Loading...
24-04 Ordinance RECORD OF ORDINANCES Davton Legal Blank, [nc. Form No. 30043 Ordinance No. 24'04 (amended Passed , 20 AN ORDINANCE PROVIDING FOR THE ISSUANCE AND SALE OF BONDS IN THE MAXIMUM PRINCIPAL AMOUNT OF $1,550,000 TO PAY COSTS OF ACQUIRING REAL ESTATE AND INTERESTS IN REAL ESTATE FOR PARK PURPOSES, AUTHORIZING A RELATED LOAN AGREEMENT WITH THE OHIO MUNICIPAL BOND PROGRAM, AND DECLARING AN EMERGENCY. WHEREAS, Seasongood and Mayer, L LC, has p roposed The Ohio Municipal Bond Pooled Financing Program (the "Program") whereby participating municipalities financing improvements, by issuing bonds or notes and entering into related loan agreements, and taking other related actions, may be able to achieve debt service and issuance cost savings when compared to that which could be the case if those municipalities financed those improvements separately; and WHEREAS, that Program provides for each participating municipality to enter into a loan agreement with the Columbus Regional Airport Authority, Ohio (the "Port Authority"), which Port Authority has entered into an I ndenture of Trust dated as of January 1, 2004 with National City Bank, as trustee (together with any successors, the "Trustee"), assigning certain payments to be received with respect to those loan agreements to the Trustee and authorizing the issuance and sale of revenue bonds constituting special obligations of the Port Authority payable solely from payments to be received with respect to the Program loans; and WHEREAS, pursuant to Chapter 133 and Sections 4582.21 et seq. of the Revised Code, this Council has determined it to be appropriate to participate in the Program by issuing the Bonds described and authorized herein to the Port Authority (the "Original Purchaser") and, in connection therewith, entering into a loan agreement with the Port Authority as required by the Program and further described in Section 8 hereof (the "Loan Agreement"); and WHEREAS, this Council has requested that the Director of Finance, as fiscal officer, certify the estimated life or period of usefulness of the improvement described in Section 2, and the maximum maturity of the bonds described in Section 2; and WHEREAS, the Director of Finance as fiscal officer of this City has certified to this Council that the estimated life or period of usefulness of the improvement described in Section 2 hereof is at least five years and the estimated maximum maturity of the bonds described in Section 2 hereof is thirty years; NOW, THEREFORE, BE IT ORDAINED by the Council of the City of Dublin, Franklin, Union and Delaware Counties, Ohio, that: Section 1. Definitions and Interpretation. In addition to the words and terms elsewhere defined in this Ordinance, unless the context or use clearly indicates another or different meaning or intent: "Authorized Denorninations" means denominations of $1,000 or any integral multiple thereof. "Bond proceedings" means, collectively, this Ordinance, the Certificate of Award, and such other proceedings of the City, including the Bonds, that provide collectively for, among other things, the rights of holders and beneficial owners of the Bonds. "Bond Register" means all books and records necessary for the registration, exchange and transfer of Bonds as provided in Section 6. "Bond Registrar" means the entity designated in the Certificate of Award pursuant to Section 4(b) to act as the authenticating agent, bond registrar, transfer agent, RECORD OF ORDINANCES Dayton Legal Blank, Inc. Fonn No. 30043 Ordinance No. 24-04 (amended) Passed Page ~ . 20 and paying agent for the Bonds and which may be either (a) the Director of Finance, or (b) a bank or trust company authorized to do business in the State of Ohio and undertaking those duties under the Registrar Agreement and until a successor Bond Registrar shall have become such pursuant to the provisions of the Registrar Agreement and, thereafter, "Bond Registrar" shall mean the successor Bond Registrar. "Bonds" means, collectively, the Serial Bonds and/or the Term Bonds, each as is designated as such in the Certificate of Award. "Certificate of Award" means the certificate authorized by Section 7, to be executed by the Director of Finance, setting forth and determining those terms or other matters p ertaining t o t he B onds a nd their i ssuance, s ale a nd delivery a s t his Ordinance requires or authorizes to be set forth or determined therein. "Closing Date" means the date of physical delivery of, and payment of the purchase price for, the Bonds. "Interest Payment Dates" means January 1 and July 1 of each year that the Bonds are outstanding, commencing on the date provided in the Certificate of Award. "Loan Agreement" means the Loan Agreement by and between the City and the Port Authority relating to the Bonds. "Original Purchaser" means Seasongood & Mayer, LLC. "Principal Payment Dates" means January 1 in each of the years from and including January 1, 2005 to and including January 1, 2009, provided that the first Principal Payment Date may be advanced up to one year and the last Principal Payment Date maybe advanced or extended up to five years, which determination shall be made by the Director of Finance in the Certificate of Award in such manner as to be in the best interest of and financially advantageous to the City and further provided that in no case shall the final Principal Payment Date exceed the maximum maturity of the Bonds referred to in the preambles hereto. "Registrar Agreement" means, in the case of a bank or trust company designated to act as Bond Registrar, the Bond Registrar Agreement between the City and such Bond Registrar as it may be modified from the form on file with the Clerk of Council and executed by the Director of Finance, all in accordance with Section 4(b). "Serial Bonds" mean those Bonds designated as such and maturing on the dates set forth in the Certificate of Award, bearing interest payable on each Interest Payment Date and not subject to mandatory sinking fund redemption. "Term Bonds" means those Bonds designated as such and maturing on the date or dates set forth in the Certificate of Award, bearing interest payable on each Interest Payment Date and subject to mandatory sinking fund redemption. The captions and headings in this Ordinance are solely for convenience of reference and in no way define, limit or describe the scope or intent of any Sections, subsections, paragraphs, subparagraphs or clauses hereof. Reference to a Section means a section of this Ordinance unless otherwise indicated. Section 2. Authorized Principal Amount and Purpose. This Council determines that it is necessary and in the best interest of the City to issue bonds of this City in the aggregate principal amount not to exceed $1,550,000 (the "Bonds") for the purpose of paying the costs of acquiring real estate and interests in real estate for park purposes. It is hereby found, determined and confirmed by this Council that the activities and services to be provided thereby and therefrom will be of value to the general welfare RECORD OF ORDINANCES Dayton Legal Blank, Inc. Form No. 30043 Ordinance No. 24-04 (amended) passed Page 3 20 and benefit of the City and will confer resulting benefits upon its residents. This Bond shall be issued pursuant to the Charter of the City, Chapter 133 of the Revised Code, and this Ordinance. The aggregate principal amount of Bonds to be issued shall not exceed $1,550,000 and shall be an amount determined by the Director of Finance in the Certificate of Award to be the aggregate principal amount of Bonds that is required to be issued at this time for the purpose stated in this Section 