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HomeMy WebLinkAbout72-80 Ordinance r----' - '''~....- . . CJ. . October 20, 1980 ORDINANCE NO. 7 L-fb / The Village Council of the Village of Dublin, I Ohio, met in regular session on this date with the following . members present: lJ~'llnrt/ r:hl/m6eJ4s C6orlf!.s /J1q /1d e qfAer,Y} ft,dd/p~ lJZ:ri~r 8Q/'1wvr )f1ll~/'erJ . /hi- e Il/dfor /</Jy)fYlr/ (;e~sp Jo~,,~ /J/'Ob/d/J t /oq;1!5 Leb~/~ Mr. 5J.a(uon offered the following ordinance and moved the adoption of the same, which was duly seconded by Mr. L e IJ J i ~ . ORDINANCE I AN ORDINANCE AUTHORIZING THE ISSUANCE OF A $470,000 INDUSTRIAL DEVELOPMENT FIRST MORTGAGE REVENUE BOND (AVERY LAKE INVESTMENTS PROJECT) OF TaE VILLAGE OF DUBLIN, OHIO, IN ORDER TO ASSIST AVERY LAKE INVESTMENTS IN THE FINANCING OF COSTS OF ACQUIRING, CON- STRUCTING, IMPROVING, FURNISHING AND EQUIPPING A COMMERCIAL FACILITY TO BE LEASED TO DODGE-IRELAN, INC. AND DUBLIN BUILDING SYSTEMS CO.; PROVIDING FOR THE PLEDGE OF REVENUES FOR ~HE PAYMENT OF SAID BOND; AUTHORIZING A LOAN AGREEMENT WITH RESPECT TO THE PROCEEDS DERIVED FROM THE SALE OF SAID BONO; AUTHORIZING ASSIGNMENTS OF SAID VILLAGE.SINTEREST IN SAID LOAN AGREEMENT AND THE NOTE FROM AVERY LAKE INVESTMENTS MADE AND DELIVERED PURSUANT TO SAID LOAN AGREEMENT; AUTHORIZING A BONO PURCHASE AGREE- MENT; AND DECLARING AN EMERGENCY. WHEREAS, the Village of Dublin, Ohio (hereinafter called the "Issuer"), a municipal corporation in and pf the State of Ohio, is by virtue of the laws of said State, I ~....... . . ~ . . including Section 13 of Article VIII of the Ohio Constitution and Chapter 165 of the Ohio Revised Code, and other authorities mentioned therein, authorized and. empowered, among other I things, (a) to issue revenue bonds in order to assist in the financing of costs of industrial, commercial, distribution and research facilities located within the boundaries of the Issuer, (b) to enter into an agreement with the owner of such facilities providing for revenues, as defined in Section 165.01(I) of the Ohio Revised Code, sufficient to pay the principal of and interest and any premium on such revenue bonds, (c) to secure such revenue bonds by a pledge and assignment of such revenues, as provided for herein, and (d) to enact this Bond Legislation and enter into the Agreement and Bond Purchase Agreement (as hereinafter defined) upon the terms and conditions provided therein; and WHEREAS, Avery Lake Investments will be the owner of the Project (as hereinafter defined), comprising a new commercial office building located within the boundaries of the Issuer, and Avery Lake Investments will lease said building to Dodge-Irelan, Inc. and Dublin Building Systems Co., both Ohio corporations, for use as corporate offices and for related purposes; and WHEREAS, it is hereby determined by this Legislative Authority that the acquisition, construction, improvement, furnishing and equipping of the Project, including the I financing thereof, will require the issuance, sale and delivery of the Project Bond (as hereinafter defined) in the original principal amount of $470,000; NOW, THEREFORE, BE IT ORDAINED by the Village Council of the Village of Dublin, Ohio: Section l. Definitions. In addition to the words and terms elsewhere defined in this Bond Legislation or in the Agreement and used herein as defined words and terms, the following words and terms as used in this Bond Legislation shall have the following meanings, unless the context or use clearly indicates another or different meaning or intent: "Act It means Chapter 165 of the Ohio Revised Code, enacted and amended pursuant to Section 13 of Article VIII and other provisions of the Ohio Constitution. "Agreement II means the Loan Agreement provided for in Section 9 hereof between the Issuer and the Company, dated as of October l, 1980. "Bond Fund" means the "Village of Dublin, Ohio - Avery Lake Investments Revenue Bond Account" created by I Section 6 hereof. -2- '"..'.,". . . "Bond Fund Holderl' means, as of any point in time, BANK ONE OF COLUMBUS, N.A., Columbus, Ohio, or its successors so designated by the Issuer as the depository at which the , Construction Fund and Bond Fund are established. IIBond Legislationl' means this ordinance, as the same may from time to time be modified, amended or supple- mented. "Bond Purchase Agreement II means the Bond Purchase Agreement provided for in Section 9 hereof among the Issuer, the Company and the Mortgagee, dated as of October 1, 1980. "Bond Service Charges" means, for any time period, the principal, interest 'and redemption premium, if any, required to be paid by the Issuer on the Project Bond for such time period. . "Clerkl' means the Clerk of the Legislative Authority. "Company" means Avery Lake Investments, an Ohio general partnership, and its successors and assigns. "Construction Fund" means the "Village of Dublin, Ohio - Avery Lake Investments Construction Account" created by Section 5 hereof. I "Date of Taxability" means the date as of which all or any part of the interest on the Project Bond is first required to be included for Federal income tax purposes in -' the gross income of the Mortgagee by reason of the occurrence of any circumstances on the basis of which a Determination of Taxability shall have been made. "Determination of Taxabili tyll means the receipt by the ~10rtgagee ofa ruling or technical advice by the Internal Revenue Service in which the Company has participated, or a written opinion by an attorney or firm of attorneys of recognized standing on the subject of municipal bonds selected by the Mortgagee and approved by the Company (which approval shall not be unreasonably withheld), to the effect that all or any part of the interest on the Project Bond is includable for Federal income tax purposes in the gross income of the Mortgagee (other than because the Mortgagee is al'substantial user" or a Ilrelated person" thereto, as those terms are used in Section lO3(b)(9) of .the Internal Revenue Code) . "Eligible lnvestments" means (i) obligations issued or guaranteed by the United States or by any person I -3- <N._.'