HomeMy WebLinkAboutOrdinance 2680 li:SnINGT0N COUNTY. ARK .
ORDINANCE NO . SCG �LCIRCUIIT C(LEF
N
J AN ORDINANCE AUTHORIZING A LEASE AND AGREEMENT BY
AND BETWEEN THE CITY OF FAYETTEVILLE , ARKANSAS , AS
LESSOR AND BALDWIN PIANO & ORGAN COMPANY , AN OHIO
CORPORATION , AS LESSEE , IN SUBSTANTIALLY THE FORM
AND WITH THE CONTENTS SET FORTH AND MADE A PART OF
THE ORDINANCE ; AUTHORIZING THE EXECUTION AND
DELIVERY OF THE LEASE AND AGREEMENT ; PRESCRIBING
OTHER MATTERS RELATING THERETO ; AND DECLARING AN
EMERGENCY .
BE IT ORDAINED by the Board of Directors of the City of
Fayetteville , Arkansas :
Section 1 . That there be , and there is hereby authorized
the execution and delivery of a Lease and Agreement ( the
" Lease Agreement " ) wherein the City of Fayetteville , Arkansas
( the " City " ) , is Lessor , and Baldwin Piano & Organ Company , an
Ohio corporation ( the " Company " ) , is Lessee , in substantially
the form and with substantially the contents hereinafter set
forth , and the Mayor and City Clerk be , and they are hereby ,
authorized to execute , acknowledge and deliver the Lease
Agreement for and on behalf of the City . The form and contents
of the Lease Agreement , which are hereby approved and which
are made a part hereof , shall be substantially as follows :
( Advice is hereby given that a copy of the Lease
Agreement is on file in the office of the City
Clerk of the City and is available for inspec -
tion by any interested person . )
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MICROFILMED
LEASE AND AGREEMENT
by and between
CITY OF FAYETTEVILLE , ARKANSAS
and
BALDWIN PIANO & ORGAN COMPANY
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Dated as of 1980
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This Lease and Agreement was Prepared by :
DAVIDSON , PLASTIRAS , HORNE ,
HOLLINGSWORTH & ARNOLD , Ltd ,
211 National Investors Life Building
Post Office Box 3363
Little Rock , Arkansas 72203
THIS AGREEMENT ALSO CONSTITUTES A SECURITY AGREEMENT
UNDER THE ARKANSAS UNIFORM COMMERCIAL CODE
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LEASE AND AGREEMENT
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
Section 101 Definitions 3
Section 102 Use of Words 6
ARTICLE II
CONSTRUCTING AND EQUIPPING OF PROJECT
Section 201 Constructing and Equipping of Project 7
Section 202 Insurance to be Maintained on Project
During Construction 8
Section 203 Itemization of Project Costs ; Issuance
of Additional Series ; Bond Proceeds to
be Deposited ; Effective Date and
Amendment of Indenture 8
Section 204 . Lessee to Have Peaceful and Quiet
Enjoyment 10
Section 205 Lessor Covenants to Enforce Contracts
and Correct Defective Work with
Expenses Incurred Constituting Part
of Project Costs 10
ARTICLE III
t DEMISING CLAUSES , DURATION OF LEASE TERM
AND RENTAL PROVISIONS
Section 301 Demise of Leased Premises 12
Section 302 Term of Lease Agreement 13
Section 303 Basic Rent ; Additional Rent ; Absolute
and Unconditional Obligation to Pay
Basic Rent and Additional Rent 13
Section 304 Method of Payment of Basic Rent and
Additional Rent 17
ARTICLE IV
TAXES AND ASSESSMENTS ( IMPOSITIONS )
Section 401 Taxes and Assessments ( Impositions ) 19
Section 402 Leased Premises Exempt from Ad Valorem
Taxes ; Contest of Attempted Levy
Authorized 19
ARTICLE V
INSURANCE
Section 501 Insurance Required 21
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ARTICLE VI
REPAIRS AND MAINTENANCE OF
PREMISES AND ALTERATIONS 4
Section 601 Lessee Obligated to Maintain Buildings 24
and Improvements
` Lessee Has Right to Make Additions , 24
Section 602
Alterations and Changes ,,.