2, taking into account costs of the improvement, estimates of financing costs, and interest rates on the Bonds. The proceeds from the sale of the Bonds, except any premium and accrued interest, shall be paid into the proper fund or funds, and those proceeds are appropriated and shall be used for the purpose for which the Bonds are being issued. Any portion of those proceeds representing premium and accrued interest shall be paid into the Bond Retirement Fund. Section 3. Denomination; Principal and Interest Payment and Redemption. The Bonds shall be issued in one lot; shall bear such designation as set forth in the Certificate of Award described below; shall be dated as of their date of issuance; and shall mature as set forth in subsection 3(a) below. (a) Principal Payment Schedule. The Bonds shall mature on January 1, in each of the years and the amounts, as follows: Maturity Maturing Year Amount 2005 $248,000 2006 310,000 2007 314,000 2008 320,000 2009 326,000 Those maturities are determined to be in such principal installments that the total principal and interest payments on the Bonds in any fiscal year in which principal is payable is not more than three times the amount of those payments in any other fiscal year. (b) Denominations. The Bonds shall be issued in fully registered form, provided t hat t he e ntire principal a mount m ay b e r epresented b y a s Ingle m anuscript bond. The Bonds shall be numbered in the order of their authentication and shall be in the denomination of $1,000 or any integral multiple thereof. (c) Interest Rates and Payment Dates. The Bonds shall bear interest (computed on the basis of a 360-day year) at a rate not to exceed five per cent (5%) per year, payable on the Interest Payment Dates. In the event the City does not pay or make provision for payment of the debt charges on the Bonds payable on an Interest Payment Date, the Bonds, as provided for and in accordance with the Loan Agreement, shall bear interest at the Late Payment Rate as defined in the Loan Agreement. Interest on the Bonds shall be payable on each Interest Payment Date until the principal amount has been paid or provided for. The Bonds shall bear interest from the most recent date to which interest has been paid or provided for or, if no interest has been paid or provided for, from their date of issuance. The rate or rates of interest on the Bonds shall be determined by the Director of Finance in the certificate awarding the Bonds in accordance with Section 7 hereof (the "Certificate of Award"). Furthermore, the Director of Finance, in accordance with that officer's determination of the best interest of a nd f financial a dvantages t o t he C ity, m ay i n t he C ertificate o f A ward (as d efined RECORD OF ORDINANCES Dayton Legil Blank Inc. Form No. 30043 ordinance No. 24-04 (amended) passed Page 4 20 below) (i) increase or decrease any such principal installment set forth above by an amount up to $15,000 so long as the total of all such principal installments does not exceed the aggregate principal amount of the Bonds authorized in Section 2 hereof and so long as the total principal and interest payments on the Bonds in any fiscal year in which principal is payable is not more than three times the amount of those payments in any other fiscal year, and (ii) revise the date of the principal and interest payments on the Bonds to any other date in January or July, or to any other date in any other months, so long as such date is the same date in each of those months. (d) Additional Participant Costs. As provided for, and as defined in, the Loan Agreement, Additional Participant Costs, including Credit Fees, are also an obligation of the City under the Loan Agreement, and, to the extent any such costs are due and payable at any time in addition to the debt charges on the Bonds, then such costs are hereby determined to be future financing costs related to the Bonds in accordance with Section 133.01(K) of the Revised Code, and as such the same shall be payable when due under the Loan Agreement from the same sources from which debt charges on the Bonds are paid and as though debt charges on the Bonds for purposes of Section 10 hereof. (e) Redemption. The Bonds shall be subject to redemption, by and at the sole option of the City, pursuant to and in accordance with the Loan Agreement and at the Optional Prepayment Price as defined in the Loan Agreement. Section 4. Execution and Authentication of Bonds; Appointment of Bond Re isg tray. (a) Execution and Authentication. The Bonds shall be signed in the name of the City and in their official capacities by the Mayor or Deputy Mayor and the Director of Finance, provided that either or both of such signatures may be a facsimile, and shall express upon their faces the purpose for which they are issued and that they are issued pursuant to the provisions of Chapter 133 of the Revised Code, the Charter of this City and this Ordinance. As provided for in the Loan Agreement, the Bonds shall initially be issued as a single manuscript bond, registered in the name of the Original Purchaser. No Bond shall be valid or become obligatory for any purpose or shall be entitled to any security or benefit under this Ordinance unless and until a certificate of authentication on the Bond is signed by the Bond Registrar (as provided for in Section 4(b) hereof) as authenticating agent. Authentication by the Bond Registrar shall be conclusive evidence that the Bond so authenticated has been duly authenticated and delivered hereunder and is entitled to the security and benefit of this Ordinance. (b) Appointment of Bond Re isg tray. The Director of Finance is hereby authorized to designate the Bond Registrar in the Certificate of Award which maybe either (i) the Director of Finance or (ii) a bank or trust company authorized to do business in the State of Ohio, which case, the Director of Finance shall sign and deliver, in the name and on behalf of the City, the Registrar Agreement between the City and any such bank or trust company designated as the Bond Registrar, in substantially the form as is now on file with the Clerk of Council. Such Registrar Agreement is approved, together with any changes or amendments that are not inconsistent with this Ordinance and not substantially adverse to the City and that are approved by the Director of Finance on behalf of the City, all of which shall be conclusively evidenced by the signing of the Registrar Agreement or amendments thereto. The Director of Finance shall provide for the payment of the services rendered and for reimbursement of expenses incurred pursuant to such Registrar Agreement, except to the extent paid or reimbursed by the Original Purchaser in accordance with the Purchase Agreement, from the proceeds of the Bonds to the extent available and then from other money lawfully available and appropriated or to be appropriated for that purpose. RECORD OF ORDINANCES Dayton Leeal Blank. Inc. Form No.300d3 ordinance No. 24-04 (amended) passed Page 5 20 Section 5. Payment of Debt Charges. The debt charges on the Bonds shall be payable in lawful money of the United States of America without deduction for the services of the Paying Agent. Unless the entire principal amount is represented by a single manuscript bond, the principal of the Bonds shall be payable upon presentation and surrender of the Bonds at the office of the Paying Agent and the interest on the Bonds shall be payable on each Interest Payment Date by check or draft mailed or delivered to the person in whose name the Bond is registered, and to that person's address appearing, on the Bond Register (as defined in Section 6 