February 15, 1993 Council Meeting
February 15, 1993
The regular scheduled meeting of Mayor and Council was held
February 15, 1993 at Smyrna City Hall. The meeting was called to
order at 7:30 o'clock p.m. by presiding officer Mayor A. Max Bacon.
All council members were present. Also present was City
Administrator Bob Thomson, City Clerk Melinda Dameron, City
Attorney Charles E. Camp, Library Director Laurel Best, Athletic
Coordinator Michael Justus, Communications Director Steve Ciaccio,
Finance Director Jim Triplett, Police Chief Stan Hook, Personnel
Director Mary Ann White, Fire Chief Larry Williams, Public Works
Director Vic Broyles, City Engineer Ken Hildebrandt and
representatives of the press.
...
Invocation was given by Al Turnell, pastor of Smyrna First
Methodist Church.
CITIZENS INPUT: Nothing to report.
PUBLIC HEARINGS: Nothing to report.
FORMAL BUSINESS:
(A) Bid opening para-recreation transit bus for Parks &
Recreation Department
Jack Cramer made a motion the bid opening be tabled to the next
meeting. John Patrick seconded the motion which carried 7-0.
(B) Appointment to Clean City Commission - Ward 2
Ron Newcomb made a motion that Pam Richmond a resident at 804
Country Park Drive, be appointed to the Clean City Commission
representing Ward 2. John Patrick seconded the motion which
carried 7-0.
Mayor Bacon announced that an advertisement was made for a public
.. hearing tonight, for Hagersham Pawn at 2301 Benson Poole Road, but
the application was withdrawn by the applicant.
(C) Approval to ratify decision of DDA - refinancing of DDA bonds
Bob Thomson stated the Downtown Development Authority has
recommended that we refinance the 1989 bonds for a cumulative
savings of over $500,000 with an annual savings on the debt service
payments of approximately $23,500. Council must ratify that
decision before they can proceed.
Jim Hawkins said the DDA is requesting the refinancing of the bonds
which will reduce the interest rate from 7% to 5% and made a
motion the decision of the DDA be ratified to refinance the bonds
as recommended. Ron Newcomb seconded the motion which carried 6-0
with Pete Wood abstaining.
(D) Ordinance amendment Section 8-20 - Probation Services
...
Councilman Jim Hawkins stated that last year the State legislature
provided through the Official Code of Georgia, for probation
services in Municipal Courts. This service can provide for
supervision of community service workers, oversee the collection of
fines, etc. which will eliminate some of the criticism that
Municipal Courts are strictly revenue courts. This amendment will
give the Court the authority to establish a probation system but
will not allow them to hire personnel or create new positions.
Mr. Hawkins made a motion the ordinance be amended by adding a new
section 8-20 to read as follows:
Sect. 8-20. Authority to establish probation office
The Municipal Court shall have the authori ty to create a
probation office which shall be under the supervision of the
Judge of Municipal Court. The probation office shall have the
February 15, 1993 meetinq - continued
duty of supervising persons convicted in the Municipal Court
when so directed by the Judge of the Municipal Court. The
probation office shall have such other duties as may be given
to it by the Judge of the Municipal Court or by ordinance.
All matters relating to the operation of the probation office
shall be as directed by ordinance. The probation office may
collect a monthly probation fee from any individual on
probation as is set by the Judge of the Municipal Court not to
exceed $20.00 per month during the term of probation.
Bill Scoggins seconded the motion which carried 7-0.
....
COMMERCIAL BUILDING PERMITS: Nothing to report.
BID AWARDS:
(A) Tractor for Parks & Recreation Department
Jack Cramer made a motion the bid be awarded to Cobb County Tractor
at the bid price of $17,670. Bill Scoggins seconded the motion
which carried 7-0.
CONSENT AGENDA:
(A)
(B)
(C)
p.m.
(D)
(E)
Approval of February 1, 1993 minutes
Approval of traffic signal - Pat Mell Road at Atlanta Road
Approval to use council chambers - February 24, 1993 from 7:00
to 9:00 p.m. (Wade Lnenicka)
No parking signs - Creatwood Trail between Mackinaw & Mohawk
Approval of direct deposit of GMEBS pension for retirees.
COMMITTEE REPORTS:
John Patrick called on Laurel Best for a report from the Library.
Ron Newcomb called on Mary Ann White for a report from Personnel. --
Mrs. White announced current job vacancies in the City and also
said she was accepting nominations for the Employee of the Month.
Councilman Newcomb called on Ken Hildebrandt for a report from
Community Development and stated their committee is in the process
of amending the ordinance which will allow us to take a more
aggressive stance in code compliance for overgrown yards and junk
car violations.
Councilman Bill Scoggins called on Kathy Barton and Vic Broyles for
reports from their departments. Mr. Broyles said that a 21 year
employee of the City, Robert Mayes, passed away and would be missed
by all.
Councilman Jim Hawkins called on Chief Larry Williams for a report
from the Fire Department. February 22-26 is Severe Weather
Awareness Week and March is the beginning of tornado season. There
are 13 warning sirens in the area and tests will be conducted next
week.
Mr. Hawkins complimented Mary Ann White on the good job she is
doing and said he appreciated the reports on job openings. Mr.
Hawkins and other members of council also offered their condolences
to the Mayes family.
....
Councilman Jack Cramer called on Michael Justus for a report from
the Parks and Recreation Department and Susan Hunt provided a
report on bookings at the Community Center. Mr. Justus said we
have submitted an application to host one of the teams during the
Olympics but have not received further information.
Councilman Wade Lnenicka read letters recently received from
citizens commending Captain Bill Hayes and Lt. Mike Brown of the
Smyrna Police Department. Mr. Lnenicka also commended the Fire
February 15, 1993 meetinq - continued
Department employees who responded and assisted during the C130
crash at Dobbins several weeks ago.
Mr. Lnenicka called on Chief Stanley Hook for a report from the
Police Department. Chief Hook said that Captain David Farmer was
the recipient of the M. L. King Award at Campbell High School
recently and Officer Jason Andrew will be recognized as the Officer
of the Quarter at the Chamber of Commerce breakfast on February
17th. On February 13th, our police department conducted a road
block on Atlanta Road to check for safety and child restraints.
__ Ron Gant with the Atlanta Braves was there to sign autographs.
Mr. Lnenicka said he would have another neighborhood meeting on
Tuesday, February 23rd here at City Hall. Ann Brady has been
invited to attend all Ward 6 meetings to address any concerns
regarding the school system.
Mr. Lnenicka said he had received a number of calls regarding the
industrial zoned area on Atlanta Road at Creatwood Trail. There
are a lot of cars parked there but the property is zoned for
industrial use and therefore are permitted. The buffers that are
required for the property are in place and we cannot require them
to place additional buffers at this time.
Councilman Pete Wood called on Jim Triplett for a report from the
Finance Department. Mr. Triplett said the budget calendars have
been prepared and budget packets will be distributed March 4th at
a 10:00 a.m. meeting with department heads.
Mr. Wood also commended John Huggins and Dana Fawbush of the Smyrna
Fire Department for assisting a resident in his ward recently with
a fire alarm problem.
..
meeting adjourned at 8:25 p.m.
-
4
CHARLES PETE WOOD, WARD 7
...
RESOLUTION
....
A RESOLUTION TO APPROVE, AUTHORIZE AND PROVIDE FOR
THE EXECUTION AND DELIVERY OF THAT CERTAIN SECOND AMENDED
AND RESTATED LEASE CONTRACT, DATED AS OF SEPTEMBER 1,
1989, BY AND BETWEEN THE CITY OF SMYRNA AND THE DOWNTOWN
SMYRNA DEVELOPMENT AUTHORITY; TO AUTHORIZE AND APPROVE
THE REFUNDING AND DEFEASANCE OF A PORTION OF THE DOWNTOWN
SMYRNA DEVELOPMENT AUTHORITY REVENUE BONDS, SERIES 1989
AND SERIES 1990; TO AUTHORIZE AND APPROVE THE EXECUTION
AND DELIVERY OF A BOND PURCHASE AGREEMENT, THE
PREPARATION, USE AND DELIVERY OF A PRELIMINARY OFFICIAL
STATEMENT AND OFFICIAL STATEMENT IN CONNECTION WITH THE
DOWNTOWN SMYRNA DEVELOPMENT AUTHORITY REVENUE REFUNDING
BONDS, SERIES 1993; AND FOR OTHER PURPOSES:
WHEREAS, the Mayor and Council of the City of Smyrna (the
"City"), after an investigation and study of the current capital
needs and the desirability for the redevelopment of the downtown
Smyrna area, have heretofore determined that there was an urgent
need for certain capital improvements to be made; and
...
WHEREAS, the City heretofore determined that such improvements
and other undertakings should be accomplished in accordance with,
or substantially in accordance with, the report entitled "Smyrna
Master Plan; Phase I: Community Center and Library, Project No.
88190," dated September, 1989, prepared by Sizemore Floyd
Architects, Atlanta, Georgia, said report being hereinafter
referred to as the "Capital Improvement Program"; and
WHEREAS, the investment banking firm of Lex Jolley & Co.,
Inc., Atlanta, Georgia heretofore recommended to the City that, in
order to accomplish the foregoing objective, the Downtown Smyrna
Development Authority (the "Authority") undertake to acquire,
construct and equip such capital improvements and lease same
(hereafter referred to as the "Leased Facilities") to the city,
which would then operate and maintain or cause to be operated and
maintained said Leased Facilities, and the City and the Authority,
after their own independent study, heretofore concurred in such
recommendation; and
'-'"
WHEREAS, to finance a portion of the cost of the undertaking,
the Authority heretofore authorized, pursuant to that certain bond
resolution adopted September 5, 1989, as supplemented by a
resolution adopted November 8, 1989 (the "Original Resolution") the
issuance of, and actually issued and delivered, $6,430,000
aggregate principal amount of its Revenue Bonds, Series 1989, dated
November 1, 1989 (the "Series 1989 Bonds") in the form of fully
registered bonds without coupons, transferable to subsequent owners
as therein provided, bearing interest from date at the rate per
annum set forth below opposite each principal maturity, all
interest payable August 1, 1990 and semiannually thereafter on the
1st days of February and August in each year, and the principal
''"'
maturing on the 1st day of February, in the years and amounts, as
follows:
... Year Amount Rate Year Amount Rate
1993 $ 50,000 6.25% 2005 $ 245,000 6.85 %
1994 120,000 6.30 2006 265,000 6.90
1995 125,000 6.35 2007 285,000 7.00
1996 135,000 6.40 2008 305,000 7.00
1997 145,000 6.45 2009 330,000 7.00
1998 150,000 6.50 2010 355,000 7.00
1999 165,000 6.55 2016 2,750,000 7.125
2000 175,000 6.60
2001 185,000 6.65
2002 200,000 6.70
2003 215,000 6.75
2004 230,000 6.80
of which Series 1989 Bonds there is now outstanding $6,380,000 and
said Series 1989 Bonds have as security for the payment thereof and
interest thereon certain revenues of the Authority to be received
pursuant to the Original Lease (hereinafter defined); and
WHEREAS, to finance the remaining portion of the improvements
and undertakings set forth in the Capital Improvement Program, the
Authority authorized pursuant to that certain bond resolution
adopted February 5, 1990, as supplemented and amended by
... resolutions adopted March 22, 1990 and April 2, 1990 (the "1990
Resolution") the issuance of, and actually issued and delivered,
$8,690,000 aggregate principal amount of its Revenue Bonds, Series
1990, dated February 1, 1990 (the "Series 1990 Bonds") in the form
of fully registered bonds without coupons, transferable to
subsequent owners as therein provided, bearing interest from date
at the rate per annum set forth below opposite each principal
maturity, all interest payable August 1, 1990 and semiannually
thereafter on the 1st day of February and August in each year, and
the principal maturing on the 1st day of February, in the years and
amounts as follows:
.,..