Section 603 Structural Improvements and Alterations r
Become Property of Lessor ; Machinery ,
Equipment and Other Property Installed
at Lessee ' s Expense Remain Its Property 24
With Right of Removal
Section 604 Property on Leased Premises at Sole 25
Risk of Lessee
Section 605 Lessee Obligated to Maintain Project 25
Machinery and Equipment
ARTICLE VII
USE OF LEASED PREMISES
COMPLIANCE WITH ORDERS , ETC ,
Section 701 . .. Permitted Use of Leased
Premises and 26
Compliance With Laws ,
Section 702 Lessor ' s Covenant Not to Impose 26
Burdensome Laws , Etc .
ARTICLE VIII
WORK PERFORMED BY LESSEE
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Section 801 Obligations of Parties Concerning Work
on Leased Premises and Obtaining 27
Necessary Permits
ARTICLE IX
MECHANICS ' LIENS
Section 901 Lessee to Keep Leased Premises Free of 28
Construction Liens
ARTICLE X
INDEMNIFICATION OF LESSOR AND TRUSTEE
Section 1001 Indemnification of Lessor and Trustee
29
ARTICLE XI
LESSOR MAY PERFORM LESSEE ' S OBLIGATIONS
Section 1101 Lessee to Reimburse Lessee ' s
Lessor May Perform LessorforlCostsoand
30
Expenses Incurred in Doing So
ARTICLE XII
PUBLIC UTILITIES AND CHARGES
Section 1201 Lessee to Pay Public Utility Charges
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ARTICLE XIII
INSPECTION OF LEASED PREMISES
BY LESSOR AND TRUSTEE
Section 1301 Lessor and Trustee to Have Right of
Inspection Subject to Certain
Restrictions 32
ARTICLE XIV
DAMAGE AND DESTRUCTION
,Section 1401 Lessee to Restore in Event of Damage
or Destruction ; Application of
Insurance Moneys 33
Section 1402 No Diminution in Lessee ' s Obligation
to Pay Basic Rent and Perform
Other Covenants 135
Section 1403 Lessee not Obligated to Restore if
Purchase Option Exercised or All
Outstanding Bonds Paid 36
ARTICLE XV
CONDEMNATION
Section 1501 Rights of Parties in Event of Condemna-
tion ; Bonds Protected in Any Event 37
Section 1502 Lessee Obligated to Continue Basic
and Additional Rental Payments Until
Condemnation Award Available 39
Section 1503 Lessee ' s Right to Exercise Options
t Continues in Force Notwithstanding
Condemnation Proceedings 39
Section 1504 Right of Lessee to Participate in
Condemnation Proceedings 40
ARTICLE XVI
ASSIGNMENT
Section 1601 Assignment and Subletting Permitted but
Lessee Not Relieved of Obligations ;
Assignment to Trustee Permitted 41
ARTICLE XVII
PRIORITY OF LEASE
Section 1701 Lease and Agreement Superior and Prior 42
ARTICLE XVIII
REMEDIES ARE CUMULATIVE -
NO IMPLIED WAIVER
Section 1801 Specific Relief ; Remedies are Cumulative ;
No Implied Waiver 43
ARTICLE XIX
DEFAULT PROVISIONS
Section 1901 Events of Default 44
Section 1902 Remedies 45
Section 1903 Remedies Not Exclusive 45
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Section 1904 Rental , Damages and Reletting Handled
as Provided in Lease Agreement and
Indenture 46
Section 1905 Determination of Taxability 46
Section 1906 Lessor and Lessee Covenant not to take
any Action or Permit any Action Which
May Cause Interest on the Bonds to be
�. Subject to Federal Income Taxation 47
ARTICLE XX
OPTIONS AND SALE
Section 2001 Purchase Options 48
Section 2002 Purchase and Sale 50
Section 2003 Prepayment of Purchase Price and
Redemption of Bonds 50
ARTICLE XXI
NOTICES
Section 2101 Notices 52
ARTICLE XXII
RECORDING
Section 2201 Recording 53
ARTICLE XXIII
GENERAL
Section 2301 Arkansas Law Applicable 54
Section 2302 Severability 54
Section 2303 Captions for Reference Only 54
Section 2304 Trustee ' s Rights Cease When Bonds
and Trustee ' s Fees Paid or Provided for 55
Section 2305 Enforcement Rights of Trustee 55
Section 2306 Provisions Binding on Successors
and Assigns 55
Section 2307 Trustee ' s Consent Required for
Modification 55
Section 2308 Lessee Furnish Lessor , Trustee and
Underwriter Annual Reports 56
Section 2309 Consolidation , Merger or Sale Permitted
in Certain Circumstances 56
Section 2310 Lessor to Grant Sewer , Utility , Road
and Street Easements 57
Section 2311 Lessor and Lessee Covenant to Keep
Instruments Recorded 57
ARTICLE XXIV
EXPANSION OF FACILITIES
Section 2401 Expansion of Facilities 58
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Section 2402 Provisions Made in Trust Indenture for
Release of Lands Involved in Expansion
From Lien of Indenture ; Consideration
Paid for Lands Involved in Expansion 59
Section 2403 No Diminution of Lessee ' s Obligations
to Pay Basic and Additional Rent '
and Purchase Price 59
Section 24Q4 Lands That May be Included in Expansion 60
Section 2405 Rights Under Article XXIV Are In
Addition . to Other Rights and Options
Under Lease Agreement 60
ARTICLE XXV
REMOVAL AND DISPOSAL OF PROPERTY
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Section 2501 Lessee ' s Rights and Obligations Con -
cerning Removal and Disposal of
Building Service Equipment 61
Section 2502 Lessee ' s Rights and Obligations Con-
cerning Removal and Disposal of
Project Machinery and Equipment 62
Section 2503 Lessee to Report Upon Request
Dispositions or Removals Under
Section 2501 and 2502 69
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LEASE AND AGREEMENT .
