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HomeMy WebLinkAbout69-85 Ordinance ORDINANCE NO. 69-85 AN ORDINANCE AUTHORIZING THE ISSUANCE OF A $1,568,000 VILLAGE OF DUBLIN, OHIO INDUSTRIAL DEVELOPMENT REVENUE BOND (RIVER'S EDGE ONE PROJECT); AUTHORIZING A LOAN AGREEMENT AND A BOND PURCHASE AGREEMENT RELATING THERETO; AND DECLARING AN EMERGENCY. WHEREAS, the Village of Dublin, Ohio (herein called the "Issuer") is a municipal corporation and political subdivision in and of the State of Ohio, and by virtue of the laws of the State of Ohio, including Article VIII, Section 13 of the Constitution of Ohio and Chapter 165 of the Ohio Revised Code, is authorized and empowered, among other things, (a) to make loans for the acquisition, construction and equipping of a commercial facility within the boundaries of the Issuer, upon certain determinations by the Legislative Authority of the Issuer heretofore made and herein confirmed, (b) to issue revenue bonds of the Issuer for the purpose of providing funds to make such loans, (c) to secure such revenue bonds by a pledge and assignment of revenues from the loan of the bond proceeds for the payment of such revenue bonds, and (d) to enact this Bond Legislation and enter into the Bond Purchase Agreement and the Loan Agreement hereinafter identified, upon the terms and conditions provided therein; and WHEREAS, River's Edge One (hereinafter called the "Company") is a general partnership duly organized under the laws of the State of Ohio; and WHEREAS, the Legislative Authority of the Issuer has heretofore found and determined, and does hereby confirm that (a) the property to be acquired, constructed and equipped with the proceeds of the Bond herein authorized is now and after improvement will be useful to the Project hereinafter identified, and (b) the Project will benefit the people of the State of Ohio and the Issuer by increasing opportunities for employment and strengthening the economic welfare of the State of Ohio and the Issuer; and the Issuer shall assist in the financing of such property for the purpose of promoting the commercial and economic development of the Issuer, and thereby of the State of Ohio, and to create jobs and employment opportunities and improve the economic ,,- welfare of the people of the Issuer and thereby of the State of Ohio; and WHEREAS, it has been estimated and is determined by the Legislative Authority that the amount necessary to finance the cost of the Project, including necessary expenses incidental thereto, will require the issuance, sale and delivery of a Bond in the maximum principal amount of $1,568,000 as hereinafter provided, which Bond shall be payable from and secured by a pledge and assignment of the revenues to be derived from the Loan Agreement hereinafter identified and further secured by a Bond Purchase Agreement hereinafter provided for between the Issuer and the Lender; NOW, THEREFORE, BE IT ORDAINED, by the Council of the Village of Dublin, Ohio: SECTION 1. Determination and Approval of Legislative Authority. Pursuant to Section 165.03, Ohio Revised Code, the Legislative Authority hereby finds and determines that the Project is a "project" as defined in -2- Chapter 165 of the Ohio Revised Code, is consistent with the provisions of Section 13 of Article VIII, Ohio Constitution and will benefit the people of the Issuer by creating or preserving jobs and employment opportunities and promoting the industrial and economic development of the Issuer and the State. The Legislative Authority, as the "applicable elected representative" of the Issuer for purposes of Section 103(k) of the Code, hereby approves the issuance of the Bond in the principal amount of $1,568,000, the proceeds of which will be loaned to the Company to assist in financing the costs of the Project, generally consisting of the acquisition, construction and equipping of an office building and the site thereof, which facility will be located at the Southwest corner of the intersection of u.S. 33 and Ohio Route 161 in Dublin, Ohio. The Project will be owned by the Company and a major portion of the building will be leased to the National Water Well Association, a nonprofit Ohio corporation. SECTION 2. Definitions. In addition to the words and terms elsewhere defined in the Bond Legislation, the following words and terms as used in this Bond Legislation and in the Bond Purchase Agreement 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 form of any of the words and terms herein defined: "Authorized Company Representative" means the person at the time designated to act on behalf of the Company by written certificate furnished to the Issuer and the Lender, containing the specimen signature of such person and signed on behalf of the Company by a general partner of the Managing General Partner of the Company. Such certificate may designate an alternate or alternates. "Bond" means the $1,568,000 Industrial Development Revenue Bond identified in Section 3 of this Bond Legislation. "Bondholder" or "holder" means the Person to whose order the principal of and interest on the Bond are payable. "Bond Legislation" means this ordinance. "Bond Purchase Agreement" means the Bond Purchase Agreement between the Issuer and the Lender, dated as of November I, 1985, including this Bond Legislation