hereof), at the close of business on the fifteenth (15th) day preceding that Interest Payment Date (the "Record Date"). If the entire principal amount of the Bonds is represented by a single manuscript bond, then all of the debt charges on the Bonds shall be payable on each Interest Payment Date by check or draft mailed or delivered to the Holder at the address appearing on the Bond Register on the Record Date and the receipt of each payment of debt charges shall be acknowledged in writing to the City and endorsed by the Holder on the payment schedule on that single manuscript bond. Section 6. Registration; Transfer and Exchange. (a) Bond Registration. So long as any of the Bonds remain outstanding, the City will cause the Bond Registrar to maintain and keep at the office of the Bond Registrar all books and records necessary for the registration and transfer of Bonds as provided in this Section (herein referred to as the "Bond Register"). Subject to the provisions of Section 5 hereof, the person in whose name a Bond is registered on the Bond Register shall be regarded as the absolute owner thereof for all purposes of this Ordinance. Payment of or on account of the principal of and interest on any Bond shall be made only to or upon the order of that person; the City, the Bond Registrar and the Paying Agent shall not be affected by any notice to the contrary, but the registration may be changed as herein provided. All such payments shall be valid and effectual to satisfy and discharge the City's liability upon the Bonds, including interest and maturing principal, to the extent of the amount or amounts so paid. (b) Transfer and Exchange. Any Bond may be exchanged for Bonds of any Authorized Denomination upon presentation and surrender at the office of the Bond Registrar, together with a request for exchange signed by the registered owner or by a person legally empowered to do so in a form satisfactory to the Bond Registrar. A Bond may be transferred only on the Bond Register, upon presentation and surrender thereof at the office of the Bond Registrar, together with an assignment executed by the registered owner or by a person legally empowered to do so in a form satisfactory to the Bond Registrar. Upon exchange or transfer, the Bond Registrar shall complete, authenticate and deliver a new Bond or Bonds of any Authorized Denomination equal in the aggregate to the unmatured and unredeemed principal amount of the Bonds surrendered, and bearing interest at the same rate and maturing on the same date. If manual signatures on behalf of the City are required, the Bond Registrar shall undertake the exchange or transfer of Bonds only after the new Bonds are signed by the authorized officers of the City. In all cases of exchanged or transferred Bonds, the City shall sign and the Bond Registrar shall authenticate and deliver Bonds in accordance with the provisions of this Ordinance. The exchange or transfer shall be without charge to the owner; except that the City and Bond Registrar may make a charge sufficient to reimburse them for any tax or other governmental charge required to be paid with respect to the exchange or transfer. The City or the Bond Registrar may require that those charges, if any, be paid before the procedure for the requested exchange or transfer is begun. All Bonds issued upon any exchange or transfer shall be valid obligations of the City, evidencing the same debt, and entitled to the same benefits under this Ordinance, as the Bonds surrendered for that transfer or exchange. RECORD OF ORDINANCES Dayton Legal Blank, Inc. Form No. 30043 Orctinnnce No. 24-04 (amended) Passed Page 6 20 Any Bond surrendered to the Paying Agent pursuant to this Ordinance for the purpose of payment or retirement shall be cancelled by the Paying Agent and forwarded promptly to the Bond Registrar. Any Bond surrendered to the Bond Registrar pursuant to this Ordinance for exchange, replacement or transfer, shall be cancelled by the Bond Registrar. The City may at any time deliver to the Bond Registrar for cancellation any Bonds previously authenticated and delivered hereunder, which the City may have acquired in any manner whatsoever, and those Bonds shall be promptly cancelled by the Bond Registrar. The cancelled Bonds shall be retained for a period of four years and then destroyed by the Bond Registrar. Section 7. Sale of the Bonds. The Bonds shall be awarded and sold by the Director of Finance to the Original Purchaser at private sale at a purchase price not less than 97% of the aggregate principal amount thereof plus any accrued interest on the Bonds from their date of issuance, as shall be specified in the Certificate of Award, and with and upon such other terms as are required or authorized by this Ordinance to be specified in the Certificate of Award, in accordance with law, the provisions of this Ordinance and the Loan Agreement. The Director of Finance shall sign the Certificate of Award evidencing that sale and determining the interest rate or rates on the Bonds, the designation thereof, any changes in the principal installments thereof and any changes in the principal and interest payment dates, all within the limits set forth in Section 3 hereof, cause the Bonds to be prepared and, following their sale, shall have the Bonds signed and delivered, together with a true transcript of proceedings with reference to the issuance of the Bonds, to the Original Purchaser upon payment of the purchase price. The Mayor, the Deputy Mayor, the City Manager, the Director of Finance, the Clerk of Council, the Law Director and other City officials, as appropriate, are each authorized and directed to sign any transcript certificates, financial statements and other documents and instruments, including but not limited to swap agreements, and to take such actions as a re n ecessary o r a ppropriate t o c onsummate t he t ransactions c ontemplated b y t his Ordinance. Section 8. Loan Agreement. In order to provide for the sale of the Bonds and to enable the City to participate in the Program, the City Manager and the Director of Finance are authorized to sign and deliver, in the name and on behalf of the City, the Loan Agreement between the City and the Original Purchaser, in substantially the form as is now on file with the Clerk of Council, providing the terms upon which the Bonds are being sold to, and purchased by, the Original Purchaser. The Loan Agreement is approved, together with any changes or amendments that are not inconsistent with this Ordinance and not substantially adverse to the City and that are approved by the City Manager and the Director of Finance on behalf of the City, all of which shall be conclusively evidenced by the signing of the Loan Agreement or amendments thereto. It is hereby determined by this Council that the issuance and sale of the Bonds at private sale to the Original Purchaser in accordance with this Ordinance and the Certificate of Award, and the City's participation in the Program and its execution and delivery of the Loan Agreement is necessary and proper and in the best interests of the city. Section 9. Application of Proceeds. The proceeds from the sale of the Bonds, except any premium and accrued interest, shall be paid into the proper fund and those proceeds are appropriated and shall be used for the purpose for which the Bonds are being issued, including, without limitation, the payment of the costs of issuing the Bonds, the costs of legal services, including obtaining the legal opinion of bond counsel, and all other costs incurred or incidental to those purposes, including meeting the obligations of the City under t he Loan A greement