This Leasehold Improvement Lease Agreement ( herein " Lease
and Agreement " or " Lease Agreement " ) made as of the day
of 1980 , by and between the CITY OF FAYETTEVILLE ,
ARKANSAS ( " Lessor " or " City " ) and Baldwin Piano & Organ
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Company , a corporation organized under and existing by virtue
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of the laws of the State of Ohio ( " Lessee " ) ;
WITNESSETH :
WHEREAS , Lessor is a duly organized and existing munici -
pality , a city of the first class , under the laws of the State
of Arkansas with full and lawful power and authority to enter j
into this Lease and Agreement , acting by and through its Board
of Directors ) in the public interest and for a public purpose
in securing and developing industry , providing employment and
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adding to the welfare and prosperity of the Lessor and its
inhabitants , all pursuant to the provisions of Act No . 9 of
the First Extraordinary Session of the Sixty- Second General
Assembly of the State of Arkansas , approved January 21 , 1960 ,
as amended ( " Act No . 9 " ) • and
WHEREAS , Lessee is authorized under its Articles of
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Incorporation and Bylaws and under the laws of the State of
its incorporation to enter into this Lease and Agreement and
to perform all covenants and obligations on its part to be
performed under and pursuant to this Lease and Agreement ; and
WHEREAS , Lessee is not prohibited under the terms of any
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outstanding trust indentures , deeds of trust , mortgages , loan
agreements or other instruments or evidences of indebtedness
of whatever nature from entering into this Lease and Agreement
and discharging and performing all covenants and obligations
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on its part to be performed under and pursuant to this Lease
and Agreement ( or if so , a proper waiver has been obtained )
and affirmatively so represents to Lessor ; and
WHEREAS , the industrial undertaking will consist of
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lands , buildings , machinery , equipment , improvements and
facilities ( the " Project " ) ; and
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WHEREAS , Lessor and Lessee hereby recite knowledge that
Lessor has undertaken to furnish interim and permanent finan-
cing of Project costs and expenses by authorizing the issuance
of a Bond Anticipation Note ( the " Note " ) and Industrial Develop,
ment Revenue Bonds ( the " Bonds " ) under Act . No . 9 ;
WHEREAS , the Note will be initially sold in the principal
amount of $ 1 , 200 , 000 ; and
WHEREAS , the Bonds will be sold and issued to retire the
Note within two years from the date of the Note , with there
to be ',initially sold and issued Bonds in the principal amount
of pot to exceed $ 1 , 200 , 000 ;
NOW , THEREFORE , for valuable consideration , receipt of
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which is hereby acknowledged by Lessor and Lessee , and in
consideration of the mutual benefits and covenants herein
contained , Lessor and Lessee AGREE as follows :
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- ARTICLE I
DEFINITIONS
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Section 101 - Definitions . Definitions . In addition to
the words and terms elsewhere defined in this Lease Agreement ,
the following words and terms as used in this Lease Agreement
shall have the following meanings unless the context clearly
indicates a different meaning or intent :
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" Act No . 9 " . - Act No . 9 of the First Extraordinary
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Session of the Sixty -Second General Assembly of the State of
Arkansas , approved January 21 , 1960 , as amended .