as part thereof, as the same may be amended, modified or supplemented by any amendments or modifications thereof or supplements thereto entered into in accordance with the provisions thereof. "Code" means the Internal Revenue Code of 1954, as amended, and references to the Code and Sections of the Code shall include relevant regulations and proposed regulations thereunder and any successor provisions to such Sections, regulations or proposed regulations. "Company" means River's Edge One, a general partnership organized under the laws of the State of Ohio, and its lawful successors and assigns, -3- including surviving, resulting or transferee entities as provided in Section 7.3 of the Loan Agreement. "Date of Taxability" means the date as of which all or any part of the interest on the Bond is first required to be included for federal income tax purposes in the gross income of a holder thereof by reason of the occurrence of any circumstance on the basis of which a Determination of Taxability shall have been made. "Determination of Taxability" means either of the following shall have occurred: (i) The receipt by the Lender or the Bondholder of a ruling or technical advice by the Internal Revenue Service in which the Company has participated or has had the opportunity to participate, which has the effect of requiring all or any portion of the interest on the Bond to be included in the gross income for federal income tax purposes of a holder or former holder thereof (other than a holder or former holder who is or was a "substantial user" of the Project or a "related person" as such terms are used in Section I03(b) of the Code); or (ii) The delivery to the Lender, the Company and the Issuer of a written opinion of Independent Tax Counsel to the effect that such interest is so includible. "Financial Institution" means any life or casualty insurance company, any registered investment company, or any state or federally chartered commercial bank, savings bank or savings and loan association whose accounts are insured by either the Federal Deposit Insurance Corporation or the Federal Savings and Loan Insurance Corporation. "Guaranty Agreement means the Guaranty Agreement, dated as of November 1, 1985, among Jay H. Lehr, Pat B. Alcorn, Graham D. Browne, David L. Teal and Philip N. Pappas, as guarantors, and the Lender. "Independent Tax Counsel" means an attorney or firm of attorneys of nationally recognized standing on the subject of municipal bonds selected by the Lender or the Bondholder and approved by the Company, which approval shall not be unreasonably withheld. "Interest Rate for Advances" means a rate per annum which is the sum of the Prime Rate plus 2%. "Issuer" means the Village of Dublin, Ohio, a municipal corporation and political subdivision in and of the State, and its lawful successors. "Legislative Authority" means the Council of the Issuer and any officer, board, commission or other body which hereafter succeeds, by operation of law, to the powers and duties of such council. -4- "Lender" means Bank One, Columbus, NA, Columbus, Ohio, and its successors and assigns of which the Company has notice. "Loan Agreement" means the Loan Agreement between the Issuer and the Company, dated as of November 1, 1985, as from time to time amended pursuant to Section 11.5 thereof. "Loan Payments" means the amounts required to be paid by the Company pursuant to Sections 4.2 or 4.8 of the Loan Agreement. "Mortgage" means the Open End Mortgage and Security Agreement, between the Company and the Lender, dated as of November 1, 1985, pursuant to which the Company grants a mortgage on and a security interest in the Project to the Lender as additional security for the Note and the Bond. "Note" means the Promissory Note dated the date of the Bond payable to the order of the Issuer made by the Company to evidence the Company's obligations under the Loan Agreement and in particular the Company's obligation to make Loan Payments pursuant to the Loan Agreement, which Promissory Note is to be substantially in the form of Exhibit C to the Loan Agreement. "Person" means natural persons, firms, partnerships, associations, corporations and public bodies. "Prime Rate" means the rate of interest per annum designated from time to time by Bank One, Columbus, NA, Columbus, Ohio, as its prime rate of interest, such rate changing automatically and immediately from time to time effective as of the effective date of each such announced change. "Project" means the Project Site and the property identified in Exhibit A to the Loan Agreement, together with any additions and improvements thereto, modifications thereof and substitutions therefor, which property constitutes a commercial office facility. "Project Site" means the real estate described in Exhibit B to the Loan Agreement together with any additions thereto, modifications thereof and substitutions therefor. "State" means the State of Ohio. SECTION 3. Authorization and Terms of the Bond. It is hereby determined to be necessary to, and the Issuer shall, issue, sell and deliver, as provided herein, a bond designated "Village of Dublin, Ohio, Industrial Development Revenue Bond (River's Edge One Project)", in the aggregate principal amount of $1,568,000, pursuant to the authority of Article VIII, Section 13 