i n t he current f fiscal year. All a mounts n ecessary t o p ay those costs and fees are hereby appropriated from the proceeds of the Bonds and from funds available in the Bond Retirement Fund of the City and other available funds of the City for such purpose, and the Director of Finance is hereby authorized and directed RECORD OF ORDINANCES Dayton Legal Blank, Inc. Form No. 30043 Ordinance No. 24-04 (amended) passed Page 7 , 20 to make appropriate certifications as to the availability of funds for those costs and fees as the amounts thereof become known and shall encumber those amounts immediately upon such certification, but not in excess of the appropriation made herein, and to issue an appropriate order for their timely payment as the same shall become due and payable. Any portion of those proceeds representing premium and accrued interest shall be paid into the Bond Retirement Fund to be applied to the payment of the debt charges on the Bonds in the manner provided by law. In connection with the issuance of the Bonds, the legal services of Squire, Sanders & Dempsey L.L.P., as bond counsel with respect to the Bonds, are retained; in rendering those legal services, as an independent contractor and in an attorney-client relationship, that firm shall not exercise any administrative discretion on behalf of this City in the formulation of public policy, expenditure of public funds, enforcement of laws, rules and regulations of the State, any county, municipality or other political subdivision, or of this City, or the execution of public trusts. Section 10. Provisions for Tax Levy. There shall be levied on all the taxable property in the City, in addition t o all other taxes, a direct tax annually during the period the Bonds are outstanding in an amount sufficient to pay the debt charges o n the Bonds when due, which tax shall not be less than the interest and sinking fund tax required by Section 11 of Article XII of the Ohio Constitution. The tax shall be within the ten-mill limitation imposed by law, shall be and is ordered computed, certified, levied and extended upon the tax duplicate and collected by the same officers, in the same manner, and at the same time that taxes for general purposes for each of those years are certified, levied, extended and collected, and shall be placed before and in preference to all other items and for the full amount thereof. The proceeds of the tax levy shall be placed in the Bond Retirement Fund, which is irrevocably pledged for the payment of the debt charges on the Bonds when and as the same fall due. However, in each year the amount of such tax shall be reduced by the amount of lawfully available municipal income taxes appropriated and to be applied to the payment of the debt charges on the Bonds in compliance with the following covenant. To the extent necessary, the debt charges on the Bonds shall be paid from municipal income taxes lawfully available therefor under the Constitution and laws of the State of Ohio; and the City hereby covenants, subject and pursuant to such authority, including particularly Sections 133.05(B)(7) and 5705.51(A)(5) and (D) of the Revised Code, to appropriate annually from such municipal income taxes such amounts, and to continue to levy and collect such municipal income taxes i n such amounts, as are necessary to meet such annual debt charges. Nothing in this section in any way diminishes the irrevocable pledge of the full faith and credit and general property taxing power of the City to the prompt payment of the debt charges on the Bonds. Section 11. Certification and Delivery of Ordinance and Certificate of Award. The Clerk of Council is directed to deliver a certified copy of this Ordinance and, when available, the Certificate of Award, to the County Auditors of Franklin, Delaware, and Union Counties. Section 12. Satisfaction of Conditions for Bond Issuance. This Council determines that all acts and conditions necessary to be done or performed by the City or to have been met precedent to and in the issuing of the Bonds in order to make them legal, valid and binding general obligations of the City have been performed and have been met, or will at the time of delivery of the Bonds have been performed and have been met, in regular and due form as required by law; that the full faith and credit and taxing power (as described in Section 10 hereof) of the City are pledged for the timely payment of the debt charges on the Bonds; and that no statutory or constitutional limitation of indebtedness or taxation will have been exceeded in the issuance of the Bonds. Section 13. Compliance with Open Meeting Requirements. This Council finds and determines that all formal actions of this Council concerning and relating to the passage RECORD OF ORDINANCES Dayton Leal Blank, Inc. Fonn No. 30043 ordinance No. 24-04 (amended) passed Page 8 , 20 of this Ordinance were taken in an open meeting of this Council and that all deliberations of the Council and of any of its committees that resulted in those formal actions were in meetings open to the public in compliance with the law. Section 14. Effective Date. This Ordinance is declared to be an emergency measure necessary for the immediate preservation of the public peace, health, safety, and welfare of the City, and for the further reason that this Ordinance is required to be immediately effective in order to issue and sell the Bonds, which is necessary to enable the City to participate in the Program, and to take advantage of favorable interest rates; wherefore, this Ordinance shall be in full force and effect immediately upon its passage. Signed: Mayor -Presiding Officer Attest: Crl'~ ~d /rif'/~~ `v Clerk of Council Passed: April ~ , 2004 Effective: April 2004 I hereby certify that copies of this Ordinance/Resolution were posted in the City of Dublin in accordance with Section 731.25 of the Ohio Revised Code. D uty Clerk of Council, ublin, O io 6rc~. a~-o~t LOAN AGREEMENT DATED AS OF APRIL , 2004 BY AND BETWEEN CITY OF DUBLIN AND COLUMBUS REGIONAL AIRPORT AUTHORITY RELATIVE TO COLUMBUS REGIONAL AIRPORT AUTHORITY CAPITAL FUNDING REVENUE BONDS (THE OHIO MUNICIPAL BOND POOLED FINANCING PROGRAM), SENIOR SERIES 2004A LOAN AGREEMENT THIS LOAN AGREEMENT dated as of April 2004 (the "Loan Agreement") and entered into by and between COLUMBUS REGIONAL AIRPORT AUTHORITY (the "Issuer"), a port authority, a political subdivision and a body corporate and politic, duly created and validly existing under and by virtue of the laws of the State of Ohio (the "State") and the CITY OF DUBLIN, Ohio ("Borrower"), a municipal corporation and political subdivision duly organized and validly existing under the Constitution and laws of the State and its City Charter. Capitalized terms used in the following preambles shall have the meanings ascribed to them in Article L WITNESSETH: WHEREAS, the Issuer is authorized to engage in activities that enhance, foster, aid, provide or promote governmental operations; and WHEREAS, the Issuer is authorized to issue revenue bonds to pay costs of Projects within the jurisdiction of the Issuer; and WHEREAS, the Issuer is authorized to enter into agreements with any Ohio municipal corporation, located within or outside the jurisdiction of the Issuer, to exercise powers, perform functions, or render services, possessed or authorized to be exercised, performed or rendered by the Issuer or the Ohio municipal corporation; and WHEREAS, the Issuer has accordingly issued the Series 2004A Bonds and established the Program; and WHEREAS, the Borrower is authorized to enter into this Loan Agreement for the purposes set forth herein; and WHEREAS, the