65047.1
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...
Year
..
1992
1993
1994
1995
1996
1997
1998
1999
2000
Amount
Rate
Year
2001
2002
2003
2004
2005
2006
2007
2010
2016
Amount
$ 255,000
275,000
290,000
315,000
335,000
360,000
385,000
1,320,000
3,635,000
Rate
7.10 %
7.10
7.10
7.10
7.15
7.20
7.20
7.25
7.375
of which Series 1990 Bonds there is now outstanding $8,565,000 and
said Series 1990 Bonds, together with the Series 1989 Bonds, have
as security for the payment thereof and interest thereon certain
revenues of the Authority to be received pursuant to the 1990 Lease
(hereinafter defined); and
$ 30,000
95,000
165,000
175,000
185,000
195,000
210,000
225,000
240,000
6.10%
6.25
6.35
6.45
6.55
6.65
6.75
6.85
6.95
WHEREAS, all of the Leased Facilities were leased to the city
pursuant to a Lease Contract, dated as of September 1, 1989,
between the Authority and the city (the "Original Lease") and the
City agreed to operate and maintain the Leased Facilities financed
with the proceeds of the Series 1989 Bonds and any additional bonds
ranking on a parity with the Series 1989 Bonds; and
WHEREAS, the original Lease obligated the City to make Basic
Lease Payments in an amount equal to the principal of and the
__ interest on the Bonds coming due on the next succeeding February 1
and an amount equal to the interest on the Bonds coming due on the
next succeeding August 1 in each year (the "Basic Lease Payments") ;
provided, however, that the City receive a credit against any Basic
Lease Payment to the extent moneys on deposit in the Sinking Fund
(as defined in the Original Lease) were not previously credited to
a Basic Lease Payment. Each Basic Lease Payment also includes the
charges as billed specified in subparagraphs (e), (f) and (g) of
section 3, Article V of the Original Resolution as broadened and
extended by the 1990 Resolution and 1993 Resolution (hereinafter
defined) and any deficit in any preceding Basic Lease Payment. The
city agreed in the Original Lease to exercise its power of taxation
to the extent necessary to make such Basic Lease Payments; and
WHEREAS, as provided in the Original Resolution, the original
Lease was amended to reflect the issuance of the Series 1990 Bonds
and the increase in the Basic Lease Payments necessitated thereby,
all as provided in that certain Amended and Restated Lease
Contract, dated as of September 1, 1989, between the Authority and
the city (the "1990 Lease"); and
WHEREAS, the Authority has received a recommendation from Lex
Jolley & Co., Inc., Atlanta, Georgia (the "Purchaser") that, due to
present market conditions, it is advisable, feasible and in the
best interest of the Authority that the outstanding Series 1989
Bonds maturing in the years 2007 through 2016, inclusive, in the
'--'
65047.1
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aggregate principal amount of $4,025,000 (the "Refunded Series 1989
Bonds") and the outstanding Series 1990 Bonds maturing in the years
2004 through 2016, inclusive, in the aggregate principal amount of
.. $6,350,000 (the "Refunded Series 1990 Bonds" and, together with the
Refunded Series 1989 Bonds, the "Refunded Bonds") be refunded at
this time in order to effect a savings in the debt service
requirements on the Authority's Refunded Bonds; and the Authority
has determined, after its own independent study and investigation,
that it is in its best interest to refund the Refunded Bonds as
aforesaid; and
WHEREAS, upon the further recommendation of the Purchaser,
with which the Authority concurs, it has been determined that the
refunding of the Refunded Bonds should be accomplished by making
due and legal provision for: (i) the payment of the interest on
the Refunded Series 1989 Bonds to February 1, 1999 as the same
becomes due and payable, and the redemption on February 1, 1999 of
the Refunded Series 1989 Bonds at 102 percent of the principal
amount thereof plus accrued interest to the redemption date and
(ii) the payment of the interest on the Refunded Series 1990 Bonds
to February 1, 1999 as the same becomes due and payable, and the
redemption on February 1, 1999 of the Refunded Series 1990 Bonds at
102 percent of the principal amount thereof plus accrued interest
to the redemption date; and
WHEREAS, after said refunding there will be $2,355,000
aggregate principal amount of Series 1989 Bonds outstanding under
., the original Resolution (the "outstanding Series 1989 Bonds") and
there will be $2,215,000 aggregate principal amount of Series 1990
Bonds outstanding under the 1990 Resolution (the "outstanding
Series 1990 Bonds"); and
WHEREAS, to accomplish the foregoing objectives and purposes,
the Authority proposes to issue its Revenue Refunding Bonds, Series
1993 (the "Series 1993 Bonds") more fully described in a resolution
of the Authority adopted March 11, 1993 (the "1993 Resolution");
and
WHEREAS, the City, after its own independent study and
investigation, has concurred in the Authority's determination and
has concluded that the contemplated refunding is in the best
interests of the city in that it will reduce the Basic Lease
Payments required pursuant to the 1990 Lease; and
WHEREAS, as required by the Original Resolution, as ratified,
reaffirmed, broadened and extended by the 1990 Resolution, the City
will execute and deliver this Second Amended and Restated Lease
Contract, dated as of September 1, 1989, with the Authority (the
"1993 Lease") which will reflect the issuance of the proposed
Series 1993 Bonds and the change in the Basic Lease Payments
necessitated thereby; and
...
65047.1
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NOW, THEREFORE, BE IT RESOLVED by the Mayor and Council of the
city of Smyrna, and it is hereby resolved by authority of same,
that the City of Smyrna enter into that certain Second Amended and
~ Restated Lease Contract, dated as of September 1, 1989, with the
Downtown Smyrna Development Authority, and the 1993 Lease, having
been read and carefully considered, be and the same is hereby
approved and the Mayor be and is hereby authorized and directed to
execute the 1993 Lease and the Clerk of the City be and is hereby
authorized and directed to attest same and impress the official
seal of the City of Smyrna thereon and the 1993 Lease shall be in
substantially the form which is on file and of record in the Minute
Book of the Mayor and Council of the City of Smyrna kept in the
office of the Clerk of said City, and by this reference thereto,
the 1993 Lease is incorporated herein and made a part hereof,
subject to such minor changes, insertions or omissions as may be
required to accomplish the undertaking contemplated by the parties
thereto and as same may be approved by the Mayor and the execution
of the 1993 Lease by the officers of the City as herein authorized
shall be conclusive evidence of such approval.
BE IT FURTHER RESOLVED by the authority aforesaid and it is
hereby resolved by authority of same, that the City hereby ratifies
the preparation, use and distribution of that certain Preliminary
Official Statement, dated March 8, 1993, with respect to the Series
1993 Bonds. The preparation and distribution of a final Official
Statement with respect to the Series 1993 Bonds in substantially
the same form as said Preliminary Official Statement but containing
__ the information included in this resolution is hereby authorized
and approved and the Mayor of the City is hereby authorized and
directed to execute the same. The execution and delivery of the
Bond Purchase Agreement, dated March 11, 1993, by and among the
City, the Authority and Lex Jolley & Co., Inc., in the form
presented at the meeting at which this resolution is adopted and
recorded in the Minute Book of City is hereby authorized and
approved and the Mayor and Clerk of the City are authorized to
execute and deliver same.
"....
BE IT FURTHER RESOLVED by the authority aforesaid and it is
hereby resolved by authority of same, that the issuance of the
$11,895,000 aggregate principal amount of the Downtown Smyrna
Development Authority Revenue Refunding Bonds, Series 1993 in order
to effectuate the refunding of the Authority's Series 1989 Bonds
maturing in the years 2007 through 2016, inclusive, in the
aggregate principal amount of $4,025,000 and the Authority's Series
1990 Bonds maturing in the years 2004 through 2016, inclusive, in
the aggregate principal amount of $6,350,000 be and is hereby
authorized and approved in as much as such refunding will reduce
the debt service requirements on the Series 1989 Bonds and Series
1990 Bonds currently outstanding and, therefore, reduce the Basic
Lease Payments by the City required under the 1990 Lease.
BE IT FURTHER RESOLVED by the authority aforesaid and it is
hereby resolved by authority of same, that any and all resolutions
65047.1
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WI'
...
'"
, '
or parts of resolutions in conflict with this resolution this day
adopted be and the same are hereby repealed, and the resolutions
shall be in full force and effect from and after its adoption.
65047.1
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...
SECOND AMENDED AND RESTATED
LEASE CONTRACT
between
DOWNTOWN SMYRNA DEVELOPMENT AUTHORITY
and
...
CITY OF SMYRNA
Dated as of September 1, 1989
l/JII'I'
TABLE OF CONTENTS
... ARTICLE I.
DEFINITIONS
"Additional Bonds" . . . . . . 7
"Authority" . . . 7
"Authority Act" . . . . . . . . . 7
"Basic Lease Payments" 7
"Bondowner" and "bondowner" . . . 7
"Bonds" . . . . . . . . . . . . . . . . 7
"capital Improvement Program" . . . 7
"city" or "Lessee" . . . . . . . . . . . . . . . . 7
"Fiscal Year" . . . . . . . . . . 8
"Lease" or "Contract" . . . . . . . . 8
"Lease Term" . . . . . . . . . . . 8
"Leased Facilities" . . . . . . 8
"1990 Resolution" . . . . . . . . . 8
"1993 Resolution" . . . . . . 8
"original Resolution" . . . 8
"outstanding Series 1989 Bonds" 8
"outstanding Series 1990 Bonds" . . . . 8
"Permitted Encumbrances" 8
"Permitted Investments" . . . . . . . 8
"Project Fund" . . . . . . . . . . . 9
"Project Fund Depository" . . . . . . . . . 10
"Refunded Bonds" . . . . . . . . . . . . 10
... "Refunded Series 1989 Bonds" . . . . . . 10
. .