of the Constitution of Ohio and Chapter 165 of the Ohio Revised Code, for the purpose of providing funds to lend to the Company so that the Company may acquire, construct and equip a commercial facility consisting of two office buildings and the site thereof. The Bond shall be issued in fully registered form, without coupons, and shall be dated as of the date of delivery thereof. In the event of a transfer of the Bond, at the request of the Lender and upon surrender of the -5- Bond to the Issuer, the Issuer shall execute and deliver to the transferee a new Bond, in fully registered form, without coupons, in the principal amount equal to the outstanding principal amount of the Bond surrendered and dated as of the date to which interest has been paid on the Bond surrendered. The Lender shall maintain registration books for the Bond. The Bond shall bear interest from its date on the outstanding principal amount thereof at a rate of eleven and' one-half percent (11-1/2%) per annum, subject to adjustment as hereinafter provided. Interest shall be calculated based upon the actual number of days elapsed and a 360 day year through and including April 30, 1986, and upon a 360 day year of twelve 30-day months after April 30, 1986. Accrued interest on the Bond shall be payable on the first day of December, 1985 and on the first day of each month thereafter through and including May 1, 1986. Commencing June 1, 1986 and continuing on the first day of each month through and including August 1. 1995, principal and interest shall be payable in equal monthly installments in an amount which, if paid on the first day of each month for 300 months, would fully amortize a loan whose principal amount equalled the outstanding principal balance of the Bond on May 1, 1986. The outstanding principal balance of the Bond and accrued interest thereon shall be due and payable on September 1. 1995. If, as a result of amendments to the Code. (a) the maximum marginal federal income tax rate applicable to corporations, as set forth in Section 11 of the Code, shall be changed from 46%, or (b) the reduction factor for certain financial institution preference items, as set forth in Section 291(a)(3) of the Code, shall be changed from 20%, the interest rate applicable to the Bond shall be automatically and immediately adjusted as follows: Adjusted interest rate (in percent per annum)=11.5[1+1.2176[.368-F(1-E)]] Where: F = the maximum marginal federal income tax rate applicable to the Lender. as set forth in Section 11 of the Code, expressed as a decimal fraction; and E = the reduction factor for certain financial institutions preference items, as set forth in Section 291(a)(3) of the Code. expressed as a decimal fraction. If the interest rate on the Bond is so adjusted at any time or from time to time, the equal monthly payments of principal and interest shall be adjusted, effective in the month immediately following the month of such interest rate adjustment. to an amount which, if paid on the first day of each month for a number of months equal to the difference between 300 and the number of whole months between June I. 1986 and the month in which such adjusted payment will commence, would fully amortize a loan whose principal amount equaled the outstanding principal amount of the Bond on the date of such adjustment and which bore interest at the adjusted interest rate. Notwithstanding the preceding two paragraphs. from and after a Determination of Taxability until the final maturity of the Bond, by redemption or otherwise, the interest rate on the Bond shall be a rate per annum equal to the sum of the Prime Rate plus 1-1/2%, with each change in the Prime Rate automatically and immediately resulting in a change in the interest rate borne by the Bond, and the monthly installment for each calendar month -6- commencing after the date of a Determination of Taxability shall be equal to the sum of the accrued interest on the Bond based upon an interest rate equal to the sum of the Prime Rate plus 1-1/2% and the amount by which the outstanding principal balance of the Bond would have been reduced in such month had the interest rate on the Bond remained at 11-1/2% per annum and had the monthly ~nstallment payment of principal and interest remained at the equal monthly installment amount determined pursuant to the second paragraph of this Section 3. An amount equal to the difference between (a) the amount of interest which would have been paid on the Bond had the interest rate per annum been the sum of the Prime Rate plus 1-1/2% for a period (the "Payment Period") beginning on the Date of Taxability and ending on the last day of the month in which occurs a Determination of Taxability and (b) the amount of interest actually paid on the Bond for the Payment Period shall be paid to the Bondholder (or apportioned among the Bondholder and any prior Bondholders during the Payment Period) within thirty (30) days after the date of a Determination of Taxability. An additional amount equal to the amount of interest and penalties imposed upon the Bondholder, or any prior Bondholders during the Payment Period, as a direct result of the includability of interest on the Bond in the gross income of such Bondholder or prior Bondholders for federal income tax purposes as a result of a