Issuer and the Borrower have determined that the provision of funds by the Issuer to the Borrower pursuant to the terms of this Loan Agreement and the Indenture will assist the Borrower in financing or refinancing the Project (or in reimbursing the Borrower for funds already spent in connection therewith), and will thereby enhance, foster, aid, provide or promote governmental operations and benefit the health, welfare and safety of the citizens of the Borrower and of the State. NOW, THEREFORE, for and in consideration of the premises and of the mutual covenants hereinafter contained, the parties hereby agree as follows: ARTICLE I DEFINITIONS Section 1.01. Definitions. Unless the context or use indicates another meaning or intent, the following words and terms as used in this Loan Agreement shall have the following meanings: "Accountant" or "Accountants" means the Auditor of State of Ohio, or an independent certified public accountant or a firm of independent certified public accountants which is, except in the case of the Borrower's Accountants, acceptable to the Trustee. "Act" means Section 4582.21 et. seq. of the Ohio Revised Code. "Additional Bonds" means Bonds which may be issued as Additional Bonds under the Indenture. "Additional Participant Cost Component" means a number of basis points per annum established by the Administrator from time to time, and approved by the Credit Facility Issuer, which will provide sufficient funds to pay certain costs of the Program, including but not limited to (i) the Fiduciary Fees, (ii) the Credit Fees, (iii) the Administrative Expenses, (iv) the- Sponsor Fees, (v) the Remarketing Fees and (vi) the additional amount, if any, calculated by the Administrator to be the Borrower's loan origination costs. The Additional Participant Cost Component (excluding Credit Fees) shall in no event exceed 150 basis points per annum. "Additional Payments" means the payments described in Section 5.02 hereof. "Administrator" means Seasongood & Mayer, LLC, as the initial administrator for the Program and until a successor Administrator shall be named in writing by the Issuer as Administrator and, thereafter, "Administrator" means the successor Administrator. "Advance" means a transfer of an amount from the Bond Proceeds Account held under the Indenture to the Borrower's Reservation Account. "Agreement" means a loan agreement between the Issuer and a Program Participant, under which a Loan is made to the Program Participant under the Program and, with respect to the Borrower, means this Loan Agreement. "Appropriated Interest" means the amount of interest on the Loan and the Borrower Note calculated at the lesser of (i) the rate of eight percent (8%) per annum, or (ii) such annual rate established by the Administrator on or before January 1 for the immediately succeeding Fiscal Year, which rate cannot exceed twenty-five percent (25%) per annum. "Authorized Officer" means, with respect to any act or execution of a document by or on behalf of the Borrower, any person or persons authorized pursuant to an ordinance of the Legislative Authority to perform such act or execute such document. -2- "BMA Index" means, as of any date, The Bond Market Association Municipal Swap Index published on that date (or, if not published on that date, on the most recent day prior thereto on which that index was published), or, if that index is no longer published, a successor or equivalent index selected by the Remarketing Agent (or if there is no Remarketing Agent, the Administrator). "Bondholder", "Holder", "Holder of Bonds", "Owner" or "Owner of Bonds" means (a) in the event that the book-entry system of evidence and transfer of ownership is employed pursuant to Section 2.12 of the Indenture, Cede & Co., as nominee for DTC, or its successors, and (b) in all other cases, the registered owner of any Bond. "Bond Counsel" means Squire, Sanders & Dempsey L.L.P., or any law firm subsequently designated by the Issuer as its bond counsel in connection with the Program having a national reputation in the field of municipal law whose opinions are generally accepted by purchasers of municipal bonds and which is acceptable to the Trustee. "Bond Proceeds Account" means the account with that name created within the Project Fund pursuant to Section 6.01 of the Indenture. "Bonds" means, collectively, the Series 2004A Bonds and any Additional Bonds. "Borrower" means the Borrower under this Loan Agreement. "Borrower Note" means the bond of the Borrower in substantially the form attached to this Loan Agreement as Exhibit "B", evidencing the Loan and providing for payment to the Issuer of the principal of and interest on the Loan, and any note or bond issued in substitution or exchange therefor. "Borrower's Proportionate Share" means, with respect to a particular cost, charge or amount, the product of (a) the fraction (i) the numerator of which is equal to the aggregate of the unpaid principal amount of the Borrower's Loan and (ii) the denominator of which is equal to the Outstanding principal amount of the Bonds minus the amount on deposit in the Reserve Fund multiplied by (b) that cost, charge or amount. "Business Day" means any day other than (i) a Saturday, Sunday or legal holiday, (ii) a day on which banking institutions in New York, New York or the cities in which the Trustee, the Paying Agent, the Tender Agent, the Remarketing Agent or the Credit Facility Provider have their respective principal offices are authorized to close or (iii) a day on which the New York Stock Exchange is closed. "Closing" means the funding of a Loan to the Borrower under this Loan Agreement and the Indenture by making an Advance to the Borrower. "Closing Date" means the date a Loan is made in connection with a Closing, and initially means April 2004. -3- "Collateral Document" means the Borrower Note and any letter of credit, escrow agreement, guaranty, security agreement, pledge agreement, title insurance policy or other document (other than the Indenture or this Loan Agreement), if any, securing the obligations of the Borrower hereunder or otherwise executed in connection with this Loan Agreement. If no Collateral Documents are required by the Credit Facility Provider, references herein to Collateral Documents will be disregarded and of no force and effect. "Computation Period" means, during any Other Rate Period, the period of time between 8 and 366 days, elected pursuant to Section 2.05 of the Indenture during which the interest rate will not be subject to adjustment. "Conversion" means the conversion from time to time of all or a portion of Other Rate Bonds to Weekly Rate Bonds, all or a portion of Weekly Rate Bonds to Other Rate Bonds, all or a portion of Other Rate Bonds or Weekly Rate Bonds to Fixed Rate Bonds or a change in the duration of the Computation Period for Other Rate Bonds, all in accordance with Section 2.05 of the Indenture. "Conversion Date" means the effective date of a Conversion pursuant to Section 2.05 of the Indenture. "Correlative Bonds" means Senior Bonds that have been converted to Fixed Rate Bonds in connection with certain Fixed Rate Loans. "Counterparty" means any party with whom the Trustee shall, from time to time, enter into an Interest Rate Exchange Agreement. "Credit Facility" means the facility providing security for the payment of the principal of and interest on the Senior Bonds when due and payment of the Purchase Price of the Senior Bonds if the Senior Bonds are not remarketed by the Remarketing Agent, which initially shall be the Letter of Credit dated the date of the initial issuance and delivery of the Series 2004A Bonds issued by the Credit