"Refunded Series 1990 Bonds" . . . . . . . . . . 10
"Resolution" . . . . . . . . . . . . . . 10
"Revenue Bond Law" . . . 10
"Series 1989 Bonds" . . . . . . . . 10
"Series 1990 Bonds" . . . . . . . . . . . . 10
"Series 1993 Bonds" 10
"Sinking Fund" . . . . . . . . . . 10
"sinking Fund custodian" . . . . . . . . . 10
"Sinking Fund Year" . . . . . . . 10
section 2.1.
section 2.2.
ARTICLE II.
REPRESENTATIONS
Representations bv the Authority
Representations and Aqreements by
Lessee . . . . . . . . . . .
11
the
11
-
ARTICLE III.
LEASING: ISSUANCE OF BONDS: PROCEEDS:
COMMENCEMENT AND COMPLETION OF THE PROJECTS
section 3.1. Leasinq................. 13
section 3.2. Aqreement to Issue the Bonds: Applica-
tion of Bond Proceeds . .. ...... 13
section 3.3. proiect Fund Moneys. . . . . . . . . . . 13
section 3.4. Aqreement to Acquire and Construct the
proiects . . . . . . . . . . 13
section 3.5. In Event proiect Fund Insufficient . . . 16
61996.1
i
section 3.6. Investment of Pro-;ect Fund Monevs
permitted . . . . . . . . . . . . . . . . 16
....
ARTICLE IV.
EFFECTIVE DATE OF THIS LEASE; DURATION
OF LEASE TERM; RENTAL PROVISIONS; FLOW OF FUNDS
Section 4.1. Effective Date of this Lease: Duration
of Lease Term . . . . . . . . . . . . . . 16
section 4.2. Delivery and Acceptance of Possession . . 17
section 4.3. Basic Lease Payments . . . . . . . . . . 17
section 4.4. operatinq Expenses . . . . . . . . . . . 17
Section 4.5. Optional Prepayment of Rent: Redemption
of Bonds . . . . . . . . . . . . . . . . 17
section 4.6. Obliqations of Lessee Hereunder Absolute
and Unconditional . . . . . . . . . . . . 18
section 4.7. Tax Levy to Pav Basic Lease Payments 19
ARTICLE V
SPECIAL COVENANTS OF CITY
section 5.1- Rules and Requlations . . . . . . . . . . 20
section 5.2. contractinq Procedure . . . . . . 20
section 5.3. Liens . . . . . . . . . . . . . . 20
section 5.4. Insurance . . . . . . . . . . . . . . 20
section 5.5. Sale of Assets . . . . . . . . . . . 21
section 5.6. Arbitraqe . . . . . . . . . . . . . . 21
.. ARTICLE VI.
SPECIAL COVENANTS OF AUTHORITY AND CITY
section 6.1- No Warranty of Condition or Suitability
by the Authority . . . . . . . . . . . . 22
section 6.2. Inspection of the Leased Facilities . . . 22
section 6.3. Grantinq of Easements: Sale . . . . . . . 22
section 6.4. Further Assurances and Corrective
Instruments. Recordinqs and Filinqs . . . 23
section 6.5. Release Covenants . . . . . . . . . . . . 23
ARTICLE VII.
EVENTS OF DEFAULT AND REMEDIES
Section 7.1- Events of Default Defined . . . . . . 23
section 7.2. Remedies on Default . . . . . . . . . . . 24
section 7.3. No Remedy Exclusive . . . . . . . . . . . 25
Section 7 .4. Aqreement to Pay Attorneys' Fees and
Expenses . . . . . . . . . . . . 25
section 7.5. No Additional Waiver Implied bY One
Waiver . . . . . . . . . . . . . . . 25
ARTICLE VIII
OPTION OF LESSEE
section 8.1- Unqualified option to Purchase . . . 25
section 8.2. Purchase Price . . . . . . . . . . . 25
.. section 8.3. Procedure For Exercisinq option to
Purchase . . . . . . . . . . . . . . 26
61996.1
ii
ARTICLE IX.
MISCELLANEOUS
... section 9.1. Notices . . . . . . . . . . . . . . . 26
Section 9.2. Bindinq Effect . . . . . . . . . . . . . 26
section 9.3. Severability . . . . . . . . . . . . 26
section 9.4. Amounts Remaininq in Sinkinq Fund . . . . 26
section 9.5. Amendments. Chanqes and Modifications . . 26
section 9.6. Execution Counterparts . . . . . . . . . 27
section 9.7. captions . . . . . . . . . . . . . . 27
section 9.8. Law Governinq Pro;ect of Lease . . . 27
section 9.9. Redemption of Bonds . . . . . . . 27
section 9.10. Net Lease . . . . . . . . . . . . . . 27
section 9.1l. Qperatinq Contracts . . . . . . . . . 27
...
...
51996.1
iii
...
SECOND AMENDED AND RESTATED
LEASE CONTRACT
THIS SECOND AMENDED AND RESTATED LEASE. CONTRACT is entered
into as of September 1, 1989, by and between the DOWNTOWN SMYRNA
DEVELOPMENT AUTHORITY (the "Authority"), a body corporate and
politic and deemed to be a political subdivision and public
corporation of the State of Georgia created and existing under the
Constitution of the State of Georgia, as Lessor, and the CITY OF
SMYRNA (the "Lessee" or the "city"), a political subdivision of the
State of Georgia, as Lessee.
WIT N E SSE T H:
In consideration of the respective representations and
covenants hereinafter contained, the Authority and the Lessee agree
as follows:
WHEREAS, pursuant to an amendment to Article VII, section VII,
Paragraph I of the Constitution of the State of Georgia of 1945
(Georgia Laws 1970, p. 1117 et seq.) and now specifically continued
pursuant to an Act of the General Assembly (Georgia Laws 1986, p.
3957 et seq.) as a part of the Constitution of the State of Georgia
of 1986, and under the provisions of Georgia Laws 1989, p. 4382 et
.. seq., known as the "Downtown Smyrna Development Authority Act" (the
"Authority Act") there was created a body corporate and politic,
designated as the "Downtown Smyrna Development Authority"
(hereinafter sometimes referred to as the "Authority") and the
Authority is deemed to be a political subdivision of the State of
Georgia and a public corporation, which Authority has been duly
activated and organized and its members are now performing their
duties and are serving in the furtherance of the purpose for which
the Authority was created; and
WHEREAS, the city of Smyrna (the "City") is a public body
corporate and politic and a municipal corporation duly organized
and validly existing under the laws of the State of Georgia; and
..,
WHEREAS, the Authority is authorized to undertake the
acquisition, construction, remodeling, altering, renovating,
equipping, maintaining, and operating of buildings, both private
and public, and the usual and convenient facilities appertaining to
such undertakings and extension and improvement of such buildings;
the acquisition of parking facilities or parking areas in
connection therewith; the construction, reconstruction, alteration,
changing and closing of streets, roads, and alleys; the acquisition
of the necessary property therefor, both real and personal; and the
lease and sale of any part or all of such buildings, including real
and personal property, so as to assure the efficient and proper
development, maintenance and operation of such buildings, streets,
61996.1
,..,
roads and alleys deemed by the Authority to be necessary,
convenient or desirable in connection therewith; and
WHEREAS, the Authority is authorized to issue bonds for the
purpose of refunding any revenue bonds issued under the provisions
of the Authority Act and then outstanding, together with accrued
interest thereon and premium, if any; and
WHEREAS, the city and the Authority, after an investigation
and study of the current capital needs and the desirability for the
redevelopment of the downtown Smyrna area, have heretofore
determined that there was an urgent need for certain capital
improvements to be made; and
WHEREAS, the city and the Authority determined that such
improvements and other undertakings should be accompl ished in
accordance with, or substantially in accordance with, the report
enti tIed "Smyrna Master Plan; Phase I: Communi ty Center and
Library, Proj ect No. 88190," dated September, 1989, prepared by
Sizemore Floyd Architects, Atlanta, Georgia, said report being
hereinafter referred to as the "capital Improvement Program"; and
w
WHEREAS, the Authority heretofore determined that the best
method of raising the moneys required to finance such undertaking
was by the issuance and sale of its revenue bonds for such purpose;
and
WHEREAS, to finance a portion of the cost of the undertaking,
the Authority heretofore authorized, pursuant to that certain bond
resolution adopted september 5, 1989, as supplemented by a
resolution adopted November 8, 1989 (the "original Resolution") the
issuance of, and actually issued and delivered, $6,430,000
aggregate principal amount of its Revenue Bonds, Series 1989, dated
November 1, 1989 (the "Series 1989 Bonds") in the form of fully
registered bonds without coupons, transferable to subsequent owners
as therein provided, bearing interest from date at the rate per
annum set forth below opposite each principal maturity, all
interest payable August 1, 1990 and semiannually thereafter on the
1st days of February and August in each year, and the principal
maturing on the 1st day of February, in the years and amounts, as
follows:
....,
61996.1
2
, ~
Year Amount Rate Year Amount Rate
,.., 1993 $ 50,000 6.25% 2005 $ 245,000 6.85 ~
0
1994 120,000 6.30 2006 265,000 6.90
1995 125,000 6.35 2007 285,000 7.00
1996 135,000 6.40 2008 305,000 7.00
1997 145,000 6.45 2009 330,000 7.00
1998 150,000 6.50 2010 355,000 7.00
1999 165,000 6.55 2016 2,750,000 7.125
2000 175,000 6.60
2001 185,000 6.65
2002 200,000 6.70
2003 215,000 6.75
2004 230,000 6.80
of which Series 1989 Bonds there is now outstanding $6,380,000 and
said Series 1989 Bonds have as security for the paYment thereof and
interest thereon certain revenues of the Authority to be received
pursuant to the original Lease (hereinafter defined) ; and
-
WHEREAS, all of the facilities acquired, constructed and
equipped pursuant to the capital Improvements Program (the "Leased
Facilities") were leased to the City pursuant to a Lease Contract,
dated as of september 1, 1989, between the Authority and the City
(the "Original Lease") and the city agreed to operate and maintain
the Leased Facilities financed with the proceeds of the Series 1989
Bonds and any additional bonds ranking on a parity with the Series
1989 Bonds; and
WHEREAS, the original Lease obligated the City to make Basic
Lease Payments (hereinafter defined) in an amount sufficient to
enable the Authority to pay principal of and interest on the Series
1989 Bonds as same become due and payable and the City agreed in
the original Lease to exercise its power of taxation to the extent
necessary to make such Basic Lease Payments; and
WHEREAS, to finance the remaining portion of the improvements
and undertakings set forth in the Capital Improvement Program, the
Authori ty authorized pursuant to that certain bond resolution
adopted February 5, 1990, as supplemented and amended by
resolutions adopted March 22, 1990 and April 2, 1990 (the "1990
Resolution") the issuance of, and actually issued and delivered,
$8,690,000 aggregate principal amount of its Revenue Bonds, Series
1990, dated February 1, 1990 (the "Series 1990 Bonds") in the form
of fully registered bonds without coupons, transferable to
subsequent owners as therein provided, bearing interest from date
at the rate per annum set forth below opposite each principal
maturity, all interest payable August 1, 1990 and semiannually
thereafter on the 1st day of February and August in each year, and
the principal maturing on the 1st day of February, in the years and
__ amounts as follows:
61996.1
3
Year Amount Rate Year Amount Rate
,.. 1992 $ 30,000 6.10% 2001 $ 255,000 7.10 9.:-
0
1993 95,000 6.25 2002 275,000 7.10
1994 165,000 6.35 2003 290,000 7.10
1995 175,000 6.45 2004 315,000 7.10
1996 185,000 6.55 2005 335,000 7.15
1997 195,000 6.65 2006 360,000 7.20
1998 210,000 6.75 2007 385,000 7.20
1999 225,000 6.85 2010 1,320,000 7.25
2000 240,000 6.95 2016 3,635,000 7.375
-
--