Determination of Taxability shall be paid to such Bondholder or prior Bondholders within thirty (30) days after such Bondholder or prior Bondholders furnishes to the Company evidence of the amount of interest and penalties paid by such Bondholder or prior Bondholders. During the continuance of an event of default as defined in Section 7.01 of the Bond Purchase Agreement, the interest rate on the Bond shall automatically be increased to a rate equal to two percentum (2%) per annum over the Prime Rate. In the event of a transfer of the Bond, at the request of the Lender and upon surrender of the Bond to the Issuer, the Issuer shall execute and deliver to the transferee a new Bond, without coupons, payable to the order of the transferee, in the principal amount equal to the outstanding principal amount of the Bond surrendered and dated as of the date to which interest has been paid on the Bond surrendered. The Bond shall not be transferred by any Bondholder to other than a Financial Institution, and any purported transfer to other than a Financial Institution shall be void and of no effect. Any permitted transfer of the Bond shall be made in compliance with applicable state and federal securities laws. After a Determination of Taxability, the Bond shall be subject to redemption in whole at any time or in part in inverse order of maturing principal installments on any interest payment date at a redemption price of 100% of the principal amount redeemed plus accrued interest to the redemption date, in the event of exercise by the Company of its option to prepay all or a portion of the Loan Payments. Notice of the call for redemption of the Bond or a portion thereof shall be deemed given upon the Company's giving the Bondholder at least ten days advance notice of such redemption, which notice shall specify the principal amount of Bond to be redeemed and the date fixed for redemption. The Bond also shall be subject to redemption in whole at any time at a redemption price of 100% of the outstanding principal amount thereof plus accrued interest to the redemption date at the option of the Bondholder if and -7- when the Loan 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 Loan Agreement by reason of any changes in the Constitution 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 an opportunity for the contest thereof by the Issuer or the Company in good faith to such extent that the Loan Agreement and the obligations evidenced thereby are no longer enforceable by the holder thereof. Such redemption shall be made on a date selected by the Bondholder but not more than ninety (90) days following the date the Bondholder has received notice of any such constitutional amendment, legislation, administrative action, or final decree, judgment or order. The Bondholder shall give the Company written notice of the redemption date selected by the Bondholder at least forty-five (45) days before such redemption date. The Bond also shall be subject to mandatory redemption in part in inverse order of maturing principal installments on any interest payment date at a redemption price of 100% of the principal amount redeemed, if and to the extent that the Lender is holding any moneys for application in accordance with Section 10.3 of the Loan Agreement. Principal of and interest on the Bond shall be payable at the principal office of the Lender. The Bond shall be executed by the City Manager and the Director of Finance of the Issuer, provided that either, but not both, of such signatures may be facsimiles. SECTION 4. Additional Terms of the Bond. The Bond shall be payable as to principal and interest in lawful money of the United States, shall be a negotiable instrument and shall express on its face the purpose for which it is issued and such other statements or legends as may be required by law. In case any officer whose signature or a facsimile of whose signature shall appear on the Bond shall cease to be such officer before the issuance or delivery of the Bond such signature or such facsimile shall nevertheless be valid and sufficient for all purposes, the same as if he had remained in office until that time. As provided herein, the Bond shall be payable from the Loan Payments and secured by a pledge of and lien on any account established pursuant to the Loan Agreement and assignment of the revenues and other income, charges and moneys derived from the Loan Agreement payable to the Lender as herein provided, and further secured by the Bond Purchase Agreement, the assignment of the Note by the Issuer to the Lender, the Mortgage and the Guaranty Agreement; and anything in the Bond Legislation, the Bond or the Bond Purchase Agreement to the contrary notwithstanding, neither the Bond Legislation, the Bond, nor the Bond Purchase Agreement shall constitute a debt or a pledge of the faith and credit of the Issuer, and the Bond shall contain on the face thereof a statement to the effect that the Bond is payable solely from the aforesaid sources pledged to its payment; provided, however, that nothing -8- 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 Bond Purchase Agreement, the Bond Legislation or the Bond. SECTION 5. Sale of the Bond. The Bond is hereby offered for sale to the Lender at' a price of 100% of the principal amount thereof, in accordance