~'. ""._ I controlled or supervised by and acting as an instrumentality of the United States pursuant to the authority granted by Congress; (ii) obligations issued or guaranteed by any state ,_ or political subdivision thereof rated A or higher by Moody's Investors Service, Inc. or by Standard & Poor's Corporation, both of New York, New York, or their successors; (iii) commercial or finance paper which is rated either P-l or A-lor an equivalent by Moody's Investors Service, Inc. or Standard & Poor's Corporation, both of New York, New York, or their successors; (iv) bankers' acceptances drawn on and accepted by commercial banks, including those of the Mortgagee; (v) certificates of deposit of banks or trust companies, including the Mortgagee, organized under the laws of the United States of America or any state thereof, which must have a reported capital and surplus of at least $25,000,000 in dollars of the United States of America; and (vi) repur- chase agreements fully secured by obligations of the type specified in (i) above, including repurchase agreements of the Mortgagee or any commercial bank affiliated with the Mortgagee; provided that any such investment or deposit is not prohibited by law. l'Executive Officerl' means the Village Manager of the Issuer. "Fiscal Officerl' means the Director of Finance of the Issuer. I "Guarantors" means, collectively, Dodge-Irelan, . Inc. and Dublin Building Systems Co., both Ohio corporations, and Robert M. Dodge, Pamela G. Dodge, Victor D. Irelan, Julia S. Irelan, Ralph A. Hewitt and. Elizabeth L. Hewitt, and their respective heirs, personal representatives, successors and assigns under.. the Guaranty Agreement. "Guaranty Agreement" means the Unconditional Guaranty Agreement dated as of October l, 1980, made by the Guarantors and accepted by the Mortgagee. "Internal Revenue Code" means the Internal Revenue Code of 1954, as amended, and the existing and proposed Regulations promulgated thereunder. ilLegal Officer" means the Director of Law of the Issuer. IILegislative Authority" means the Village Council of the Issuer. IILoan" means the loan by the Issuer to the Company of the proceeds from the sale of the Project Bond to the I Mortgagee. -4- I "Loan Payments" means the amounts required to be paid by the provisions of Section 2.1 of the Agreement in repayment of the Loan. , IIMortgage" means the Open-End Mortgage and Security Agreement granted by the Company to the Mortgagee, dated October 2, 1980. "Mortgagee" means, as of any point in time, BANK ONE OF COLUMBUS, N.A., Columbus, Ohio, or its successor or assign, as the then-registered holder of the Project Bond. "Note" means the Promissory Note, dated as of October l, 1980, executed by the Company and delivered to and payable to the order of the Issuer, constituting an unconditional promise of the Company to repay the Loan to the Issuer, which Note is to be initially executed and delivered in substantially the form attached as Exhibit A to the Agreement. "Person", whether or not appearing with initial capitalization, means natural persons, firms, associations, corporations, partnerships, other business entities and public bodies. "Plans and Specifications" means the plans and specifications for the Project on file with the Issuer, as the same may be revised from time to time in accordance with I the Agreement. . "Pledged Receipts" means fa) the Loan Payments, including the payments of principal of and interest and any premium on the Note, (b) all other moneys received by the Issuer or the Mortgagee for the account of the Issuer pursuant to the Agreement or otherwise with respect to the Loan, (c) the proceeds of the Project Bond, including any moneys deposited in the Construction Fund, (d) any moneys deposited in the Bond Fund, and (e) any moneys constituting income and profit from the investment of the moneys deposited in the Bond Fund and the Construction Fund. II Project" means the real, personal or real and personal property consisting of a new commercial office building as more fully described in Exhibit Battached to the Agreement, acquired, constructed, improved, furnished and equipped pursuant to the Plans and Specifications, but not including the Project Premises, and as may result from a revision of the Plans and Specifications in accordance with the Agreement. "Project Bond" means the Bond authorized in t Section 3 hereof and designated 'Industrial Development / -5- _.."~.._. I . First Mortgage Revenue Bond (Avery Lake Investments Project)", issued by the Issuer pursuant to this Bond Legislation in the original principal amount of $470,000, dated as of I October l, 1980, and any replacement thereof issued in accordance with the Bond Legislation. "Project Premises II means the real property described in Exhibit C attached to the Agreement. "Project Purposes" means the purpo'ses of a commercial facility, being specifically a new commercial office building, as described in the Act. "State" means the State of Ohio. IITermination Date" means March I, 200l, subject to earlier termination as provided in the Agreement or herein. Any reference herein to the Issuer, to the Legis- lative Authority, or to any officers thereof, shall include any entity which succeeds to its duties or responsibilities pursuant to or by operation of law. Any reference herein to a section or provision of the Ohio Constitution, the Act or the Internal Revenue Code or to a section, provision or chapter of the Ohio Revised Code shall include such section or provision or chapter as from time to time amended, modified, revised, supplemented, or superseded; provided, however, I that no such change in the Constitution, laws or regulations (a) shall alter the obligation to pay the Bond Service Charges in the amounts and manner, at the times, and from the sources provided in the Bond Legislation, except as otherwise herein permitted, or (b) shall be deemed applicable by reason of this provision if such change would in any way constitute an impairment of the rights of the Issuer, the Company or the Mortgagee under the Agreement. References herein to any document or documents are and shall be references to such document or documents as the same may from time to time be duly modified, amended, supple- mented, renewed or extended in accordance with the terms thereof. Unless the context shall otherwise indicate, words of the masculine gender shall be deemed and construed to include correlative words of the feminine and neuter genders, words importing the singular number shall include the plural number, and vice versa, and the terms "hereof", "hereby II , "hereto", Ilhereunder", and similar terms , mean this Bond Legislation. t --6.,.. ^","' I section 2. Determinations of the Legislative Authority. The Le9islat~ve Author~ty hereby determ~nes: , (a) that the real, personal or real and personal property to be acquired, constructed, improved, furnished and equipped by the Company by purchase, construction and installation through the Loan is now and after construction and improvement will be useful to the Project, and the utilization of such property in the creation and location of the Project is economically sound; and (b) the Project is a "project" as the term is defined in Section 165.01 of the Ohio Revised Code, is consistent with the purposes of Section 13 of Article VIII of the Ohio Constitution and the Act and will benefit the people of the Issuer by creating jobs and employment opportunities and promoting the commercial and economic development of the Issuer and the State. Section 3. Authorization and Terms of Project Bond. It is hereby determined to be necessary to, and the ISSUer shall, issue, sell and deliver, as provided and authorized herein and pursuant to the authority of the Act, I the Project Bond in the original principal amount of Four Hundred Seventy Thousand Dollars ($470,000) for the purpose of making a loan to assist the Company in the financing of costs of acquiring, constructing, improving, furnishing and equipping the Project to be owned by the Company and leased to DOdge-Irelan, Inc. and Dublin Building Systems Co. for the Project Purposes, including but not limited to costs incidental thereto and to the financing thereof. The Project Bond shall be designated "Industrial Development First Mortgage Revenue Bond (Avery Lake Investments Project)" and shall be issued in fully registered form. The Project Bond shall be originally issued in fully registered form in the name of BANI< ONE OF COLUMBUS, N.A., shall be numbered R-l and shall be in substantially the form of Exhibit A attached hereto, made a part hereof and incorporated herein by reference. The Project Bond shall mature not later than the Termination Date, and shall otherwise be upon and subject to the terms for interest, increased. interest, additional interest, payment, place of payment and mandatory and optional redemption set forth in said Exhibit A. The Project Bond shall be assignable only to financial institutions as defined by Section 1726.01 of the Ohio Revised Code and shall be a negotiable instrument I as provided in Section 165.03 of the Ohio Revised Code. ;)~ -7- "."