of which Series 1990 Bonds there is now outstanding $8,565,000 and
said Series 1990 Bonds, together with the Series 1989 Bonds, have
as security for the paYment thereof and interest thereon certain
revenues of the Authority to be received pursuant to the 1990 Lease
(hereinafter defined): and
WHEREAS, as provided in the original Resolution, the original
Lease was amended to reflect the issuance of the Series 1990 Bonds
and the increase in the Basic Lease PaYments necessitated thereby,
all as provided in that certain Amended and Restated Lease
Contract, dated as of September 1, 1989, between the Authority and
the City (the "1990 Lease"): and
WHEREAS, the Authority has received a recommendation from Lex
Jolley & Co., Inc., Atlanta, Georgia (the "Purchaser") that, due to
present market conditions, it is advisable, feasible and in the
best interest of the Authority that the outstanding Series 1989
Bonds maturing in the years 2007 through 2016, inclusive, in the
aggregate principal amount of $4,025,000 (the "Refunded Series 1989
Bonds") and the outstanding Series 1990 Bonds maturing in the years
2004 through 2016, inclusive, in the aggregate principal amount of
$6,350,000 (the "Refunded Series 1990 Bonds" and, together with the
Refunded Series 1989 Bonds, the "Refunded Bonds") be refunded at
this time in order to effect a savings in the debt service
requirements on the Authority's Refunded Bonds: and the Authority
has determined, after its own independent study and investigation,
that it is in its best interest to refund the Refunded Bonds as
aforesaid: and
WHEREAS, upon the further recommendation of the Purchaser,
with which the Authority concurs, it has been determined that the
refunding of the Refunded Bonds should be accomplished by making
due and legal provision for: (i) the paYment of the interest on
the Refunded Series 1989 Bonds to February 1, 1999 as the same
becomes due and payable, and the redemption on February 1, 1999 of
the Refunded Series 1989 Bonds at 102 percent of the principal
amount thereof plus accrued interest to the redemption date and
(ii) the paYment of the interest on the Refunded Series 1990 Bonds
to February 1, 1999 as the same becomes due and payable, and the
redemption on February 1, 1999 of the Refunded Series 1990 Bonds at
61996.1
4
-
102 percent of the principal amount thereof plus accrued interest
to the redemption date; and
WHEREAS, after said refunding there will be $2,355,000
aggregate principal amount of Series 1989 Bonds outstanding under
the Original Resolution (the "outstanding Series 1989 Bonds") and
there will be $2,215,000 aggregate principal amount of Series 1990
Bonds outstanding under the 1990 Resolution (the "outstanding
Series 1990 Bonds"); and
WHEREAS, to accomplish the foregoing objectives and purposes,
the Authority proposes to issue its Revenue Refunding Bonds, Series
1993 more fully described in the 1993 Resolution (hereinafter
defined) and the city has concurred in the Authority's
determination and has concluded that the refunding is in the best
interests of the city in that it will reduce the Basic Lease
Payments; and
WHEREAS, as required by the original Resolution, as ratified,
reaffirmed, broadened and extended by the 1990 Resolution
(collectively, the "Prior Resolutions"), the Authority will execute
and deliver this Second Amended and Restated Lease Contract, dated
as of September 1, 1989, with the city (the "Lease") which will
reflect the issuance of the proposed Series 1993 Bonds and the
change in the Basic Lease payments necessitated thereby; and
.. WHEREAS, the Series 1989 Bonds and the Series 1990 Bonds are
the only revenue obligations of the Authority now outstanding
having as security for the payment thereof certain revenues of the
Authority to be received pursuant to the 1990 Lease, and the
Authority has been and is now complying in all respects with the
terms, provisions and covenants of the Prior Resolutions and is
maintaining the respective special funds therein created in the
full amount as required; and
WHEREAS, upon the provision being made for the payment of the
Refunded Bonds, same will no longer be outstanding and no longer
constitute a lien against the revenues received by the Authority
pursuant to the 1990 Lease; however, the terms, conditions,
provisions and covenants of the Prior Resolutions will be brought
forward, ratified, reaffirmed, broadened and extended by this
resolution and made applicable to the Series 1993 Bonds as though
the Series 1993 Bonds had been issued simultaneously under
authority of the Prior Resolutions and the Authority will continue
to comply in all respects with the applicable terms, covenants and
provisions of the Prior Resolution so long as the outstanding
Series 1989 Bonds, the outstanding Series 1990 Bonds and the Series
1993 Bonds and any parity bonds therewith are outstanding and
unpaid or until provision has been duly made for the payment
thereof; and
-.
WHEREAS, the Authority will apply the proceeds received from
the sale of the Series 1993 Bonds, less accrued interest and
61996.1 5
...
amounts to be used to pay costs of issuance, to the purchase of
certain direct obligations of the united states of America to be
held pursuant to an Escrow Deposit Agreement, dated the date of the
issuance and delivery of the Series 1993 Bonds, between the
Authority and Bank South, N .A., the Paying Agent for both the
Series 1989 Bonds and the Series 1990 Bonds, as Escrow Agent (the
"Escrow Agreement"); and the principal of and interest on said
direct obligations will be sufficient to pay the interest on and
redemption price of the Refunded Bonds; and
WHEREAS, in order to provide for the issuance of the Series
1993 Bonds, it is necessary for the Authority and the City to enter
into this Lease to reflect the issuance of the Series 1993 Bonds
and the defeasance of the Refunded Bonds; and
WHEREAS, Article IX, section III, Paragraph I of the
Constitution of the State of Georgia of 1983 authorizes
intergovernmental contracts between any " county,
municipality, school district or political subdivision of the state
with each other or any other public agency, public
corporation, or public authority for j oint services, for the
provision of services, or for joint or separate use of facilities
or equipment; but such contracts must deal with activities,
services and facilities which the contracting parties are
authorized by law to undertake or provide. . ."; and
...
WHEREAS, pursuant to the provisions of Article IX, Section II,
Paragraph III of the Constitution of the state of Georgia of 1983,
municipalities are empowered to provide parks, recreational areas,
programs and facilities, libraries, archives, and arts and sciences
programs and facilities and, therefore, the city is authorized to
provide such facilities and to levy taxes to provide such
facilities; and
WHEREAS, pursuant to section 6(14) of the Authority Act, the
Authority is authorized to execute contracts and other instruments
necessary or convenient to exercise its powers, including, but not
1 imi ted to, contracts for construction of proj ects , leases of
proj ects, contracts for sale of proj ects, and contracts with
respect to use of projects; and
WHEREAS, pursuant to Section 6(21) of the Authority Act, the
Authority is authorized to contract for any period not exceeding 50
years with the State of Georgia, state institutions or any
municipality, county or political subdivision of the State; and
NOW, THEREFORE, in consideration of the premises and
undertakings as hereinafter set forth, it is agreed by the
Authority and the City, each acting by and through its duly
authorized officers, pursuant to resolutions duly adopted and
.. properly passed, and in consideration of the respective
considerations and contracts hereinafter contained, the Authority
and the City agree as follows:
61996.1
6
....
ARTICLE I.
DEFINITIONS
In addition to the words and terms elsewhere defined in this
Second Amended and Restated Lease Contract, the following words and
terms as used in this Second Amended and Restated Lease Contract
shall have the following meanings unless the context or use
indicates another or different meaning or intent and such
definitions shall be equally applicable to both the singular and
plural forms of the words and terms herein defined:
"Additional. Bonds" means any of the Authority's revenue bonds
ranking on a parity with the outstanding Series 1989 Bonds, the
outstanding Series 1990 Bonds and the Series 1993 Bonds which may
hereafter be issued pursuant to the Resolution.
"Authority" shall mean the Downtown Smyrna Development
Authority, its successors and assigns.
"Authority Act" shall mean Georgia Laws 1989, p. 4382 et seq.
-
"Basic Lease Payments" means an amount equal to the principal
of and the interest on the Bonds coming due on the next succeeding
February 1 and an amount equal to the interest on the Bonds coming
due on the next succeeding August 1 in each year; provided,
however, the Lessee shall receive a credit against any Basic Lease
Payment to the extent moneys are on deposit in the Sinking Fund and
not previously credited to a Basic Lease PaYment. In addition to
the foregoing, each Basic Lease Payment shall include the charges
as billed specified in subparagraphs (e), (f) and (g) of section 3,
Article V of the original Resolution as broadened and extended by
the 1990 Resolution and 1993 Resolution and any deficit in any
preceding Basic Lease Payment.
"Bondowner" and "bondowner" means the registered owner of any
of the outstanding Bonds.
"Bonds" shall mean any revenue bonds authorized by and issued
pursuant to the Resolution, including the outstanding Series 1989
Bonds, the outstanding Series 1990 Bonds, the Series 1993 Bonds and
any Additional Bonds of the Authority issued pursuant to the
Resolution.
"capi tal. Improvement program" shall mean the Smyrna Master
Plan, Phase I: Community Center and Library Project No. 88190,
dated September, 1989, prepared by Sizemore Floyd Architects,
Atlanta, Georgia, for the Lessee and the Authority.
_ "ci ty" or "Lessee" means the city of Smyrna, its successors
and assigns.
61996.1
7
.
"Fiscal Year" means the fiscal year for the City as may be
__ designated by appropriate proceedings of the City.
"Lease" or "contract" means this Second Amended and Restated
Lease Contract, as from time to time amended.
"Lease Term" shall have the meaning specified in Section 4.1
hereof.
"Leased Facilities" means the facilities and real property
financed with the proceeds of the Series 1989 Bonds, the Series
1990 Bonds and Additional Bonds issued by the Authority; including,
without limitation, all real property owned by the Authority and
located in Cobb County, Georgia.
"1990 Resolution" means that certain bond resolution of the
Authority adopted on February 5, 1990, as supplemented and amended
March 22, 1990 and April 2, 1990, authorizing the issuance of the
Series 1990 Bonds.
"1993 Resolution" means that certain bond resolution of the
Authority adopted March 11, 1993 authorizing the issuance of the
Series 1993 Bonds.
..
"original Resolution" means that certain bond resolution of
the Authority adopted september 5, 1989, as supplemented November
8, 1989, authorizing the issuance of the Series 1989 Bonds.