with the terms and provisions of the Bond Purchase Agreement. The City Manager and the Director of Finance of the Issuer, and either of them, are hereby authorized to make the necessary arrangements on behalf of the Issuer with the Lender to establish the date, location, procedure and conditions for the delivery of the Bond to the Lender and to take all steps necessary to effect delivery and security of the Bond under the terms of this Bond Legislation and the Bond Purchase Agreement and it is hereby determined that the price and the interest rate for the 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. SECTION 6. Disbursement,of Bond Proceeds. The Lender shall pay the purchase price of the Bond by disbursing Bond proceeds in accordance with the provisions of the Loan Agreement, and the Lender is hereby authorized and directed to make such disbursements. The date and amount of each such disbursement shall be recorded, by the Lender, on the Disbursement Schedule attached to the Bond. The aggregate of all such disbursements shall not exceed $1,568,000, and the Lender shall not be required to make any such disbursement after April 30, 1986. SECTION 7. Source of Payment. The Project is to be financed pursuant to the provisions of the Loan Agreement, which Loan Agreement provides that the Company shall remit Loan Payments directly to the Lender for the account of the Issuer, which Loan Payments shall be applied to payment of amounts payable with respect to the principal of and interest on the Bond. The Loan Payments are required to be sufficient in amount to pay the principal of and interest on the Bond and the entire amount of the Loan Payments is pledged to the payment of the principal of and interest on the Bond. Under the terms of the Loan Agreement, the Company additionally has agreed to assume and pay all necessary expenses which the Issuer is required to incur for the Project and the fees and expenses of the Lender incurred in connection with the purchase of the Bond or charged in connection with the collection and distribution of payments of principal of or interest on the Bond. The Issuer hereby covenants and agrees that so long as the Bond is outstanding it will pay, or cause to be paid, to the Lender sufficient sums of Loan Payments or other income, charges and moneys derived from the Loan Agreement promptly to meet and pay the principal of and interest on the Bond as the same becomes due and payable, and that should there be a default under the Loan Agreement, the Issuer shall fully cooperate with the Lender to the end of fully protecting the rights and security of the Lender. SECTION 8. Covenants of Issuer. In addition to the other covenants of the Issuer in this Bond Legislation and the Bond Purchase Agreement -9- contained, the Issuer further covenants with the Bondholder and the Lender as follows: (a) Payment of Principal and Interest. The Issuer will, solely from the sources herein provided, pay the principal of and interest on the Bond on the dates and at the places and in the manner mentioned in the Bond, according to the true intent and meaning thereof. (b) Performance of Covenants, Authority and Actions. The Issuer covenants that it will faithfully observe and perform at all times all agreements, covenants, undertakings, stipulations and provisions contained in the Bond Legislation, the Bond Purchase Agreement, the Loan Agreement and in the Bond and in all proceedings of its Legislative Authority pertaining to the Bond or the Loan Agreement. The Issuer covenants that it is duly authorized by the Constitution of Ohio and the laws of the State, particularly and without limitation Section 13 of Article VIII of the Constitution of Ohio and Chapter 165, Ohio Revised Code, to execute and deliver the Loan Agreement, to endorse and deliver the Note, to issue the Bond authorized hereby and to execute and deliver the Bond Purchase Agreement, and to pledge the Loan Payments in the manner and to the extent herein and in the Bond Purchase Agreement set forth; that all actions on its part for the issuance of the Bond and execution and delivery of the Loan Agreement and the Bond Purchase Agreement and endorsement and delivery of the Note have been duly and effectively taken, and that the Bond in the hands of the Bondholder is and will be a valid and binding special obligation of the Issuer enforceable according to the terms thereof except as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws in effect from time to time affecting the rights of creditors generally and the availability of equitable remedies. All of the obligations and duties of the Issuer and its officers and members of the Legislative Authority in its behalf, under the Loan Agreement, Bond Legislation and the Bond Purchase Agreement are hereby established as duties specifically enjoined by law and resulting from an office, trust or station of the Issuer and its officers and members of the Legislative Authority within the meaning of Section 2731.01, Ohio Revised Code. (c) Maintenance of Lien. Except as otherwise provided in this Bond Legislation, the Bond Purchase Agreement and the Loan Agreement, the Issuer will not make any pledge or assignment of or create any lien or encumbrance upon the Loan Payments other than the pledge and assignment thereof