Facility Provider, as extended or supplemented from time to time in accordance with the provisions thereof, and, upon substitution of an Alternate Credit Facility, shall be that Alternate Credit Facility. "Credit Facility Agreement" means the Letter of Credit and Reimbursement Agreement dated as of January 1, 2004, between the Issuer and the Credit Facility Provider, as amended or supplemented from time to time in accordance with the provisions thereof, provided that, if an Alternate Credit Facility is delivered to the Trustee pursuant to Section 6.14 of the Indenture, "Credit Facility Agreement" will mean the agreement between the Issuer and the provider of the Alternate Credit Facility pursuant to which that Alternate Credit Facility is provided, as amended or supplemented from time to time in accordance with the provisions thereof. "Credit Facility Provider" means, initially, U.S. Bank, National Association, a national banking association, created under the laws of the United States of America, and, upon acceptance by the Trustee of an Alternate Credit Facility, means the provider of that Alternate Credit Facility. -4- "Credit Fees" means all fees, expenses (including attorneys' fees and expenses) and other amounts which are payable to the Credit Facility Provider under the Credit Facility Agreement. "Disbursement" means any disbursement of funds to the Borrower by the Trustee from the Reservation Account as provided in Section 3.02 of this Loan Agreement. "Discretionary Fund" means the fund by that name created pursuant to Section 6.01 of the Indenture. "Event of Default" has the meaning ascribed to such term in Section 8.01 of this Loan Agreement. "Executive" means the Mayor of the Borrower and any successor to the duties of such officer. "Favorable Opinion of Bond Counsel" means, when used with respect to or in connection with any action, a written opinion of Bond Counsel to the effect that such action will not adversely affect the excludability of interest paid on the Bonds from gross income for federal income tax purposes. "Fiduciary Fees" means the contractual fees, charges and expenses (including reasonable attorney's fees) of the Trustee, the Paying Agent, the Tender Agent, the Registrar, the Rebate Analyst and the Remarketing Agent in connection with performing their duties under this Indenture or the Remarketing Agreement or enforcing any Loan Agreement prior to its assignment to the Credit Facility Provider, and any independent certified public accountants or independent financial consultants employed under Section 6.11 of the Indenture or employed to provide verification services. "Fiscal Officer" means the Borrower's Director of Finance and any successor to the duties of such officer. "Fiscal Year" means a period of time from and including January 1 to and including December 31, being the fiscal year of the Borrower for budgeting and appropriation purposes. "Fixed Rate Component" means, for each Loan Payment Period, (a) during any period when the Issuer is obligated to make fixed rate payments under an Interest Rate Exchange Agreement related to the Loan, the fixed rate per year equal to the fixed rate payable under that Interest Rate Exchange Agreement and (b) with respect to other fixed rate Loans, the fixed rate established for such Loan by the Administrator. "Hedge Payment" means, with respect to a notional amount as established pursuant to the Interest Rate Exchange Agreement (as reduced from time-to-time in accordance therewith), an amount payable to the Counterparty equal to the amount of interest accruing on such notional amount at a fixed interest rate computed in accordance with an Interest Rate Exchange Agreement, but excluding any Termination Payments or other amounts not yet due under the Interest Rate Exchange Agreement. -5- "Hedge Payment Date" means the date upon which each Hedge Payment is due to a Counterparty. "Income Tax Revenues" means all amounts collected by the Borrower from its levy of a tax on income (currently at the rate of 2 pursuant to Chapter 718 of the Ohio Revised Code and Chapter 35 of the Borrower's City Code. "Interest Payment Date" means (A) with respect to Series 2004A Bonds, (i) in the case of Weekly Rate Bonds, the first Business Day of each month, commencing March 1, 2004, and any Conversion Date, (ii) in the case of Other Rate Bonds, the last day of each Computation Period and any Conversion Date, and (iii) in the case of Fixed Rate Bonds each January 1 and July 1, and (B) with respect to any Additional Bonds, the dates set forth in the Supplemental Indenture executed in connection with the issuance of such Additional Bonds. "Interest Rate Exchange Agreement" means an agreement to provide interest rate exchanges between the Trustee and a Counterparty that provides for the payment to the Trustee of equivalent amounts of interest due on all or a portion of the Bonds; provided, however, that no such Interest Rate Exchange Agreement shall be entered into without first obtaining the written approval of the Administrator and the Credit Facility Provider. "Late Payment Rate" means the "Default Rate" as defined in the Credit Facility Agreement. "Lawfully Available Funds" means, collectively, the funds, income, revenue, fees, receipts or charges of any nature from any source whatsoever on deposit with or accruing from time to time to the Borrower; provided that no such funds, income, revenue, fees, receipts or charges shall be so included in this definition which have been or are legally dedicated and required for purposes inconsistent with the Project by the electorate, by the terms of specific grants, by the terms of particular obligations issued or by operation of law. "Legislative Authority" means the Council of the Borrower. "Loan" means the loan to the Borrower of a portion of the proceeds of the Series 2004A Bonds, in accordance with the terms of this Loan Agreement. "Loan Agreement" means this Loan Agreement including the Exhibits attached hereto and any amendments hereto. "Loan Payment Date" means (i) with respect to a fixed rate Loan for any period when the Issuer is obligated to make fixed rate payments under an Interest Rate Exchange Agreement related to the Loan, the third Business Day prior to each Hedge Payment Date, (ii) with respect to any other fixed rate Loan, the third (3`d) Business Day prior to each January 1 and July 1 and (iii) with respect to any variable rate Loan, the third (3`d) Business Day prior to the first Business Day of each month. -6- "Loan Payment Period" means the period of time commencing the day immediately following an Interest Payment Date and ending on the following Interest Payment Date "Loan Payments" means the payments of principal of and interest on the Loan and any other amounts payable by the Borrower pursuant to the provisions of this Loan Agreement. "Loan Term" means the term provided for in Article IV of this Loan Agreement. "Moody's" means Moody's Investors Service, Inc., a corporation organized and existing under the laws of the State of Delaware, its successors and their assigns, and, if such corporation for any reason no longer performs the functions of a securities rating agency, "Moody's" will be deemed to refer to any other nationally recognized rating agency designated by the Administrator with the approval of the Credit Facility Provider and the Remarketing Agent. "Optional Prepayment Price" means the amount determined by the Administrator and provided to the Trustee and the Credit Facility Provider which the Borrower may, in its discretion, pay under this Loan Agreement in order to prepay all or a portion of its Loan, which amount shall