~ I Bond Service Charges on the Project Bond shall be payable in lawful money of the United States of America by check or draft mailed or delivered to the Mortgagee at its , principal office by the Bond Fund Holder, without deduction for services of any paying agent, and without presentation of the Project Bond by the Mortgagee to the Bond Fund Holder, except a payment or prepayment of principal which will discharge all indebtedness of the Issuer evidenced by the Project Bond. The Project Bond shall be executed by the Executive Officer and by the Fiscal Officer and shall bear the seal of the Issuer. In case any officer whose signature shall appear on the Project Bond shall cease to be such officer before the issuance or delivery of the Project Bond, such signature shall nevertheless be valid and sufficient for all purposes, the same as if he had remained in office until that time. The Project Bond shall express on its face the purpose for which it is issued and such other statements or legends as may be required by law. 50 long as the Project Bond remains outstanding, the Issuer will cause to be maintained and kept, by and at the office of the Fiscal Officer, books for the registration and transfer of the project Bond. The Project Bond may be transferred only upon the I books kept for the registration and transfer of the Project Bond, upon surrender thereof at the office of the Fiscal Officer together with an assignment duly executed by the then-registered holder thereof, or its duly authorized attorney, in such form as shall be satisfactory to the Fiscal Officer. Upon the transfer of the Project Bond and upon request of the Fiscal Officer, the Issuer shall execute in the name of the transferee a new fully registered Project Bond in a principal amount equal to the principal balance of the Project Bond so transferred on the date of such transfer. Such new Project Bond shall be dated as of the date to which interest on the Project Bond so transferred shall have been paid on the date of such transfer and shall bear interest at the same rate and mature on the same date and otherwise be upon the same terms as the Project Bond so transferred, such execution on behalf of the Issuer to be by the Executive Officer and by the Fiscal Officer and to bear the seal of the Issuer. The Issuer and the Fiscal Officer may make a charge for every such transfer of the Project Bond sufficient to reimburse them for any tax, fee or other governmental charge required to be paid with respect to such transfer and to reimburse them for all other costs and expenses incurred by them in connection with such transfer, and such charge or charges shall be paid before any such new Project Bond shall I be delivered. .- -8- , In the event the Project Bond is mutilated, lost, wrongfully taken or destroyed, the Issuer shall execute in the name of the then-registered holder of such mutilated, , lost, wrongfully taken or destroyed Project Bond a new fully registered Project Bond of like date and upon like terms as that mutilated, lost, wrongfully taken or destroyed, such execution on behalf of the Issuer to be by the Executive Officer and by the Fiscal Officer and bear the seal of the Issuer; provided that, in the case of any mutilated Project Bond, such mutilated Project Bond shall first be surrendered to the Fiscal Officer, and in the case of any lost, wrong- fully taken or destroyed project Bond, there shall first be furnished to the Fiscal Officer and to the Company evidence of such loss, wrongful taking or destruction satisfactory to the Fiscal Officer and the Authorized Company Representative (as defined in the Agreement), together with indemnity satisfactory to them. The Fiscal Officer and the Issuer may charge the then-registered holder of such mutilated, lost, . wrongfully taken or destroyed Project Bond with their reasonable fees and expenses in connection with their action taken pursuant to this paragraph. Each new Project Bond issued pursuant to this Section 3 shall, subject to the conditions thereof, con- stitute a contractual obligation of the Issuer in substi- tution for all previously issued Project Bonds and shall be entitled to all of the benefits, and subject to all of the I conditions, of the Bond Legislation, the Agreement and all documents given as security for the payment, or otherwise in connection with the issuance, of the Project Bond. . Section 4. Security Pledged for Project Bond . As provided herein, the Project Bond shall be payable by the Issuer solely from the Pledged Receipts and shall be secured by a pledge of and lien on moneys deposited in the Construction Fund and Bond Fund and a pledge and assignment of other moneys constituting Pledged Receipts, and further secured by the pledge and assignment of the Note and the pledge and assignment of the Agreement, and further secured by the Mortgage and a Conditional Assignment of Leases, Rents and Profits of and derived from the Project, granted by the Company to the Mortgagee. Anything in the Bond Legislation, the Project Bond or the Agreement to the contrary notwith- I. standing, neither the Bond Legislation, nor the Project Bond, nor .the Agreement shall constitute a debt or a pledge of the faith and credit of the Issuer or of the State or any political subdivision thereof, and the Mortgagee shall not have the right to have taxes levied by the General Assembly of the State or the taxing authority of the Issuer or.of any other political $ubdivisionof the State for the payment of the principal of, premium, if any, on or interest on the I Project Bond, but the Project Bond is payable by the Issuer ","'.. . :;;,..........