"outstanding series 1989 Bonds" means the Series 1989 Bonds
excluding the Refunded Series 1989 Bonds.
"outstanding Series 1990 Bonds" means the Series 1990 Bonds
excluding the Refunded Series 1990 Bonds.
"permi tted Encumbrances" means liens and encumbrances existing
on the date of acquisition by the Authority of any Leased
Facilities, excluding, however, any liens and encumbrances securing
any indebtedness for borrowed money.
"Permitted Investments" shall mean and include any of the
following securities, if and to the extent the same are at the time
legal for investment of Authority funds:
(i) any bonds or other obligations of the City of
Smyrna, Cobb County or bonds or obligations of the State of
Georgia or of other counties, municipal corporations and
political subdivisions of the State of Georgia which are rated
II A II or better by Moody's Investors Service or Standard &
Poor's corporation;
.. (ii) any bonds or other obligations which as to principal
and interest constitute direct obligations of, or are
unconditionally guaranteed by, the United States of America,
61996.1 8
~
including obligations of any of the federal agencies set forth
in clause (iii) below to the extent unconditionally guaranteed
by the united states of America;
(iii) obligations of the Federal National Mortgage
Association, the Government National Mortgage Association, the
Federal Financing Bank, the Federal Intermediate Credit Banks,
Federal Banks for cooperatives, Federal Home Loan Banks,
Farmers Home Administration and Federal Home Loan Mortgage
Association;
-
(iv) negotiable certificates of deposit issued by any
bank or trust company organized under the laws of any state of
the United states of America or any national banking
association, provided that such certificates of deposit must
be purchased directly from such bank, trust company or
national banking association and must be either (a) continu-
ously and fully insured by the Federal Deposit Insurance
corporation, or (b) continuously and fully secured by such
securities as are described in clauses (ii) and (iii) above
which (1) have a market value (exclusive of accrued interest)
at all times at least equal to the principal amount of such
certificates of deposit, (2) are lodged with the particular
fund custodian or an agent acting solely on behalf of the
particular fund custodian, and (3) are subject to a security
interest in favor of the particular fund custodian and not
subject to any security interest in favor of any other person.
Additionally, the bank, trust company or national banking
association issuing each such certificate of deposit required
to be so secured must furnish the particular fund custodian
wi th an undertaking satisfactory to it that the aggregate
market value of all such obligations securing each such
certificate of deposit will at all times be an amount equal to
the principal amount of each such certificate of deposit;
(v) any repurchase agreement with any bank organized
under the laws of any state of the United states of America or
any national banking association, provided if such bank's or
association's principal office is located outside Cobb County,
such bank or association either (a) has a long term debt
rating by Moody's Investors Service and Standard & Poor's
Corporation at least as high as the rating on the Series 1993
Bonds and in no event lower than "A," or (b) has a capital and
surplus at least equal to $100,000,000; provided that such
repurchase agreement is secured by anyone or more of the
securities described in clauses (ii) and (iii) above and in
the manner described in clause (iv) above; and
(vi) pooled investment programs sponsored by the State of
Georgia for the investment of local government funds.
W "Project Fund" shall mean the Downtown Smyrna Development
Authority Project Fund created in the Resolution.
61996.1
9
..,
"project Fund Depository" means initially Smyrna Bank and
Trust Co., Smyrna, Georgia, its successors and assigns or any
successor depository for the Project Fund hereafter appointed by
the Authority with the approval of the Lessee; provided, however,
the Project Fund Depository shall at all times be a commercial
bank.
"Refunded Bonds" means collectively the Refunded Series 1989
Bonds and Refunded Series 1990 Bonds.
"Refunded series 1989 Bonds" means the Series 1989
maturing in the years 2007 through 2016, inclusive,
aggregate principal amount of $4,025,000.
"Refunded series 1990 Bonds" means the Series 1990 Bonds
maturing in the years 2004 through 2016, inclusive, in the
aggregate principal amount of $6,350,000.
Bonds
in the
"Resolution" means the original Resolution, as ratified,
reaffirmed, broadened and extended by the 1990 Resolution and the
1993 Resolution, and as same may be supplemented from time to time.
"Revenue Bond Law" means the Revenue Bond Law, Title 36,
Chapter 82, Article 3 of the Official Code of Georgia Annotated, as
amended, and as same may hereafter be amended from time to time.
..
"series 1989 Bonds" means the $6,430,000 aggregate principal
amount of the Authority's Revenue Bonds, Series 1989 issued
pursuant to the Resolution.
"Series 1990 Bonds" means the $8,690,000 aggregate principal
amount of the Authority's Revenue Bonds, Series 1990 issued
pursuant to the Resolution, including specifically section 1 of the
1990 Resolution.
"Series 1993 Bonds" means the $11,985,000 aggregate principal
amount of the Authority's Revenue Refunding Bonds, Series 1993
authorized to be issued pursuant to the Resolution, specifically
section 1 of the 1993 Resolution.
"sinking Fund" shall mean the Downtown Smyrna Development
Authority sinking Fund created in the Resolution.
"sinking Fund custodian" means initially Smyrna Bank and Trust
Co., Smyrna, Georgia, its successors and assigns, or any successor
custodian for the Sinking Fund hereafter appointed by the
Authority; provided, however, the Sinking Fund Custodian shall at
all times be a commercial bank or trust company.
"sinking Fund Year" shall mean the period commencing on the
2nd day of February in each year and extending through the 1st day
~ of February in the next year.
61996.1
10
, .
ARTICLE II.
..,
REPRESENTATIONS
section 2.1. ReDresentations bv the Authori tv. The Author-
i ty makes the following representations as the basis for the
undertakings on its part herein contained:
(a) The Authority is authorized to enter into the
transactions contemplated by this Lease and to carry out its
obligations hereunder, has been duly authorized to execute and
deliver this Lease and will do or cause to be done all things
necessary to preserve and keep in full force and effect its
status and existence;
(b) The issuance and sale of the Bonds, the execution
and delivery of this Lease, the adoption of the Resolution,
and the performance of all covenants and agreements of the
Authority contained in this Lease and the Resolution and of
all other acts and things required under the Constitution and
laws of the state of Georgia to make this Lease a valid and
binding obligation of the Authority in accordance with its
terms are authorized by law and have been duly authorized by
proceedings of the Authority adopted at public meetings
thereof duly and lawfully called and held;
...
(c) The Authority has not made, done, executed or
suffered, and warrants that it will not make, do, execute or
suffer, any act or thing whereby its title to and interest in
the Leased Facilities will or may be impaired or encumbered in
any manner except as permitted herein and the Resolution and
except for acts or things done or permitted by the Lessee; and
(d) There is no litigation or proceeding pending, or to
the knowledge of the Authority threatened, against the
Authority or against any person having a material adverse
effect on the right of the Authority to execute this Lease or
the ability of the Authority to comply with any of its
obligations under this Lease.
section 2.2. ReDresentations and Aareements bv the Lessee.
The Lessee makes the following representations and agreements:
(a) The Lessee is a political subdivision under the laws
of the state of Georgia having power to enter into and execute
and deliver this Lease and, by proper action of its governing
body, has authorized the execution and delivery of this Lease
and the taking of any and all such actions as may be required
on its part to carry out, give effect to and consummate the
transactions contemplated by this Lease and the Resolution,
and no approval or other action by any governmental authority,
~ agency, or other person is required in connection with the
61996.1 11
delivery and performance of this Lease by it except as shall
have been obtained as of the date hereof;
.",
(b) This Lease has been duly executed and delivered by
the Lessee and constitutes its legal, valid and binding
obligation enforceable in accordance with its terms, except as
enforcement may be limited by the application of equitable
principles;
(c) The Lessee does not rely on any warranty of the
Authority, either express or implied, except as provided
herein, as to any title to or condition of the Leased
Facilities or that the Leased Facilities will be suitable to
the Lessee's needs, and the Lessee recognizes that the
Authority is not authorized to expend any funds for the Leased
Facilities other than rental revenue received by it therefrom
hereunder or the proceeds of the Bonds;
(d) The authorization, execution, delivery and
performance by the Lessee of this Lease and compliance by the
Lessee with the provisions thereof do not violate the laws of
the state of Georgia relating to the Lessee or constitute a
breach of or a default under, any other law, court order,
administrative regulation or legal decree, or any agreement or
other instrument to which it is a party or by which it is
bound;
..
(e) There is no litigation or proceeding pending, or to
the knowledge of the Lessee threatened, against the Lessee or
any other person having a material adverse affect on the right
of the Lessee to execute this Lease or its ability to comply
with any of its obligations under this Lease.
(f) During the Lease Term, the Lessee shall restrict the
extent and nature of the use of the Leased Facilities for
"private business use" as said term is defined in section 141
of the Internal Revenue Code of 1986, as amended, so as to
preserve the exclusion from gross income for federal income
taxation purposes applicable to the interest paid on the
Bonds. The Lessee will not enter into subleases or management
contracts for portions of the Leased Facilities with any
person or entity other than a governmental unit. The Lessee
will permit the use of the Leased Facilities by non-exempt
persons only for short periods of time on a rate-scale basis
so that the rights and interests of such non-exempt persons
shall be only those of a transient occupant rather than full
legal possessory interests. The Lessee may enter into
concessionaire contracts provided the following conditions are
met:
(i) The contract (including renewal options) does
~ not exceed five years;
61996.1 12
...
(ii) Compensation to the concessionaire is not based
on net profits from the operations:
(iii) The Lessee (or Authority) has the option to
cancel the contract without penalty at the end of any three
year period: and
(iv) At least 50 percent of the compensation to the
concessionaire must be on a fixed fee basis (i.e. the other
portion can be on the basis of gross revenue).
ARTICLE III.
LEASING: ISSUANCE OF BONDS: PROCEEDS:
COMMENCEMENT AND COMPLETION OF THE PROJECTS
section 3.1. Leasina. The Authority hereby leases to the
Lessee, and the Lessee hereby leases from the Authority, the Leased
Facilities at the rental set forth in Section 4.3 hereof and in
accordance with the provisions of this Lease. The Authority makes
no warranties to the Lessee with respect to the Leased Facilities.
..
section 3.2. Aareement to Issue the Bonds: ADDlication of
Bond Proceeds. The Authority agrees that it will validate and
cause to be issued the Series 1993 Bonds, the proceeds of which
shall be applied as provided in the 1993 Resolution and the city
hereby approves the issuance of the Series 1993 Bonds and the
refunding of the Refunded Bonds as set forth in the 1993
Resolution.
section 3.3. pro;ect Fund Moneys. The City and the Autho-
rity agree to cooperate with each other and will take such action
to the extent reasonably necessary to apply for and/or receive any
grants, gifts or donations to be applied to the cost of additions,
extensions and improvements to the Leased Facilities in accordance
wi th the Capital Improvement Program or any program or report
approved and ratified by the Authority and the city with respect to
any issue of Bonds. Any costs and expenses incurred in connection
with the issuance and delivery of any Bonds not paid by the
purchaser of any Bonds shall be borne by the City and shall be paid
for the account of the city.
section 3.4.