under this Bond Legislation and the Bond Purchase Agreement. (d) Payment of Taxes, Charges, Etc. Pursuant to and subject to the provisions of Section 5.3 of the Loan Agreement, the Company has agreed to pay all lawful taxes, assessments and charges at any time lawfully levied or assessed upon or against the Project, or any part thereof; provided, however, that nothing contained in this Section shall require the payment of any such taxes, assessments or charges if the same are not required to be paid under the provisions of Section 5.3 of the Loan Agreement. (e) Maintenance and Repair. Pursuant to and subject to the provisions of Section 5.1 of the Loan Agreement, the Company has agreed at its own expense to cause the Project to be kept in good repair and good operating -10- condition, and the Company may, at its own expense, from time to time undertake additions, remodeling, modifications and improvements to the Project under the terms and conditions set forth in Sections 5.1 and 5.2 of the Loan Agreement. (f) Public Records. The Issuer covenants that it will cause necessary financing statements, amendments thereto, continuation statements and instruments of similar character relating to the pledges made by it to secure the Bond, to be recorded and filed in such manner and in such places as may be required by law in order to fully preserve and protect the security of the Lender. - (g) Inspection of Project Books. The Issuer covenants and agrees that all books and documents in its possession or control relating to the Project and the revenues derived from the Project shall at all times be open to inspection by such accountants or other agents as the Lender may from time to time designate. (h) Rights under the Loan Agreement. The Loan Agreement, duly executed counterparts of which upon delivery of the Bond will have been filed with the Lender, sets forth the covenants and obligations of the Issuer and the Company, including a provision in Section 11.5 thereof that subsequent to the issuance of the Bond and prior to payment of the Bond in full, the Loan Agreement may not be effectively amended, changed, modified, altered, or terminated (other than as provided therein or herein) without the prior written consent of the Lender, and reference is hereby made to the Loan Agreement for a detailed statement of said covenants and obligations of the Company under the Loan Agreement, and the Issuer agrees that the Lender in its name or in the name of the Issuer may enforce all rights of the Issuer and all obligations of the Company under and pursuant to the Loan Agreement for and on behalf of the Bondholders, whether or not the Issuer is in default of the enforcement of such rights and obligations. (i) Maintenance of the Loan Agreement. The Issuer covenants that it shall do all things on its part necessary to maintain the Loan Agreement in effect in accordance with the terms thereof and will take all actions necessary to enforce and protect the rights of the Issuer under the Loan Agreement, including actions at law and in equity, as may be appropriate. (j) Investment of Moneys. Any moneys held as a part of any account held by the Lender pursuant to the Bond Purchase Agreement or the Loan Agreement shall, at the written request, or oral request confirmed in writing, of the Authorized Company Representative, be invested or reinvested by the Lender in: (i) obligations issued by the United States of America or by any Person controlled or supervised by and acting as an instrumentality of the United States of America pursuant to authority granted by Congress, (ii) certificates of deposit issued by, or deposits at, banks, trust companies or savings and loan associations, including the Lender or affiliates of the Lender, organized under the laws of the United States of America or any state thereof, which have an aggregate of capital, paid in surplus and retained earnings of at least $10,000,000, or issued by or drawn on or deposited at any branch of such a bank, trust company or savings and loan association, whether -11- within or without the United States of America, (iii) commercial paper rated "P-l" or "A-I" or their equivalents by Moody's Investors Service, Inc. or Standard & Poor's Corporation or any successor of either, including variable rate notes of obligors whose commercial paper is so rated, and (iv) any repurchase agreement or variable amount master demand note including those of the Lender or affiliates of the Lender, fully secured by obligations described in (i) of this paragraph. The type, amount and maturity (which shall be such so that the moneys invested will be available to make payments from the account in accordance with the provisions of the Bond Legislation and the Loan Agreement) of such investments shall be as specified by the Authorized Company Representative. Any such investment made by the Lender may be purchased from or through, or sold to, the Lender, or any affiliate of the Lender, and such investments shall be held by or under the control of the Lender and shall be deemed at all times a part of the account, and the interest accruing thereon and any profit realized therefrom shall be credited to the account and any loss resulting from such investments shall be charged to the account. SECTION 9. Bond Purchase Agreement