-. -9- . solely fram the Pledged Receipts, and the Project Bond shall contain on the face thereof a statement to that effect; provided, however, that nothing herein shall be deemed to , prohibit the Issuer, of its own volition, from using to the extent it is lawfully authorized to do so, any other resources or revenues for the fulfillment of any of the terms, conditions or obligations of the Agreement, the Bond Legislation or the Project Bond. Section 5. Sale of Project Bond; Allocation of Purchase. Price. The Executive Officer and the Fiscal Officer are hereby authorized and directed to offer for sale the Project Bond to the Mortgagee at a purchase price of $470,000 in accordance with the terms and provisions of this Bond Legislation and the Bond Purchase Agreement, and to make the necessary arrangements on behalf of the Issuer with the Mortgagee to establish the date, location, procedure and conditions for the delivery of the Project Bond to the Mortgagee. The Executive Officer and the Fiscal Officer further are hereby authorized and directed to take all steps necessary to effect due delivery of and security for the Project Bond under the terms of this Bond Legislation .and the Bond Purchase Agreement, and it is hereby determined that the aforesaid purchase price and the interest rate for the Project Bond and the manner of sale, as provided in this Bond LegiSlation, are in the best interest of the Issuer and consistent with all legal requirements. The Clerk shall I furnish to the Mortgagee true transcripts of proceedings had with reference to the issuance of the Project Bond, certified by the Clerk, along with such information from the Clerk's records as is necessary to determine the regularity and validity of the issuance of the Project Bond. There is hereby created by the Issuer and ordered maintained, as a separate deposit account (except when invested as hereinafter provided) in the custody of Bond Fund Holder, the Construction Fund which shall be designated "Village of Dublin, Ohio - Avery Lake Investments Construction Account". The proceeds of the Project Bond shall be deposited in the Construction Fund for disbursement as the Loan to the . Company provided for in the Agreement. Moneys in the Construction Fund shall be disbursed by Bond Fund Holder on written order signed by the Company in accordance with the provisions of the Agreement and as otherwise provided in the Agreement and the Note, and Bond Fund Holder is hereby authorized and directed to issue its check for each disbursement required by the provisions of the Agreement and to make such transfers from the Construction Fund to the Bond Fund as are provided for in the Agreement. The Issuer covenants and agrees to take promptly whatever action, if any, is necessary in approving and ordering all such disbursements. I -lO- The moneys to the credit of the Construction Fund, pending application thereof as above set forth, shall be subject to a lien and charge in favor of Mortgagee, but only , to the extent of its interest therein. Section 6. Source of Payment - Bond Fund. There is hereby created by Issuer and ordered maintained, as a separate deposit account (except when invested as herein- after provided) in the custody of Bond Fund Holder, the Bond Fund which shall be designated IIVillage of Dublin, Ohio - Avery Lake Investments Revenue Bond Accountll. The Bond Fund (and accounts, if any, therein provided for in the Agreement) and the moneys and investments therein are hereby pledged to and shall be used solely and exclusively for the payment of Bond Service Charges as they fall due at stated maturity, by acceleration or by redemption, all as provided herein and in the Project Bond and the Agreement, provided that no part thereof shall be used to redeem the Project Bond prior to maturity, unless the Company should so direct. The moneys to the credit of the Bond Fund, pending application thereof as set forth below, shall be subject to the lien, charge and security interest in favor of the Mortgagee. As provided in the Agreement, Loan Payments sufficient in time and amount to pay the Bond Service Charges as they come due are to.be paid by Company directly to Bond Fund Holder for the account of Issuer and deposited I in the Bond Fund. Under the provisions of the Agreement, payments with respect to the Note received by Bond Fund Holder shall be deposited into the Bond Fund for the account of Issuer and shall constitute Loan Payments. During each calendar month, the Mortgagee shall have the right to be paid, and to withdraw, from the Bond Fund any amount or amounts then due and payable upon the Project Bond, and Bond Fund Holder is hereby authorized and directed to issue its check or draft for each of the payments to be made from the Bond Fund; provided, however, that no such withdrawal of any payment of Bond Service Charges shall be made by the Bond Fund Holder prior to the date each Bond Service Charge is to be paid in accordance with the terms of the Project Bond. Issuer, by the Executive Officer, shall take all such actions and sign and deliver all such documents as Bond Fund Holder may from time to time require to provide the appropriate authorization for Bond Fund Holder to make the transfers and payments which it is authorized to make pursuant to this Bond Legislation. There shall be deposited into the Bond Fund (and credited, if required by the Agreement, to appropriate accounts therein), as and when received, (a) all Loan pay- ~I '- -. ---' -ll- ments and (b) all other Pledged Receipts, except those amounts required by the Agreement to be deposited in the Construction Fund or any other separate insurance or condem- , nation proceeds account. The Issuer hereby covenants and agrees that so long as the Project Bond is outstanding the Issuer will deposit or cause to be deposited in the Bond Fund Pledged Receipts sufficient in time and amount to pay the Bond Service Charges as the same become due and payable, and to this end the Issuer covenants and agrees that, so long as the Project Bond is outstanding, the Issuer will diligently and promptly proceed in good faith and use its best efforts to enforce the Agreement, and that, should there be an Event of Default (as defined in the Agreement), the Issuer shall fully cooperate with the Mortgagee to protect fully the rights and security hereunder of the Mortgagee. Nothing herein shall be construed as requiring the Issuer to use or apply to the payment of Bond Service Charges any funds or revenues from any source other than Pledged Receipts. Section 7. Covenants of Issuer. In addition to other covenants of the Issuer in this Bond Legislation contained, the Issuer further covenants and agrees as.follows: (a) Payment of Bond Service Charges. The Issuer will, solely from Pledged Receipts, payor cause to be paid the Bond Service Charges on the dates, at the places and in I the manner provided herein, in the Project Bond and in the Agreement. (b) Performance of Covenants, Authority and Actions. The Issuer will at all times faithfully observe and perform all agreements, covenants, undertakings, stipu- lations and provisions contained in the Bond Legislation, in the Agreement, the Bond Purchase Agreement, in the conditional assignments of the Note and of the Agreement and in the Project Bond executed and delivered hereunder and in all proceedings of the Issuer pertaining to the Project Bond, the Bond Purchase Agreement, the Agreement or the conditional assignments of the Note and of the Agreement. The Issuer warrants and