Pro;ects.
Aareement to Acauire
and Construct the
(a) The Authority has heretofore appointed, and hereby
reaffirms the appointment of, the Lessee as its agent to complete
the capital Improvement Program. The Lessee shall continue to
obtain or cause to be obtained all necessary approvals from any and
,., all governmental agencies requisite to undertaking the capital
Improvement Program and the proj ects described in the capi tal
Improvement Program shall continue to be acquired, constructed and
61996.1
13
-
...
, ~
installed in compliance with all federal, state and local laws,
ordinances and regulations applicable thereto. The Lessee will
continue to take or cause to be taken such action and institute or
cause to be instituted such proceedings as it shall deem
appropriate to cause and require all contractors and suppliers of
materials to complete their contracts, including the correcting of
any defective work, and the Authority agrees that the Lessee may,
from time to time, in its own name, or in the name of the
Authority, take or cause to be taken such action as may be
necessary or advisable, as determined by the Lessee, to assure that
the construction and the installation of such projects will proceed
in an efficient and workmanlike manner. Any amounts recovered by
way of damages, refunds, adjustments or otherwise in connection
with the foregoing shall (i) if Lessee has corrected at its own
expense the matter which gave rise to such default or breach, be
paid to the Lessee or (ii) if Lessee has not corrected at its own
expense the matter which gave rise to such default or breach, be
paid into the Project Fund.
(b) The Lessee, as agent for the Authority has completed the
acquisition, construction, installation and equipping, or caused to
be acquired, constructed, installed and equipped, the proj ects
described in the capital Improvement Program. All real or tangible
personal property acquired from time to time by the Lessee as agent
for the Authority in accordance herewith has been or shall be
transferred, by appropriate deed or other instrument, to the
Authority subject only to Permitted Encumbrances: and the Authority
has or shall accept title to such property which shall constitute
a part of the Leased Facilities.
(c) The Lessee has created on its books and records special
accounts for the Project Fund as to any issue of Bonds providing
Project Fund moneys, a separate account each of which has been
designated as "Series capital Improvement Account"
(hereinafter referred to as a "capital Improvement Account"). The
moneys credited to the Series 1989 capital Improvement Account and
series 1990 capital Improvement Account were used and applied for
the purpose of paying the cost of the projects described in the
capi tal Improvement Program and otherwise disbursed as herein
provided. The moneys derived from the sale of any Additional Bonds
under the Resolution (other than Additional Bonds issued to refund
outstanding Bonds) to be credited to any future capital Improvement
Account shall be used and applied for the purpose of paying the
cost of additions, extensions and improvements to the Leased
Facilities in accordance with the capital improvement program or
report approved and ratified by the Authority and the city with
respect to each such issue of Additional Bonds.
(d) All payments from the Project Fund shall be made upon
checks signed by the officers of the City properly authorized to
..., sign on its behalf, but before they shall sign any such checks
there shall be filed with the Project Fund Depository:
61996.1
14
--
(1) A requisition for such payment (the above-mentioned
checks may be deemed a requisition for the purpose of this
Section), stating each amount to be paid, and the name of the
person, firm or corporation to whom payment thereof is due:
and
(2) A certificate signed by such officers, attached to
the requisition and certifying:
( i) That an obl igation in the stated amount has
been incurred by the City on behalf of the Authority, and that
the same is a proper charge against the Project Fund and has
not been paid, specifying the purpose and circumstances of
such obligation in reasonable detail and to whom such obliga-
tion is owed, accompanied by the bill or statement of account
for such obligation, or a copy thereof:
(ii) That they have no notice of any vendor's,
mechanic's or other liens or rights to liens, chattel
mortgages, conditional sales contracts or any security
interest, which should be satisfied or discharged before such
payment is made:
...
(iii) That such requisition contains no item repre-
senting payment on account or any retained percentages which
the Authority or the City is, at the date of such certificate,
entitled to retain: and
(iv) That insofar as such obligation was incurred
for work, materials, supplies or equipment in connection with
the undertaking, such work was actually performed, or such
materials, supplies or equipment were actually installed in or
about the construction or delivered at the site of the work
for that purpose: and
(e) Simultaneously with any payment from the Project Fund
with respect to the acquisition of any real property (or interests
therein), the city shall cause to be transferred to the Authority
such real property (or interests therein), free of any liens and
encumbrances, and the same shall constitute part of the Leased
Facilities.
(f) The city will do or cause to be done all things, and take
or cause to be taken all reasonable and prudent measures, necessary
to continue construction with due diligence and to expend the
moneys credited to each Capital Improvement Account in the Project
Fund as expeditiously as possible in order to assure the completion
of the proj ects for which such accounts were created, on the
earliest practicable date, and will indemnify itself against the
usual hazards incident to the construction of such projects, and
__ without in any way limiting the generality of the above, agrees to:
(a) require each construction contractor, and each subcontractor to
furnish a bond, or bonds, of such type and in amounts adequate to
61995.1
15
assure the faithful performance of their contracts and the payment
of all bills and claims for labor and material arising by virtue of
.. such contract; and (b) require each construction contractor or the
subcontractor to maintain at all times until the completion and
acceptance of the undertaking adequate compensation insurance for
all of their employees and adequate public liability and property
damage insurance for the full and complete protection of the
Authority or the city from any and all claims of every kind and
character which may arise by virtue of the operations under their
contracts, whether such operations be by itself or by anyone
directly or indirectly for it, or under its control.
(g) All requisitions and certificates required by this
Section shall be retained either by the Project Fund Depository or
by the Authority or the city, subject at all times to inspection by
any officer of the Authority or any bondowner.
section 3.5. In Event proiect Fund Insufficient. The
Authority does not make any warranty, either express or implied,
that the moneys which will be paid into the Project Fund under the
provisions of this Lease will be sufficient to pay all the costs of
the projects which will be incurred in that connection. The Lessee
agrees that, if after exhaustion of the moneys in the Project Fund
the Lessee should pay any portion of the costs of the projects, it
shall not be entitled to any reimbursement therefor from the
Authority or from the owners of any of the Bonds, nor shall it be
~ entitled to any diminution in or postponement or abatement of the
amount of the rents and other amounts payable under Article IV
hereof.
section 3.6. Investment of proiect Fund Monevs Permitted.
Any moneys held in the Project Fund shall be invested or reinvested
at the direction of the city in Permitted Investments.
ARTICLE IV.
EFFECTIVE DATE OF THIS LEASE; DURATION
OF LEASE TERM; RENTAL PROVISIONS; FLOW OF FONDS
...
section 4.1. Effective Date of this Lease; Duration of Lease
Term. This Lease shall become effective as of September 1, 1989
upon its recordation in the offices of the Clerk of superior Court
and the leasehold interest created by this Lease shall then begin,
and, subject to the other provisions of this Lease (including
particularly Article VIII hereof), shall expire February 2, 2016,
or if at said time and on said date all of the Bonds have not been
paid in full, then on such date as such payment shall have been
made, but in no event in excess of 50 years from the date hereof.
Upon said recordation hereof, the 1990 Lease shall be, and hereby
is, terminated.
61996.1
16
section 4.2. Deli verY and AcceDtance of Possession. The
Authority has heretofore delivered and the Lessee has accepted
.. delivery of the Leased Facilities and such delivery and acceptance
is hereby ratified and reaffirmed. The Lessee agrees to operate,
maintain and insure or cause to be operated, maintained or insured
the Leased Facilities on a sound, businesslike basis and to accept
delivery of additions to the Leased Facilities as herein
contemplated.
section 4.3.
Basic Lease Payments.
On or before January 15 and July 15 of each year, the City
shall make the Basic Lease PaYments to the Authority. If such date
is January 15, the City shall pay an amount sufficient to pay the
principal of and interest on the Bonds coming due on February 1,
and if such date is July 15, the City shall pay an amount
sufficient to pay the interest on the Bonds coming due on August 1,
and such Basic Lease PaYments shall continue and recontinue until
provision has been made for the paYment in full of the Bonds. In
addition to the foregoing, each Basic Lease PaYment shall include
the charges as billed specified in subparagraphs (e), (f) and (g)
of section 3, Article V of the original Resolution. The Basic
Lease PaYments provided for herein shall be made by paYment
directly to the Sinking Fund Custodian for deposit into the sinking
Fund.
., section 4.4. oDeratinq EXDenses. The City shall payor
cause to be paid the reasonable and necessary costs of operating,
maintaining and repairing the Leased Facilities, including
salaries, wages, employee benefits, the paYment of any contractual
obligations incurred pertaining to the operation of the Leased
Facilities, cost of materials and supplies, rentals (excluding
Basic Lease PaYments) of leased property, real or personal,
insurance premiums, audit fees, any incidental expenses of the
Authority and such other charges as may properly be made for the
purpose of operating, maintaining and repairing the Leased
Facilities in accordance with sound business practice.
section 4.5.
Bonds.
oDtional PreDavment of Rent: RedemDtion of
....
(a) The rent due under section 4.3 shall be subject to pre-
payment, in whole or in part, for the purpose of calling and
redeeming, at the option of the City, all or part of the Bonds in
accordance with the applicable provisions of the Resolution,
provided, however, that the funds used to prepay such rent have
been deposited to the Sinking Fund prior to the giving of notice to
redeem by the Bond Registrar (as defined in the Resolution) to the
bondowners, and the Lessee shall pay all costs which may be
incurred in connection with the call of the Bonds to be redeemed
together with any applicable redemption premium.
51996.1
17
....
.,
...
, .
(b) No prepayment of any amount of rent in accordance with
the provisions of the preceding subsection shall relieve the Lessee
to any extent from its obligations thereafter to make the full
Basic Lease Payments required by the provisions hereof until all
the Bonds issued under the Resolution and the interest thereon and
the charges of the Bond Registrar and Paying.Agent (as defined in
the Resolution) have been paid in full. Upon any prepayment of
rent, as authorized by the preceding subsection, in part, the Bonds
to be redeemed shall be called for redemption by lot or in such
other manner prescribed by the Resolution. Upon the prepayment of
such rent in whole, the amount of such prepayment shall be used to
retire all outstanding Bonds in the manner provided in, and subject
to, the Resolution.
Section 4.6. Obliqations of Lessee Hereunder Absolute and
Unconditional. The obligation of the Lessee to make the payments
required in Section 4.3 hereof and to perform and observe the other
agreement on its part contained herein shall be absolute and
unconditional. until such time as the principal of and interest on
the Bonds outstanding under the Resolution shall have been paid in
full or provision for the payment thereof shall have been made in
accordance with the Resolution, the Lessee (i) will not suspend or
discontinue any payments provided for in section 4.3 hereof except
to the extent the same have been prepaid, (ii) will perform and
observe all of its other agreements contained in this Lease, and
(iii) except as provided in Article VIII hereof, will not terminate
the Lease Term for any cause, including, without limiting the
generality of the foregoing, failure of the Authority's or the
City's title in and to the Leased Facilities or any part thereof,
failure to acquire, construct or equip all or any part of the real
property as contemplated in the capital Improvements Program, any
acts or circumstances that may constitute failure of consideration,
eviction or constructive eviction, destruction of or damage to the
Leased Facilities, commercial frustration of purpose, any change in
the tax or other laws of the united States of America or of the
state of Georgia or any political subdivision of either or any
failure of the Authority to perform and observe any agreement,
whether express or implied, or any duty, liability or obligation
arising out of or connected with this Lease or the Resolution.