and Loan Agreement. In order to better secure the payment of the principal of and interest on the Bond, the City Manager and. the Director of Finance of the Issuer, and either of them, are authorized and directed to execute, acknowledge and deliver, as may be appropriate, in the name and on behalf of the Issuer, a Bond Purchase Agreement, herein identified as and called the Bond Purchase Agreement, and the Loan Agreement, each in substantially the form submitted to this Legislative Authority, and to endorse upon the Note the assignment to the Lender, which instruments are hereby approved in all respects with such changes therein not inconsistent with this Bond Legislation and not substantially adverse to the Issuer as may be permitted by law and approved by the officers executing the same. The approval of such changes by such officer, and that they are not substantially adverse to the Issuer, shall be conclusively evidenced by the execution of the Bond Purchase Agreement and the Loan Agreement and the endorsement of the Note, respectively, by such officer. The Clerk of this Legislative Authority is hereby directed to insert copies thereof, in the forms submitted to this meeting and approved hereby, in the record of proceedings of this Legislative Authority with the minutes of this meeting and to certify thereon that the same are in the form of the instruments so submitted to this Legislative Authority and approved by this Bond Legislation and identified herein as the Bond Purchase Agreement, the Loan Agreement and the Note. Said Bond Purchase Agreement, Loan Agreement and Note contain provisions authorized and permitted by Chapter 165 of the Ohio Revised Code. This Bond Legislation shall constitute a part of the Bond Purchase Agreement, as therein provided and for all purposes including the provisions thereof relating to amendment thereto and to the separability of provisions of the Bond Purchase Agreement. The City Manager or the Director of Finance of the Issuer shall execute and deliver such financing statements and continuation statements as may be necessary to evidence the liens applicable to the Loan Payments, proceeds of the Bond and other revenues to be derived therefrom. SECTION 10. Arbitrage. The Issuer hereby covenants that it will restrict the use of the proceeds of the Bond in such manner and to such extent -12- as may be necessary, in view of reasonable expectations at the time of issuance of the Bond, so that the Bond will not constitute an "arbitrage bond" under Section 103(c) of the Code and regulations prescribed under such Section. The Issuer will submit or cause to be submitted an Information Return for Private Activity Bond Issuer, IRS Form 8038, to the Internal Revenue Service, setting forth the information required by Section 103(1) of the Code. The City Manager or the Director of Finance of the Issuer or any other officer of the Issuer having responsibility with respect to issuance of the Bond is hereby authorized and directed to (i) give an appropriate certificate for inclusion in the transcript of proceedings with respect to the Bond, upon receipt of appropriate assurances in writing from the Company, setting forth the facts, estimates and reasonable expectations pertinent under said Section 103(c) and regulations prescribed under such Section, and (ii) submit or cause to be submitted the information return described in the preceding sentence which shall be based on the relevant information provided by the Company. SECTION ll. Sunshine Law. This Legislative Authority hereby finds and determines that all formal actions taken relative to the adoption of this ordinance were taken in an open meeting of this Legislative Authority, and that all deliberations of this Legislative Authority and of its committees that resulted in such formal actions were 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; Prevailing Wage Coordinator. All wages paid to 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, Ohio Revised Code, for determination of prevailing wage rates; provided, that if the Company or other nonpublic user beneficiary undertakes, as a part of the Project, construction to be performed by its regular bargaining unit employees who are covered under a collective bargaining agreement which was in existence prior to May 13, 1985, the rate of pay provided under the applicable collective bargaining agreement may be paid to such employees. SECTION 13. Emergency Effective Date. This ordinance is hereby determined to be an emergency measure, the immediate passage of which is necessary for the preservation of the public peace, health, safety or welfare and for the further reason that the ordinance must be immediately effective so that completion of the acquisition, construction and equipping of the Project can be effective as soon as possible in order that the Issuer and its residents may enjoy the benefits of the additional employment opportunities at the earliest time; wherefore, this ordinance s be in full force and effect immediately after its passage. Passed: November 4, 1985 Attest.:-&.A~ ~ ~ 1erk of C nei , hereby certitt that copies of thi~ O~dinance/Resoluti~~ t d in the Village of Dublin In accordance WI were pos e . Section 131.25 of the C:lia RC\Jlsed Code. ~///1l~LO Y7J' ~ -13- Clerk cf Council