covenants that it is, and upon delivery of the Project Bond will be, duly authorized by the Constitution and laws of the State, including particularly and without limitation the Act, to issue the Project Bond and to execute the Bond Purchase Agreement, the Agreement and the conditional assignments of the Note and of the Agreement, to provide the security for payment of the Bond Service Charges in the manner and to the extent herein and in the Bond Purchase Agreement set forth1 and that all actions on the Issuer's part for the issuance of the Project Bond and execution and , delivery of the Bond Purchase .Agreement, the Agreenent, the -l2- Project Bond and conditional assignments of the Note and of the Agreement have been or will be duly and effectively taken; and that the Project Bond in the hands of the Mort- I gagee will be a valid and enforceable special obligation of Issuer according to the terms thereof. Each provision of the Bond Legislation, Bond Purchase Agreement, Agreement, Project Bond and the conditional assignments of the Note and of the Agreement is binding upon each such officer of the Issuer as may from time to time have the authority under law to take such actions as may be necessary to perform all or any part of the duties required by such provision; and. each duty of the Issuer and of its officers undertaken pursuant to such proceedings for the Project Bond is established as a duty of the Issuer and of each such officer having authority to perform such duty, specifically enjoined by law and resulting from an office, trust, or station within the meaning of Section 2731.01 of the Ohio Revised Code, pro- viding for enforcement by writ of mandamus. (c) Pledged Receipts. Except as otherwise provided in the Bond LegiSlation, Bond Purchase Agreement, Agreement, Project Bond and conditional assignments of the Note and of the Agreement, the Issuer will not create or suffer to be created any debt, lien or charge thereon, or make any pledge or assignment of or create any lien or encumbrance upon the Pledged Receipts, including the moneys in the Bond Fund and Construction Fund, other than the , pledge and assignment thereof under the Bond Legislation, Bond Purchase Agreement, Agreement and conditional assign- ments of the Note and of the Agreement. (d) Recordings and Filings. The Issuer, at the expense of the Company, will cause (to the extent required by the laws of the State to perfect such instruments and/or the liens created thereby) all necessary financing statements, amendments thereto, continuation statements and instruments of similar character relating to the pledges and assignments made by it to secure the Project Bond, to be recorded and filed in such manner and in such places and to the extent required by law in order to fully preserve and protect the security of the Mortgagee. (e) Inspection of Project Books. All books and documents in the Issuer's possession relating to the Project or the Pledged Receipts shall at all times be open to inspec- tion by such accountants or other agents of the Mortgagee as the Mortgagee may from time to time designate. (f) Rights under Agreement. The Mortgagee, in its name or in the name of the. Issuer, may, for and on behalf of Issuer and itself, enforce all rights of the ,I -l3- Issuer and all obligations of the Company under and pursuant to the Agreement, Note, Bond Purchase Agreement and all other instruments given by the Issuer and the Company to I secure payment of the Project Bond whether or not the Issuer is in default of the pursuit or enforcement of such rights and obligations. (g) Maintenance of Agreement. The Issuer shall do all things and take all actions on its part necessary to comply with the obligations, duties and responsibilities on the part of the Issuer under the Agreement, and will take all actions within its authority to maintain the Agreement in effect in accordance with the terms thereof and to enforce and protect the rights of the Issuer thereunder, including actions at law and in equity, as may be appropriate. (h) Arbitrage Provisions. The Issuer will restrict the use of the proceeds of the Project Bond in such manner and to such extent, if any, as may be necessary, after taking into account reasonable expectations at the time the Project Bond is delivered to the Mortgagee, so that it will not constitute an arbitrage bond under Section I03(c) of the Internal Revenue Code. The Executive Officer, or any other officer having responsibility with respect to the issuance of the Project Bond, is authorized and directed, alone or in conjunction with any of the foregoing or with any other officer, employee, consultant or agent of the Legislative I Authority, or the Company, and upon receipt of satisfactory indemnities, to give an appropriate certificate of the Issuer, for inclusion in the transcript of proceedings for the Project Bond, setting forth the reasonable expectations .-----. of the Issuer regarding the amount and use of all such proceeds and the facts and estimates on which they are based, such certificate to be premised on the reasonable expectations and the facts and estimates on which they are based as provided by the Company, all as of the date of delivery of and payment for the Project Bond. Section 8. Investment of Bond Fund and Construction Fund. Moneys in the Bond Fund and the Construction Fund SEaTI be invested and reinvested by Bond Fund Holder in any Eligible Investments, in accordance with and subject to any orders of the Authorized Company Representative with respect thereto, which orders may be initially oral or written, but if oral, shall be promptly confirmed in writing, provided that investment of moneys in the Bond Fund shall mature or be redeemable at the option of the Bond Fund Holder at the times and in the amounts necessary to provide moneys to pay Bond Service Charges as they fall due at stated maturity or by redemption, and that each investment of monies in the Construction Fund shall in any event mature or be redeemable I at the option of the Bond Fund Holder at such time as may be "'.