Nothing contained in this section shall be construed to release the
Authority from the performance of any of the agreements on its part
herein contained: and if the Authority should fail to perform any
such agreement, the Lessee may institute such action against the
Authority as the Lessee may deem necessary to compel performance or
recover its damages for nonperformance as long as such action shall
not do violence to or adversely affect the agreements on the part
of the Lessee contained in the preceding sentence and to make the
payments specified in section 4.3 hereof: provided, however any
liability of the Authority shall be payable solely from rents,
revenues and receipts arising from the Authority's interest in the
Leased Facilities. The Lessee may, however, at its own cost and
expense and in its own name or in the name of the Authority,
prosecute or defend any action or proceeding or take any other
61996.1
18
. .
action involving third persons which the Lessee deems reasonably
necessary in order to insure the acquisition and construction of
.. the Leased Facilities or to secure or protect its right of
possession, occupancy and use hereunder, and in such event the
Authority hereby agrees to cooperate fully with the Lessee and to
take all lawful action which is required to effect the substitution
of Lessee for the Authority in any such action or proceeding if the
Lessee shall so request.
section 4.7.
Tax Levv to Pay Basic Lease Payments.
(a) The obligations of the Lessee to make the Basic Lease
Payments when due under section 4.3 hereof, and to perform its
other obligations hereunder, are absolute and unconditional as
herein provided, and the Lessee hereby pledges its full faith and
credit to such payment and performance.
....
(b) The Lessee covenants that, in order to make any Basic
Lease Payments when due from its general funds to the extent
required, it will exercise its power of taxation to the extent
necessary to pay any amounts required to be paid hereunder and it
will make available and use for such payments all taxes levied and
collected for that purpose together with funds received from any
other source. The Lessee further covenants and agrees that in
order to make funds available for such purpose, it will, in its
general revenue, appropriation and budgetary measures whereby its
tax funds or revenues and the allocation thereof are controlled or
provided for, include sums sufficient to satisfy any such Basic
Lease Payments that may be required to be made from the general
funds, whether or not any other sums are included in such measure,
until all payments so required to be made shall have been made in
full. The obligation of the Lessee to make any payments that may
be required to be made from its general funds shall constitute a
general obligation of the Lessee and a pledge of the full faith and
credit of the Lessee to provide the funds required to fulfill any
such obligation.
.,
(c) In the event for any reason any such provision or
appropriation is not made as provided in the preceding subsection
(b), then the fiscal officers of the Lessee are hereby authorized
and directed to set up as an appropriation on their accounts in the
appropriate fiscal year the amounts required to pay the obligations
which may be due from the general funds. The amount of such
appropriation shall be due and payable and shall be expended for
the purpose of paying any such obligations, and such appropriation
shall have the same legal status as if the Lessee had included the
amount of the appropriation in its general revenue, appropriation
and budgetary measures, and the fiscal officers of the Lessee shall
make such Basic Lease Payments to the sinking Fund Custodian for
deposit to the sinking Fund if for any reason the payment of such
obligations shall not otherwise have been made.
61996.1
19
. .
ARTICLE V
,..,
SPECIAL COVENANTS OF CITY
The city covenants and agrees with the Authority for the bene-
fit of the bondowners as follows:
Section 5.1. Rules and Requlations. That it will enforce or
cause to be enforced reasonable rules and regulations governing the
Leased Facilities and the operation thereof, and that all
compensation, salaries, fees and wages paid or caused to be paid by
it in connection with the operation, repair and maintenance of the
Leased Facilities will be reasonable, and that no more persons will
be employed than are necessary, and that it will operate or cause
to be operated same in an efficient and economical manner, and will
at all times maintain or cause to be maintained the same in good
repair and in sound operating condition, and will make or cause to
be made all necessary repairs, renewals and replacements, and that
it will comply or cause to be complied with all valid acts, rules,
regulations, orders and directions of any legislative, executive,
administrative or judicial body applicable to such undertaking and
enterprise.
lilIIIr
section 5.2. contractinq Procedure. That any contract rela-
ting to the installation, extension, improvement, maintenance or
repair of any facilities shall provide for retention of amounts due
thereunder in accordance with applicable law.
section 5.3. Liens. That, except as herein provided and
except for Permitted Encumbrances, the city will not create or
suffer to be created, in the operation and maintenance of the
Leased Facilities, any lien, security interest or charge thereon,
or any part thereof, and that it will pay, or cause to be dis-
charged, or will make adequate provisions to satisfy and discharge,
within sixty (60) days after the same shall accrue, all lawful
claims and demands for labor, materials, supplies or other objects,
which, if unpaid, might by law become a lien upon the Leased
Facilities, or any part thereof; provided, however, that nothing
contained in this Section shall require the City to pay, or cause
to be discharged, or make provision for, any such lien, security
interest or charge, so long as the validity thereof shall be
contested in good faith and by appropriate legal proceedings.
section 5.4. Insurance. That, to the extent deemed
necessary, it will cause to be bonded its employees or agents
handling funds of the Leased Facilities in amounts adequate for its
protection and it shall procure and maintain or cause to be
maintained insurance on the physical properties of the Leased
Facilities of the kinds and in the amounts normally carried by
private companies or other agencies engaged in the operation of
similar properties so long as any Bonds are outstanding. Such
.. insurance shall include: (a) fire and extended coverage insurance
on the insurable portions of the Leased Facilities with a
61996.1
20
,.,
....
..
, .
responsible insurance company or companies authorized and qualified
to do business under the laws of the state of Georgia; (b) public
liability insurance relating to the operation of the Leased
Facilities; and (c) vehicular public liability insurance on any
vehicle owned or operated by the city and used in the operation of
the Leased Facilities. Such insurance may provide reasonable and
customary coverage and deductibles for agencies and governmental
authorities operating similar facilities, provided that such
insurance in such amount is available at a cost which, in the
opinion of the City, will not impose an unreasonable financial
burden, or the City may self insure against such claims and risks,
or the City, in its discretion, may provide for any combination of
the foregoing. The proceeds of such fire and extended coverage
policies are pledged as security for the Basic Lease Payments, but
shall be available for and shall, to the extent necessary and
desirable, be applied to the repair and replacement of the damaged
or destroyed property. In the event the proceeds of such policies
are not used for that purpose, then same shall be deposited in the
sinking Fund. Proceeds from the fidelity bonds on employees and
agents shall be paid into the appropriate fund. All insurance
policies and fidelity bonds shall be open to the inspection of the
bondowners or their duly authorized representatives at all
reasonable times. All insurance policies shall name the Authority
as an additional insured.
section 5.5. sale of Assets. That so long as any of the
Bonds shall be outstanding, and except as in this Lease otherwise
permitted or provided for, it will not encumber the Leased
Facilities or any part thereof, and it will not sell or otherwise
dispose of the Leased Facilities or any integral part thereof,
except it may request the Authority to sell the Leased Facilities,
and the Authority shall sell the Leased Facilities if requested by
the City, as a whole, or substantially as a whole, if the proceeds
of such sale be at least sufficient to provide for the payment of
all Bonds secured by this Lease and any interest accrued or to
accrue thereon, and that the proceeds of any such sale shall be
deposited in trust and applied by the Authority to the extent
necessary to purchase or redeem such Bonds. Nothing contained
herein, however, shall preclude sale of a part of the Leased
Facilities, if the proceeds from such sale are used for other
public projects to be owned and operated by the City within the
geographic jurisdiction of the Authority, or for extensions and
improvements to the Leased Facilities, or deposited with the
Sinking Fund Custodian as prepayment of rent due hereunder and
applied toward the purchase or redemption of Bonds.
section 5.6. Arbi traqe. The Ci ty hereby covenants and
agrees that it will not, subsequent to the date of issuance and
delivery of any Bonds, intentionally use any portion of the
proceeds of any Bonds to acquire higher yielding investments,
except as may be otherwise permitted by Section 148 of the Internal
Revenue Code of 1986, as amended (the IICodell) and that, as directed
by the Authority in order to fulfill the Authority's obligations
61996.1
21
.
'-
under Article VII, section 5 of the Original Resolution, as
ratified, reaffirmed, broadened and extended by Section 13 of the
1990 Resolution and Section 19 of the 1993 Resolution, it will
comply with, and take such action and make such payments as may be
permitted or required by Section 148(f) of the Code, to ensure that
the Bonds do not constitute "arbitrage bonds" within the meaning of
section 148(a) of the Code and that it wilY expend the proceeds
from the sale of the Bonds and will take such action as may be
necessary so that the interest on the Bonds will be and will remain
excluded from gross income of the owners for federal income tax
purposes, including without limitation, compliance with provisions
of Sections 141-149 of the Code, as applicable. All expenses
incurred by the Authority in connection with its obligations under
Article VII, section 5 of the Original Resolution, Section 13 of
the 1990 Resolution and Section 19 of the 1993 Resolution shall be
paid by the city. The obligations of the City under this Section
5.6 shall survive termination of this Lease.
ARTICLE VI.
SPECIAL COVENANTS OF AUTHORITY AND CITY
....
section 6.1. No Warranty of Condition or suitability bv the
Authori tv. The Authority makes no warranty, ei ther express or
implied, as to the condition of the Leased Facilities or that it
will be suitable for the Lessee's purposes or needs.
Section 6.2. InsDection of the Leased Facilities. The
Lessee agrees that the Authority, the bondowners and their duly
authorized agents who are acceptable to the Lessee shall have the
right at reasonable times during business hours, subject to the
Lessee's usual safety and security requirements to examine and
inspect the Leased Facilities without interference or prejudice to
the Lessee's operations.
section 6.3. Grantinq of Easements: Sale. If no event of
default hereunder shall have happened and be continuing, the Lessee
may at any time or times cause to be granted, whether to itself or
otherwise, easements, licenses, rights-of-way (temporary or
perpetual and including the dedication of public highways) and
other rights or privileges in the nature of easements with respect
to any property included in the Leased Facilities and such grant
will be free from the lien or security interest of this Lease and
the Resolution or the Lessee may cause to be released existing
easements, licenses, rights-of-way and other rights or privileges
in the nature of easements, held with respect to any property
included in the Leased Facilities with or without consideration.
In connection with any such grant or any sale permitted by section
5.5 hereof, the Authority agrees that it shall execute and deliver
any instrument necessary or appropriate to confirm and grant or
.. release any such easement, license, right-of-way or other right or
privilege or asset.
61996.1
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. .