be equal to the sum of (i) the unpaid principal amount of the portion of the Loan to be prepaid; plus (ii) the amount of any due or past due Loan Payments together with interest on past due Loan Payments to the date of prepayment at the Late Payment Rate; plus (iii) the unpaid accrued interest on the outstanding principal amount of the Loan to be prepaid to the date Bonds can be called for redemption in connection with the prepayment; plus (iv) if the interest rate on the Loan is a fixed rate and (A) if Correlative Bonds have been established with respect to the Loan Agreement, an amount of cash or non-callable Government Obligations that, together with the interest income thereon without reinvestment (as certified by the independent certified public accountant retained for the Program), will be sufficient to pay interest on the Loan, that would have been due on the Loan Agreement, if the Loan had not been prepaid, between the date of the prepayment and the date the prepayment will be used to redeem Bonds, or (B) if Correlative Bonds have not been established with respect to the Loan Agreement but rather the Trustee has entered into an Interest Rate Exchange Agreement with respect to a principal amount of Other Rate Bonds or Weekly Rate Bonds corresponding to the principal amount (or a portion of the principal amount) of a Loan, plus any Termination Payment payable by the Trustee (or minus any Termination Payment received by the Trustee) under that Interest Rate Exchange Agreement as a result of termination of that Interest Rate Exchange Agreement on account of the payment of the Optional Prepayment Price and the redemption of Other Rate Bonds or Weekly Rate Bonds in connection therewith; plus (v) Additional Payments to the extent known or determinable at the time the prepayment is made through the date the prepayment will be used to redeem Bonds; plus (vi) an amount equal to the premium, if any, payable on any Bonds to be redeemed on account of the payment of the Optional Prepayment Price (which amount must constitute Available Moneys on the date of redemption of those Bonds). The amount required to be paid pursuant to clause (vi) above may be deposited with the Trustee prior to payment of other amounts constituting "Optional Prepayment Price." The Loan may not be prepaid if for any reason the Optional Prepayment Price cannot be calculated by the Administrator. "Ordinance" means that certain ordinance duly passed by the Legislative Authority authorizing this Loan Agreement and the Borrower Note. -7- "Other Rate Bonds" means Senior Bonds having a variable Interest Rate determined in accordance with Section 2.02(c)(i) of the Indenture. "Other Rate Period" means the period beginning on, and including, any Business Day and extending to, but not including, the next succeeding Business Day. "Participant Rate" means, at any point in time, the applicable rate of interest on the Borrower's Borrower Note. The Participant Rate for each Loan Payment Period shall be (a) with respect to that portion of any Loan bearing interest at a fixed rate, the sum of the Fixed Rate Component and the Additional Participant Cost Component, and (b) with respect to the balance of any Loan, the sum of the Variable Cost Component and the Additional Participant Cost Component; provided, however, that upon the conditions specified in this Loan Agreement following the occurrence of an Event of Default referred to in Section 8.01(a) hereof, the interest rate thereon shall be increased to a rate per year equal to the Late Payment Rate; and, provided further, however, in no event shall the Participant Rate or the Late Payment Rate exceed the lesser of (i) twenty-five percent (25%) per year and (ii) the maximum rate per year allowed by law. "Person" means (a) any individual, (b) any corporation, partnership, limited liability company, joint venture, association, joint-stock company, business trust or unincorporated organization or grouping of any such entities, in each case formed or organized under the laws of the United States of America, any state thereof or the District of Columbia or (c) the United States of America or any state thereof, or any political subdivision of any thereof, or any agency, authority or other instrumentality of any of the foregoing. "Program" means the transactions contemplated by the Indenture and Agreements for the issuance of the Bonds and making the proceeds of the Bonds available to Borrowers to pay Costs of Projects. "Program Participant" means each entity entering into an Agreement and, with respect to this Loan Agreement, means the Borrower. "Program Sponsor" means that Person, if any, to whom the Administrator has assigned duties of program sponsor in accordance with the terms of the Administration Agreement, and such Person's successors and assigns. "Project" means the project described in Exhibit A hereto. "Rebate Analyst" means the law firm or accounting firm specializing in federal arbitrage "rebate" matters under Section 148(f) of the Code, designated as such by the Issuer and satisfactory to the Administrator and the Trustee. "Rebate Deficiency" means the excess of the Rebate Amount determined in accordance with the Indenture over the amount previously transferred to the Rebate Fund. -8- "Rebate Fund" means the fund with that name created pursuant to Section 6.01 of the Indenture. "Redemption Fund" means the fund with that name created pursuant to Section 6.01 of the Indenture. "Remarketing Agent" means Seasongood & Mayer, LLC or its successors thereto appointed in accordance with Section 10.21 of the Indenture. "Remarketing Fee" means any fees and expenses due to the Remarketing Agent for its services as Remarketing Agent under the Indenture. "Request for Disbursement" means a written request by an Authorized Officer of the Borrower for a Disbursement under Section 3.02 of this Loan Agreement in the form of Exhibit "C" hereto, stating the amount of the Disbursement requested, and identifying the Project or otherwise describing the intended use of the moneys to be disbursed. "Reservation Account" means the Borrower's Reservation Account held by the Trustee under the Indenture. "Reserve Fund" means the fund by that name created pursuant to Section 6.01 of the Indenture. "Senior Bonds" means the Series 2004A Bonds and any Additional Bonds issued on a parity therewith and secured with a Credit Facility. "Series 2004A Bonds" means the Issuer's $26,660,000 Capital Funding Revenue Bonds (The Ohio Municipal Bond Pooled Financing Program), Senior Series 2004A, issued pursuant to the Indenture. "Supplemental Indenture" means any supplemental indenture of trust amending or supplementing the Indenture. "Tax Compliance Certificate" means the Tax Compliance Certificate of the Issuer dated January 29, 2004 executed in connection with the issuance of the Series 2004A Bonds, and all attachments and exhibits thereto, as the same may be amended from time-to-time in accordance with its terms. "Termination Payment" means an amount computed by a Counterparty, and confirmed by the Administrator, as the amount which would be payable by the Trustee or a Counterparty upon termination or partial termination of an Interest Rate Exchange Agreement at the request of or as a result of action by the Borrower. "Trustee" means National City Bank, having its principal corporate trust office located in Cleveland, Ohio, or any permitted assigns or successors thereto as Trustee under the Indenture. -9- "Underwriter" means Seasongood & Mayer, LLC, as original purchaser of the Series 2004A Bonds. "Variable Rate Component" means, for any Loan Payment Period, the Weekly Rate or