989.
3. For the purposes of this letter, we have read the 1989 and 1990 minutes of
meetings of the City as set forth in the minute books at March 13, 1990,
officials of the City having advised us that the minutes of all such
meetings through that date were set forth therein; and we have carried out
other procedures to March 13, 1990 as follows:
City of Smyrna
Lex Jolley & Co., Inc.
March 13, 1990
2
a. With respect to the six-month period ended December 31, 1989, we have:
(i) Read the incomplete unaudited financial statements of the general
fund of the City (incomplete in that relevant footnotes were not
available) for the six months ended December 31, 1989 included in
Appendix B to the Official Statement.
(ii) Made inquiries of certain officials of the City who have responsi-
bility for financial and accounting matters as to whether the
incomplete unaudited financial statements of the general fund
referred to under (i) are stated on a basis substantially con-
sistent with that of the general fund financial statements
included in the audited general purpose financial statements
referred to in the introductory paragraph of this letter.
b. With respect to the period from January 1, 1990 to February 28, 1990,
we have:
(i) Read the incomplete unaudited financial statements of the general
fund of the City (incomplete, in that relevant footnotes were not
available), for January and February of 1990 furnished to us by
the City, officials of the City having advised us that no such
financial statements as of any date or for any period subsequent
to February 28, 1990 were available; and
(ii) Made inquiries of certain officials of the City who have responsi-
bility for financial and accounting matters as to whether the
incomplete unaudited financial statements referred to in 3b(i)
above are stated on a basis substantially consistent with that of
the general fund financial statements included in the audited
general purpose financial statements referred to in the introduc-
tory paragraph of this letter.
The foregoing procedures do not constitute an audit made in accordance
with generally accepted auditing standards. Also, they would not necessar-
ily reveal matters of significance with respect to the comments in the
following paragraph. Accordingly, we make no representations regarding
the sufficiency of the foregoing procedures for your purposes.
4. Nothing came to our attention as a result of the foregoing procedures,
however, that caused us to believe that:
a. The incomplete unaudited financial statements of the general fund of
the City described in 3a(i), included in Appendix B to the Official
Statement, are not in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that of the
City of Smyrna
Lex Jolley & Co., Inc.
March 13, 1990
3
general fund financial statements included in the audited general
purpose financial statements referred to in the introductory paragraph
of this letter; or
b. At February 28, 1990, there was any decrease in the total general fund
equity of the City as compared with the amounts shown in the incomplete
unaudited financial statements of the general fund of the City for the
six months ended December 31, 1989 included in Appendix B to the
Official Statement, except in all instances for decreases that the
Official Statement discloses have occurred or may occur.
S. As mentioned under 3b, Officials of the City have ,advised us that no
financial statements of the general fund of the City for any period
subsequent to February 28, 1990 are available; accordingly, the procedures
carried out by us with respect to decreases in total general fund equity
after February 28, 1990 have, of necessity, been even more limited than
those with respect to the periods referred to in 3. We have made in-
quiries of certain officials of the City who have responsibility for
financial and accounting matters as to whether there was any decrease at
March 13, 1990 in total general fund equity of the City, as compared with
the amount shown in the incomplete unaudited financial statements of the
general fund of the City for the six months ended December 31, 1989
included in the Official Statement. On the basis of these inquiries and
our reading of the minutes as described in 3, nothing came to our
attention that caused us to believe that there was any such decrease,
except in all instances for decreases which the Official Statement
discloses have occurred or may occur.
6. For the purposes of this* letter, we have also read the following, set
forth in the Official Statement on the indicated page.
PA" psscriotion
10 The table entitled "City of Smyrna (Georgia) General Fund
Summary of Revenues, Expenditures, and Changes in Fund Balance."
7. Our audit of the general purpose financial statements for the period
referred to in the introductory paragraph of this letter comprised audit
tests and procedures deemed necessary for the purpose of expressing an
opinion on such financial statements taken as a whole. For no period
referred to therein nor any other period did we perform audit tests for
the purpose of expressing an opinion on individual balances of accounts or
summaries of selected transactions such as those enumerated above, and,
accordingly, we express no opinion thereon.
City of Smyrna
Lex Jolley & Co., Inc.
March 13, 1990
4
8. However, for purposes of this letter, we have performed the following addi-
tional procedures, which were applied as indicated with respect to the
item enumerated in 6 above:
Procedures and_Findin¢s
We compared the amounts in the table to the audited general purpose finan-
cial statements of the City for the years ended June 30, 1985, 1986, 1987,
1988, 1989 and found them to be in agreement.
9. It should be understood that we make no representations regarding ques-
tions of legal interpretation or regarding the sufficiency for your
purposes of the procedures enumerated in the preceding paragraph; also,
such procedures would not necessarily reveal any material misstatement of
the amounts listed above. Further, we have addressed ourselves solely to
the foregoing data as set forth in the Official Statement and make no
representations regarding the adequacy of disclosure or regarding whether
any material facts have been omitted.
10. This letter is solely for the information of the addressees and to assist
the underwriter in conducting and documenting its investigation of the
affairs of the City in connection with the offering of the bonds covered
by the Official Statement, and it is not to be used, circulated, quoted,
or otherwise referred to within our without the underwriting group or for
any other purpose, including but not limited to the offering, purchase, or
sale of such bonds, nor is it to be filed with or referred to in whole or
in part in the Official Statement or any other document, except. that
reference may be made to it in the bond purchase agreement or in any list
of closing documents pertaining to the offering of the bonds covered by
the Official Statement.
Very truly yours,