"Additional Bonds " - Bonds , in addition to the Series
1980 Bonds , which are issued under the provisions of Section
202 B of the Indenture .
" Additional Rent " - The rent provided for in Section
3 ,0 3 ( b, ) hereof .
" Authorized Lessee Representative " - The person at the
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time designated to act in behalf of the Lessee by written
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certificate furnished to the Lessor and the Trustee containing
the specimen signature of such person and signed on behalf of
the Lessee by the president or any vice president of the
Lessee . Such certificate may designate an alternate or alter-
nates .
" Authorized Lessor Representative " - The person at the
time designated to act in behalf of the Lessor by written
certificate furnished to the Lessee and the Trustee containing
the specimen signature of such person and signed on behalf of
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the Lessor by the Mayor . Such certificates may designate an
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alternate or alternates .
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" Basic Rent " - The rent provided for in Section 303 ( a )
hereof .
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" Bond Fund " Or " Fayetteville , Arkansas Industrial Development
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Revenue Bond Fund - Baldwin Piano & Organ Company Project " -
The fund created by Section 501 of the Indenture into which .
moneys are to be deposited and out of which disbursements are
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to be made for paying the principal of , premium , if any , and
interest on the Bonds in the manner and for the purposes
specified in Article V of the Indenture . j
" Bonds " - The City of Fayetteville , Arkansas Industrial
Development Revenue Bonds - Baldwin Piano & Organ Company
Project , issued under and secured by the Indenture and to be
delivered in series from time to time . In addition , for
purposes of this Lease Agrement the term Bonds shall include ,
unless otherwise expressly provided , the Note for the interim
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period during which the same shall be outstanding pending
issuance of the Series 1980 Bonds .
"Code " - The Internal Revenue Code of 1954 , as amended .
" Construction Fund " or " Industrial Development Revenue
Bond Construction Fund - Baldwin Piano & Organ Company Project "
The fund created by Section 601 of the Indenture into which
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the portion of the proceeds of the sale of the Note specified
in Section 601 is to be deposited and out of which disburse -
ments are to be made for Project costs in the manner and for
the purposes specified in Article VI of the Indenture .
" Excess Bond Fund Moneys " - Moneys in the Bond Fund at
any time , from any source , in excess of the amounts required
for payment of interest , premiums , if any , and principal that
will mature prior to the next Basic Rent payment date ( set
forth in Section 303 ( a ) ( 1 ) ) and interest , premium , if any , and I
principal of Bonds that have matured but have not been pre -
sented for payment .
" Indenture " or " Trust Indenture " - The Trust Indenture
between the City and the Trustee , of even date herewith , which
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is recorded in the officeof the Circuit• Clerk and Ex-Officio
Recorder of Washington County , Arkansas and which sets forth
the details pertaining to the Bonds , the provisions pertaining
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to the issuance of additional bonds , the nature and extent of
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the security and the rights , duties and obligations of the
City , the Ttustee and the holders and registered owners of the
Bonds and terms under which the Bonds are secured .
" Lease Agreement " - The within Lease and Agreement
between the City as Lessor and the Lessee .
" Lease term " or " term " - The initial term of the Lease
Agreement set forth in Section 302 .
" Leased Premises " - The lands , buildings , improvements ,
machinery , equipment and facilities covered by the Lease
Agreement and defined in Section 301 hereof .
" Lessee " or " Company " - Baldwin Piano & Organ Company , an
Ohio corporation , and any assignee that assumes the obliga-
tions of the Lessee pursuant to the provisions of this Lease
Agreement .
" Lessor " - The City of Fayetteville , Arkansas , a city of
the first class and located in Washington County , Arkansas .
" Note " - The City of Fayetteville , Arkansas Bond Antici -
pation Note issued under and secured by the Indenture .
" Permitted Encumbrances " - - ( i ) This Lease Agreement and
the Trust Indenture , ( ii ) utility , access and other easements
and rights of way , restrictions , reversions and exceptions
that the Lessee certifies will not interfere with or impair
the operations being conducted in the Project , ( iii ) such
minor defects , irregularities , encumbrances , easements , rights
of way and clouds on title as normally exist with respect to
properties similar in character to the Project , and as do not
materially impair the property affected thereby for the pur-
pose for which it was acquired or held by the City , and ( iv ) an
outstanding first mortgage and assignment of interest securing
indebtedness in the original amount of $ 1 , 465 , 000 dated December
22 , 1975 .
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