--'/ -14- necessary to make timely disbursements from the Construction Fund. Subject to any such orders with respect thereto, the Bond Fund Holder may from time to time sell such investments 1 and reinvest the proceeds there form in Eligible Investments maturing or redeemable as aforesaid. Any such investments may be purchased from the. Bond Fund Holder and the Mortgagee. The Bond Fund Holder shall sell or redeem investments standing to the credit of the Bond Fund to produce sufficient moneys hereunder at the times required for the purpose of paying Bond Service Charges when due as aforesaid, and shall do so without necessity for any order on behalf of the Issuer and without restriction by reason of any such order. An invest- ment made from moneys credited to the Bond Fund or the Construction Fund shall constitute part of that respective Fund and such respective Fund shall be credited with all proceeds of sale and income from such investment, and any loss resulting from such investment shall be charged to the respective Fund. For purposes of this Bond Legislation, such instruments shall be valued at face amount or market value, whichever is less. Section 9. Bond Purchase Agreement, Agreement and Conditional Assignments. In order to better secure the payment of the Bond Service Charges as the same shall become due and payable, the Executive Officer is hereby authorized and directed to execute and deliver the Bond Purchase Agree- ment, the Agreement and the conditional assignments of the I Note and of the Agreement in substantially the forms sub- mitted to the Issuer, which instruments are hereby approved, with such changes therein not inconsistent with this Bond Legislation and not substantially adverse to the Issuer as - may be permitted by the Act and approved by the officer executing the same. The approval of such changes by said officer, and the fact that such are not substantially ad- verse to the Issuer, shall be conclusively evidenced by the execution of the Bond Purchase Agreement, the Agreement and the conditional assignments of the Note and of the Agreement by such officer. Such officer is further authorized and directed to endorse and deliver the Note to the Mortgagee; provided, however, that such endorsement shall (a) be made only in connection with the transfer to the Mortgagee of the security interest in the Note granted under the aforesaid conditional assignment of the Note, (b) be subject to the conditions of said conditional assignment and (c) ,give to the Mortgagee no right, except as provided in said condi- tional assignment, to receive payments to be made upon the Note. Section lO. Other Documents. The Executive Officer is hereby further authorized. and directed to execute financing statements, other assignments and.any other in- t struments as are, in the opinion of Legal Officer and bond - -15- counsel to Issuer, necessary to perfect the pledges set forth herein and to consummate the transactions provided for in the Bond Purchase Agreement and Agreement. I section ll. Compliance with Section 121.22, Ohio Revised Code. It is hereby found and determined that all formal actions of the Legislative Authority concerning and relating to the passage of this Bond Legislation were taken in an open meeting of the Legislative Authority, and that all deliberations of the Legislative Authority and of any of its committees, if any, that resulted in such formal action, were taken in meetings open to 'the public, in full compliance with applicable legal requirements, including Section 121.22 of the Ohio Revised Code. Section 12. Prevailing Rates of Wages. All laborers and mechanics employed on the Project shall be paid at the prevailing rates of wages of laborers and mechanics for the class of work called for by the Project, which wages shall be determined in accordance with- the requirements of Chapter 4115 of the Ohio Revised Code, for determination of prevailing wages, provided that should the Company or other non-public user beneficiary of the Project undertake, as part of the Project, construction to be performed by its regular collective bargaining unit employees who are covered under a collective bargaining agreement which was in existence prior to the date of the commitment instrument undertaking I to issue the Project Bond, then, in that event, the rate of pay provided under the collective bargaining agreement may be paid to such employees. -- Section l3. Emergency--Effective Date. This Bond Legislation is hereby declared to be an emergency measure, the immediate passage of which is necessary for the preser- vation of the public peace, health and safety and for the further reason this Bond Legislation must be immediately effective in order to eliminate the hazards and expenses to the Issuer and its people resulting in the lack of job opportunities; wherefore, this Bond Legislation shall take effect and be in force immediately upon its passage. t -16- The foregoing motion having been put to a vote, the resolution of the roll call was as follows: I Passed this 20th day of October, 1980. I... t:iL;.~~- . Mayor - / -:......, . ATTEST: I, Dorothy Semons, Clerk of the Village Council of the Village of Dublin, Ohio, do hereby certify that the foregoing is a true and correct copy of the original ordinance as passed ~y the Village Council of the Village of Dublin, Ohio, on October 20, 1980. ~ 7}1;4A?f~4. Dorothy emons. - Clerk o.the Village Council t Dated: october 20, 1980 \ -l7- . ()nJ. 7J...gD -.EXHIBIT A UNITED STATES OF AMERICA STATE OF OHIO , VILLAGE OF DUBLIN INDUSTRIAL DEVELOPMENT FIRST MORTGAGE REVENUE BOND (AVERY LAKE INVESTMENTS PROJECT) No. R-l. $470,000 ~ KNOW ALL MEN BY THESE PRESENTS, that the VILLAGE OF DUBLIN, OHIO (hereinafter called the "Issuer"), a municipal corporation and political subdivision in and of the State of Ohio, for val ue received,.. prouti ses to pay to BANK. ONE OF COLUMBUS,. N ..A.., or registered assigns, but solely from the sources and in the manner hereinafter set forth, the principal sum of FOUR HONDRED SEVENTY THOUSAND DOLLARS ($470,000) in consecutive monthly installments payable on the first day of each month commencing April 1, 1981, in the amounts set forth in the following table until said principal amount is , paid in full:' Monthly Principal Payment Monthly Principal Due Dates Amount Due April l, 1981 thru November 1, 1987 $2625 December l, 1987 thru March 1, 2001 l625 The Issuer further promises to pay from said sources interest on the unpaid balance from time to time of such principal amount from the date of delivery of this bond to the holder hereof at a rate per annum determined from month to month as hereafter provided and calculated on the basis of. the actual number of days elapsed divided by a year of 360 days, payable in consecutive monthly installments in arrears commencing Novemberl, 1980, until the aforesaid principal amount is paid in full; provided,- however, that on March 1, 2001, the entire unpaid principal balance hereof plus interest accrued thereon shall be paid in full~ Said interest rate, determined on the first day of each month and applicable for every day of that month,. shall be a rate per annum equal to the sum of three percent (3%).per annum plus the prime interest rate per annum announced from time to time by BANK ONE OF COLUMBUS, N~ A., at its principal office t- in Columbus, Ohio, for90-day loans to commercial borrowers , of substantial size and high credit standing multiplied by the difference between lOO% and the.highest aggregate effective federal corporate rate of taxation, expressed as a percentage, I imposed upon the income of corporations (including national banking associations), said effective rate of interest to be rounded to the nearest tenth of one percent; provided, however, that said effective rate of interest, as determined from month to month on the first day of each month, shall never be lower than six and one-half percent (6 l/2%l per annum nor higher than eighteen percent (l8%) per annum.. The foregoing payment provisions are subject to the provisions hereinafter mentioned with respect to increased interest, additional interest and