,.,
section 6.4. Further Assurances and corrective Instruments.
Recordinqs and Filinqs. The Authority and the Lessee agree that
they will, from time to time, execute, acknowledge and deliver, or
cause to be executed, acknowledged and delivered, such supplements
hereto and such further instruments as may reasonably be required
to perfect title in and to that portion of t~e Leased Facilities
leased or intended so to be or for carrying out the intention of or
facilitating the performance of this Lease.
section 6.5. Release Covenants. The Lessee releases the
Authority from, covenants and agrees that the Authority shall not
be liable for, all claims by or on behalf of any person arising
from: (1) the conduct or management of, or from any work or thing
done in or on, the Leased Facilities during the Lease Term; (ii)
any condition of the Leased Facilities, (iii) any breach or default
on the part of the Lessee in the performance of any of its
obligations under this Lease; (iv) any act of negligence of the
Lessee or of any agents, contractors, servants, employees or
licensees of the Lessee or of any lessee or tenant of the Lessee;
and (v) any loss or damage to property or any injury to or death of
any persons occurring on or about or resulting from any defect in
the Leased Facilities.
ARTICLE VII.
...
EVENTS OF DEFAULT AND REMEDIES
Section 7.1. Events of Default Defined. The following shall
be "events of default" under this Lease and the terms "event of
default" or "default" shall mean, whenever they are used in this
Lease, anyone or more of the following events:
(a) Failure by the Lessee to make the Basic Lease
Payments required to be paid under Section 4.3 hereof at the
times specified therein;
(b) Failure by the Lessee to observe and perform any
covenant, condition or agreement of this Lease on its part to
be observed or performed, other than as referred to in
subsection (a) of this Section, for a period of 30 days after
written notice, specifying such failure and requesting that it
be remedied, shall have been given to the Lessee by the
Authority or the bondowners, unless the Authority and the
bondowners shall agree in writing to an extension of such time
prior to its expiration; provided, however, if the failure
stated in the notice cannot be corrected within the period
specified herein, the Authority and the bondowners will not
unreasonably withhold their consent to an extension of such
time if it is possible to correct such failure and corrective
action is instituted by the Lessee within the applicable
__ period and diligently pursued until the default is corrected;
and
61996.1 23
(c) An "event of default" shall have occurred under the
Resolution.
,. section 7.2. Remedies on Default. Whenever any event of
default referred to in Section 7.1 hereof shall have happened and
be subsisting, the Authority, or the bondowners as provided in the
Resolution, may take anyone or more of the following remedial
steps:
(a) If the principal and interest accrued on the Bonds
shall have been declared immediately due and payable pursuant
to the Resolution, the Authority or the bondowners may, at its
option, declare all installments of rent payable under Section
4.3 hereof for the remainder of the Lease Term to be
immediately due and payable, whereupon the same shall become
immediately due and payable. If the Authority or the
bondowners elect to exercise the remedy afforded in this
Section 7.2 (a) and accelerates all rents payable under Section
4.3 hereof for the remainder of the Lease Term, the amount
then due and payable by the Lessee as accelerated rent shall
be the sum of (1) the aggregate principal amount of the
outstanding Bonds, (2) all interest then due on the Bonds and
(3) any other amounts which may be owing to the Authority
pursuant to this Lease. Such sums as may then become payable
shall be paid into the Sinking Fund and after the Bonds and
accrued interest thereon have been fully paid and any costs
occasioned by such default and the collection of the rents
.. have been satisfied, any excess moneys in the Sinking Fund
shall be returned to the Lessee as an overpaYment of rents;
(b) The Authority or the bondowners may seek the
appointment of a receiver for the Leased Facilities;
(c) The Authority or the bondowners may require the
Lessee to furnish copies of all books and records of the
Lessee pertaining to the Leased Facilities;
(d) The Authority or the bondowners may take whatever
action at law or in equity may appear necessary or desirable
to collect the rents then due and thereafter to become due, or
to enforce performance and observance of any obligation,
agreement or covenant of the Lessee under this Lease; and
(e) The Authority or the bondowners may exercise any
remedies provided for in the Resolution.
-
Any amounts collected pursuant to action taken under this Section
shall be paid into the Sinking Fund and applied in accordance with
the provisions of the Resolution or, if paYment in full of the
outstanding Bonds has been made (or provision for paYment thereof
has been made in accordance with the provisions of the Resolution),
to the Lessee.
61995.1
24
....
--
'W
. .
section 7.3. No Remedv Exclusive. No remedy herein con-
ferred upon or reserved to the Authority or the bondowners is
intended to be exclusive of any other available remedy or remedies,
but each and every such remedy shall be cumulative and shall be in
addition to every other remedy given under this Lease or now or
hereafter existing at law or in equity or by statute. No delay or
omission to exercise any right or power' accruing upon the
occurrence of any event of default shall impair any such right or
power or shall be construed to be a waiver thereof, but any such
right and power may be exercised from time to time and as often as
may be deemed expedient. In order to entitle the Authority or the
bondowners to exercise any remedy reserved to it in this Article,
it shall not be necessary to give any notice, other than such
notice or notices as may be herein expressly required. Such rights
and remedies as are given to the Authority hereunder shall also
extend to the bondowners, and the owners of the Bonds shall be
deemed third party beneficiaries of all covenants and agreements
herein contained.
Section 7.4. Aareement to pav Attornevs' Fees and Exoenses.
If the Lessee should default under any of the provisions of this
Lease and either or both the Authority or the bondowners should
employ attorneys or incur other expenses for the collection of
rents or the enforcement of performance or observance of any obli-
gation or agreement on the part of the Lessee herein contained, the
Lessee agrees that it shall on demand therefor pay to the Authority
and the bondowners the reasonable fee of such attorneys and such
other reasonable expenses so incurred by the Authority and the
bondowners.
Section 7.5. No Additional waiver ImDlied bv One Waiver. If
any agreement contained in this Lease should be breached by either
party and thereafter waived by the other party, such waiver shall
be limited to the particular breach so waived and shall not be
deemed to waive any other breach hereunder.
ARTICLE VIII
OPTION OF LESSEE
Section 8.1. unqualified oDtion to purchase. On and after
the effective date of this Lease and during the Lease Term and for
365 days after the expiration thereof, the Lessee shall have the
unconditional right and option to purchase the Leased Facilities at
any time.
Section 8.2. Purchase Price. The purchase price payable if
the Lessee purchases the Leased Facilities pursuant to the provi-
sions of this Article VIII shall be $100 to be paid to the
Authority plus the full amount necessary under the provisions of
the Resolution to cause the paYment in full of the Bonds
(including, without limitation, principal, interest, expenses of
61996.1
25
...
redemption and the Paying Agent's and Bond Registrar's fees accrued
and to accrue through final payment of the Bonds and all other
liabilities of the Lessee accrued under this Lease). In any case,
if no principal installment on the Bonds shall be outstanding at
the time of purchase, or the redemption or payment of the Bonds
shall be or have been otherwise provided for, the purchase price of
the Leased Facilities shall be $100 to be paid to the Authority.
section 8.3. Procedure For Exercisina oDtion to Purchase.
The Lessee may exercise its option to purchase hereunder by giving
written notice to the Authority, of its intention to purchase the
Leased Facilities pursuant to the provisions of this Article VIII
specifying the time and place of closing and by giving notice to
the Authority. At the closing the Authority shall, upon payment of
the purchase price hereinabove specified, deliver to the Lessee
appropriate conveyance instruments transferring all of its right,
title and interest in and to the Leased Facilities.
ARTICLE IX.
MISCELLANEOUS
..
section 9.1. Notices. All notices, certificates or other
communications hereunder shall be sufficiently given and shall be
deemed given when mailed by registered or certified mail, return
receipt requested, postage prepaid.
section 9.2. Bindina Effect. This Lease shall inure to the
benefit of and shall be binding upon the Authority, the Lessee and
their respective successors and assigns, subject, however, to the
limitations contained in this Lease.
section 9.3. Severability. If any provision of this Lease
shall be held invalid or unenforceable by any court of competent
jurisdiction, such holding shall not invalidate or render unen-
forceable any other provision hereof.
section 9.4. Amounts Remainina in sinkina Fund. It is
agreed by the parties hereto that, subject to and in accordance
with the terms and conditions of the Resolution certain surplus
moneys remaining in the Sinking Fund shall belong to and be paid to
the Lessee by the Authority as an overpayment of rents.
section 9.5. Amendments. Chanaes and Modifications. Except
as otherwise provided in this Lease or in the Resolution, prior to
payment in full of all Bonds (or provision for the payment thereof
having been made in accordance with the provisions of the
Resolution), this Lease may not be effectively amended, changed,
modified, altered or terminated without the requisite concurring
written consent of the bondowners in accordance with the
~ Resolution.
61996.1
26
. .
....,
section 9.6. Execution countert)arts. This Lease may be
simul taneously executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and
the same instrument.
'-
section 9.7. caDtions. The captions .and headings in this
Lease are for convenience only and in no way define, limit or
describe the scope or intent of any provisions of this Lease.
section 9.8. Law Governina Pro; ect of Lease. This Lease
shall be governed by, and construed in accordance with, the laws of
the state of Georgia.
section 9.9. RedemDtion of Bonds. The Authority, at the
request at any time of the Lessee, shall take all steps that may be
proper and necessary under the applicable redemption provisions of
the Resolution to effect the redemption of all or part of the then
outstanding Bonds as may be specified by the Lessee, on the
earliest redemption date on which such redemption may be effected.
It is understood that all expenses of such redemption shall be paid
by the Lessee and not from other funds of the Authority. The
Authority shall cooperate with the Lessee in effecting any purchase
or redemption of the Bonds.
section 9.10. Net Lease. This Lease shall be deemed a "net
lease," and the Lessee shall pay absolutely net during the Lease
Term the rents, revenues and receipts pledged hereunder, without
abatement, deduction or set-off other than those herein expressly
provided.
section 9.11. oDeratina contracts. Nothing contained in this
Lease shall affect or impair any existing agreements or contracts
between the city and the Authority regarding the operation and
management of the Leased Facilities.
.....
61996.1
27
I.. ",
IN WITNESS WHEREOF, the Authority and the Lessee have caused
this Lease to be executed in their respective corporate names and
___ their respective corporate seals to be hereunto affixed and
attested by their duly authorized officers, on March 11, 1993,
effective as of the date first above written.
THE AUTHORITY:
DOWNTOWN SMYRNA DEVELOPMENT AUTHORITY
(Corporate Seal)
By:
Chairman
Attest:
Secretary and Treasurer
As to the Authority, signed
and sealed in the presence of:
Witness
Notary Public
My commission expires:
-
(Notarial Seal)
...,
61996.1
28
-
.....
....
THE LESSEE:
(Seal)
Attest:
Clerk
As to the Lessee, signed and
sealed in the presence of:
Witness
Notary Public
My commission expires:
(Notarial Seal)
61996.1
" .
CITY OF SMYRNA
29
By:
Mayor