redemption prior to maturity. Such principal and interest are payable in lawful money of the United States of America, without deduction for services of the paying agent, by check or draft mailed or delivered to the registered holder hereof at its principal office by the Bond Fund Holder or its successor (as provided in Section 2.4 of the Loan Agreement hereinafter' described), without presen- tation of this Bond. by said holder to the Bond Fund Holder~ except a payment or prepayment of principal which will discharge all indebtedness of the Issuer evidenced by this Bond. This Bond is. the duly authorized Industrial Development First Mortgage Revenue Bond (Avery Lake Investments Project) I (hereinafter called the "Project Bond"), issued pursuant to an ordinance adopted by the. Village Council of the Issuer (hereinafter called the "Bond Legislation") and for the purpose of making a loan to assist Avery Lake Investments, an Ohio general partnership (hereinafter called the Company), in the financing of costs of acquiring, constructing, improving, furnishing and equipping real and personal property comprising a new commercial office building located within the boundaries of the Issuer, said building being owned by the Company and leased to Dodge-Irelan, Inc. and Dublin Building Systems Co., both Ohio corporations, for use as corporate offices and for related purposes (hereinafter called the "Project"). The proceeds of the Project Bond will be loaned to the Company pursuant to a Loan Agreement, dated as of October 1, 1980 (hereinafter,. as the same may be amended according to its terms, called the "Agreement", and the loan made pursuant to the Agreement is hereinafter called the "Loan"), duly ..,. made and entered into between the Issuer and the Company in order to promote the economic welfare.of the people of the State of Ohio. and of the Issuer by creating or preserving jobs and employment opportunities. As provided in the Agreement, the obligation. of the Company to repay the Loan is evidenced by the Agreement and by a Promissory Note , (hereinafter called the "Note") in the original principal amount of $470,000, dated as of October l, 1980, made and executed by the Company and delivered to and payablato the order. of the Issuer. -2- . . " Pursuant to the Bond Legislation, which Bond Legislation is on file in the office of the Village Manager of the Issuer, and to the Conditional Assignments of the I Agr.eement and the Note, both dated as of October l, 19S0, the Issuer has pledged and assigned and granted a security interest in the Issuer's right, title and interest in, to and under the. Agreement and the Pledged Receipts (as defined in the Agreement), being, generally, the loan payments, premiums and other charges payable to the Issuer by the Company under and pursuant to the Agreement and the Note, to the holder of this Project Bond as security for its obliga- tion to pay the principal of and interest and any premium on this Project Bond. Reference is hereby made to the Bond Legislation for a more complete description of the provisions, among others, with respect to the nature and extent of the security, the rights, duties and obligations of the Issuer and the holder of this Project Bond and the terms and conditions upon which this Project Bond is issued and secured, to all of the provisions of which Bond Legislation the holder of this Project Bond, by the acceptance hereof, assents. This Project Bond is issued pursuant to Section 13 of Article VIII of the Constitution of the State of Ohio and to the laws of the State" particularly Chapter l65 of the Ohio Revised Code, and the Bond Legislation. This Project Bond is a special obligation of the Issuer, and the principal of and interest and any premium on this Project Bond (herein- e after collectively called the "Bond Service Charges") are payable solely from, and such payment is secured by a pledge of and lien on, the Construction Fund and the Bond Fund established by and as provided in the Bond Legislation and the Pledged Receipts (being, generally, the payments and other amounts payable under the Agreement in repayment of the Loan and the income and profit from the investment of such payments), and are not otherwise an obligation of the Issuer. THIS PROJECT BOND IS NOT SECURED BY ANY OBLIGATION OR PLEDGE OF ANY MONEYS RECEIVED, OR TO BE RECEIVED, FROM TAXATION LEVIED BY THE GENERAL ASSEMBLY OR ANY POLITICAL SUBDIVISION OR TAXING DISTRICT OF THE STATE OF OHIO AND DOES NOT NOW AND SHALL NEVER REPRESENT OR CONSTITUTE A DEBT OR PLEDGE OF THE FAITH AND CREDIT OF THE ISSUER OR OF THE STATE OF OHIO OR ANY POLITICAL SUBDIVISION THEREOF. Payments sufficient for the prompt payment when due of the Bond Service Charges are required by the Agre~ment to be paid by the Company to the Bond Fund Holder for the account of the Issuer and. deposited in a special account created by the Issuer and designated "Village of Dublin, Ohio - Avery Lake Investments Revenue Bond Account", which has been duly pledged for that purpose. This Project Bond is transferable by the registered , holder hereof, in person or by his attorney duly authorized -3- , in writing at the .office of the Director of Finance of the Issuer, upon presentation hereof to the Director of Finance, all subject to the terms and conditions provided in the. Bond Legislation, but only to a financial institution.as defined I by Section l726.01 of the Ohio Revised Code or any successor section thereto. This Project Bond is a negotiable instrument as provided by Section l65.03 of the Ohio Revised Code. This Project Bond is subject to optional redemption by the Issuer, at the direction of the Company, at any time, in whole or in part, in the event the Company exercises its option to prepay all or any portion of the unpaid principal balance of the Note. In such event, the Project Bond shall be redeemed, in whole or in part, by the Issuer within one day after the Note is prepaid by the Company, at a redemption price of 100% of the principal amount thereof plus accrued interest to the redemption date, and if redeemed in part, this Project Bond shall be redeemed in. amounts of $5,000 or any integral multiple thereof and in the inverse order of maturity of the principal payments required hereunder. The foregoing notwithstanding, in the event this Project Bond is redeemed with the proceeds of industrial development bonds issued for the purpose of refunding this Project Bond, and such refunding bonds are not purchased by the then-registered holder of this Project Bond, then the redemption price of this Project Bond shall be l02% of the principal' amount thereof then outstanding. I This Project Bond is subject to mandatory redemption by the Issuer at any time prior to final stated maturity in whole at a redemption price of lOO% of the principal amount thereof plus accrued interest to the redemption date if and when the Agreement shall have become void or unenforceable or impossible of performance in accordance with the intent and purpose of the parties as expressed in the Agreement by reason of any changes in the Constitution of the State of Ohio or the Constitution of the United States of America or by reason of legislative or administrative action (whether state or Federal) or any final decree, judgment or order of any court or administrative body (whether state or Federal) entered after the contest thereof by the Issuer' or the Company in good faith to such extent that the Note and the obligations evidenced. thereby are no longer enforceable by the holder thereof. Any such redemption shall be made not more than ninety (90) days following the effective date of any such constitutional amendment, legislation, administra- tive action or final decree, judgment or' order. This Project Bond is also subject to mandatory redemption by the Issuer at any time prior to final stated maturity in whole at a redemption price of lOO% of the I p~incipal amount thereof plus accrued interest to the redemp- -4- ~ ~ tion date if and when interest on this Project Sond shall have become subject to Federal income tax because of a Determination of Taxability (as defined in the Agreement). , Any such redemption shall be made not more than ninety (90) days following the date of the Determination of Taxability. Furthermore, in the event of a Determination of Taxability, the interest- rate on the principal amount outstanding here- under on and after the Date of Taxability (as defined in the Agreement) shall be automatically increased to a rate per annum which is three percent (3%) in excess of the prime interest rate per annum announced from time to time by SANK ONE OF COLUMSUS, N.A." at its principal office in Columbus., Ohio, for 90-day loans to commercial borrowers of substantial size and high credit standing, and said increased interest rate shall continue until such time as this Project Sond is redeemed in whole. All such interest at such increased rate which has accrued on and after the Date of Taxability and prior to and including the Loan Payment Date (as defined in the Agreement) immediately preceding the date of the Deter- mination of Taxability and which is in excess of the interest already paid on this Project Sond through and including such immediately preceding Loan Payment Date shall be due and payable on the first day of the first month succeeding the date of the Determination of Taxability. If at any time the Sond Fund Holder shall hold funds in a. separate account in the Bond Fund pursuant to I Sections 4.2-1'-5.2 or 5'.7 of the Agreement, there shall be an immediate mandatory redemption of the Project Sond. by the Issuer in the inverse order of maturity at a redemption price of lOO% of the principal amount thereof, plus accrued interest to the redemption date if redeemed in full, to such an extent as to exhaust such funds in said separate account. As provided in the ,Bond. Legislation, the Agreement and the Open-End Mortgage and Security Agreement granted by the Company and covering the Project and Project,Premises (as defined in the Agreement), the then-registered holder of this Project Bond is entitled to enforce the provisions of said Mortgage, to institute, appear in or defend any suit, action or proceeding to enforce any provisions of the Bond Legislation and, to take any action with respect to any Event of Default (as defined in the Agreement). If (I) any payment to be made under this Project Bond should not be made on the date provided for such payment to be made hereunder and should remain unpaid for a period of ten (10) days thereafter, or (II) any other Event of Default should occur, then for so long thereafter as such Event of Default shall continue uncured,. the then-registered holder of this Project Bond (hereinafter called the "Mort- I gagee It) may, at its option, do either one or both of the -5- ~ ~ , .' following: (I") declare, by giving notice to the Company and the Issuer in accordance with the provisions of the Agreement, the unpaid principal balance from time to time outstanding , to bear interest at a rate which shall be the sum of the rate of interest otherwise then payable hereunder plus two percent (2%) per annum from the date on which such Event of Default shall have first occurred through the date on which such Event of Default shall have been cured, and (2) declare, without notice or demand (said notice and demand being hereby expressly waived by the Issuer), the entire unpaid principal sum herein agreed to be paid, together with any interest accrued thereon but not theretofore paid, to be immediately due and payable and to thereafter bear interest at a rate which shall be the sum of the rate of interest otherwise payable hereunder plus two percent (2%) per annum; provided, however, that: (A) If the Mortgagee shall have proceeded to enforce any right hereunder or under any instrument securing payment, or otherwise executed in connection with the issuance, of this Project Bond and such proceeding shall have been discontinued or abandoned for any reason or shall have been determined ad- versely, then and in every such event the Issuer and the Mortgagee shall be reinstated to their former positions and rights here- I under, respectively, and all rights, remedies and powers of the Mortgagee shall continue unimpaired as before; (B) At any time, the Mortgagee may, in its discretion, waive its rights hereunder with respect to any Event of Default, provided that no such waiver shall apply to any other Event of Default whether prior or subsequent thereto; and ( C) At. any time, the Mortgagee may, in its. discretion,. rescind any declaration that this Project Bond be. immediately due and payable, whereupon tbeIssuer and the Mortgagee shall be reinstated to their former positions and rights hereunder,_ respectively, and all rights, remedies and powers of the Mortgagee shall continue unimpaired as before, provided that no such rescission shall apply to any other declaration, whether prior or subse- quent thereto. I -6- " .. - ' .. This Project Bond shall not constitute the personal obligation, either jointly or severally, of the members of the Village Council, or the officers, of the Issuer. I IT IS HEREBY CERTIFIED AND RECITED that-all acts, conditions and things necessary to be done or performed by the~ Issuer or to have happened precedent to and in the issuing of this Project Bond in order to make it a legal, valid and binding special obligation of the Issuer in accor- dance with its terms, and precedent to and in the execution and delivery of the Agreement, have been done and performed and have happened in regular and due form as required by law; that the Issuer has, in its behalf, received payment in full for this Project Bondi and that this Project Bond does not exceed or violate any constitutional or statutory limita- tion. IN WITNESS WHEREOF, the Village of Dublin" in the State of Ohio, has caused this Project Bond to be executed in the name of the Issuer by the manual signatures of its Village Manager and its Director of Finance, and the seal of the Village to be affixed hereto or reproduced hereon, all as of the lst day of October, 1980. VILLAGE OF DUBLIN, OaIO t By Village Manager By Director of Finance [S EAL] . I -7-