Other Rate determined as provided in the Indenture. "Weekly Rate Bonds" means Senior Bonds having a variable Interest Rate determined weekly in accordance with Section 2.02(c)(ii) of the Indenture. "Weekly Rate Period" means the period beginning on, and including, any Thursday (or, if not a Business Day, on the next succeeding Business Day) and ending on, and including, the then next Wednesday (or the day immediately preceding the first day of the next Weekly Rate Period for Weekly Rate Bonds); provided that (i) in the case of a Conversion to Weekly Rate Bonds, the initial Weekly Rate Period shall begin on the Conversion Date and (ii) in the case of a Conversion of Weekly Rate Bonds to Other Rate Bonds or Fixed Rate Bonds, the last Weekly Rate Period shall end on, and include, the day immediately preceding the Conversion Date. ARTICLE II OBLIGATIONS SUBJECT TO APPROPRIATION; REPRESENTATIONS AND COVENANTS OF BORROWER Section 2.01 Obligations Subject to Appropriation. Except for its obligations to pay the principal of and any premium and Appropriated Interest on the Loan and Borrower Note, all of the Borrower's obligations in this Loan Agreement are subject to annual appropriation by the Legislative Authority of Lawfully Available Funds and subject to certification by the Fiscal Officer of the availability, free from other encumbrances, and encumbrance of Lawfully Available Funds for the purpose. Section 2.02. Representations. The Borrower represents for the benefit of the Issuer as follows: (a) Organization and Authority. (1) The Borrower is a municipal corporation and political subdivision, duly created and validly existing under the Constitution and laws of the State and the Borrower's Charter. (2) The Borrower has full legal right and the authority and has taken all action and obtained all necessary approvals required as of the date hereof to enter into this Loan Agreement, to pass the Ordinance and issue the Borrower Note, to undertake and complete the Project, to finance or refinance the Project in the manner contemplated herein, to pledge the sources hereinafter mentioned to the repayment of the Loan and the Borrower Note and to carry out and consummate all transactions contemplated by this Loan Agreement. -10- (3) The Ordinance approving this Loan Agreement and authorizing its execution and delivery on behalf of the Borrower, and the issuance, sale and delivery of the Borrower Note has been duly and lawfully passed by the Legislative Authority at a meeting or meetings duly called and held at which quorums were present and acting throughout and such meeting or meetings were duly called pursuant to necessary public notice and held in accordance with the open meetings law and any other applicable laws. (4) This Loan Agreement and the Borrower Note have been duly authorized, executed and delivered by an Authorized Officer or Officers of the Borrower. The Borrower Note is a valid and legal general obligation of the Borrower, and the principal of and interest on the Borrower Note, unless paid from other sources and subject to bankruptcy laws and other laws affecting creditors' rights and to the exercise of judicial discretion, are to be paid from the proceeds of the levy of ad valorem taxes within the ten-mill limitation imposed by law. This Loan Agreement, if duly authorized, executed and delivered by the Issuer, is a valid and binding agreement of the Borrower enforceable against the Borrower in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and other laws in effect from time to time affecting creditors' rights, and to the exercise of judicial discretion. (5) No applicable statutory or constitutional debt limitations will be exceeded with the issuance of the Borrower Note. (b) Full Disclosure. So far as the Borrower can now foresee, there is no fact known to the Borrower that the Borrower has not specifically disclosed in writing to the Issuer or the Administrator that materially and adversely affects or, except for pending or proposed legislation or regulations that are a matter of general public information affecting Persons generally, that materially and adversely affect the properties, activities, prospects or condition (financial or otherwise) of the Borrower or the ability of the Borrower to perform its obligations under this Loan Agreement and the Borrower Note. The financial statements of the Borrower and any other written statement furnished by the Borrower to the Administrator fairly present the financial condition of the Borrower, its ability to own and operate its property in the manner such property is currently operated or its ability to make the payments under this Loan Agreement and the Borrower Note when and as the same become due and payable. (c) Pending Liti ag tion. There is no litigation or legal or governmental action, inquiry, investigation or proceedings pending, or to the knowledge of the Borrower threatened, against or affecting the Borrower, except as specifically described in writing to the Issuer or the Administrator, in any court or before any governmental authority or arbitration board or tribunal in which the Borrower is a party that, if adversely determined, would materially and adversely affect the properties, prospects or condition (financial or otherwise) of the Borrower, or the corporate existence or powers or ability of the Borrower to enter into and perform its obligations under this Loan Agreement and the Borrower Note. (d) No Conflict With Laws and Agreements. The execution and delivery of this Loan Agreement and the Borrower Note, the performance by the Borrower of its obligations under this -11- Loan Agreement and the Borrower Note, the consummation of the transactions provided for in this Loan Agreement and the Borrower Note, compliance by the Borrower with the provisions of this Loan Agreement and the Borrower Note and the undertaking and completion of the Borrower's Project do not and will not conflict with or result in any material breach of any of the terms, conditions or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon, any property or assets of the Borrower pursuant to any indenture, loan agreement or other agreement or instrument (other than this Loan Agreement) to which the Borrower is a party or by which the Borrower, its properties or operations may be bound or with the giving of notice or the passage of time or both would so constitute a breach or default or so result in the creation or imposition of any lien, charge or encumbrance, which breach, default, lien, charge or encumbrance could materially and adversely affect the validity or the enforceability of the Borrower Note or this Loan Agreement or the Borrower's ability to perform fully its obligations under the Borrower Note or this Loan Agreement; nor will such action result in any violation of the provisions of or any laws, ordinances, governmental rules or regulations or court or other governmental orders to which the Borrower, its properties or operations are subject. (e) No Defaults. No event has occurred and no condition exists that constitutes an Event of Default or which, upon the execution and delivery of this Loan Agreement and the Borrower Note and/or the passage of time or giving of notice, or both, would constitute an Event of Default. Except for any violations that (1) heretofore have been specifically disclosed in writing to, and have been in writing specifically consented to by, the Issuer (or the Administrator on its behalf) and (2) do not, and shall not, have any material adverse effect on the transactions herein contemplated and the compliance by the Borrower with the terms hereof or the Borrower Note, the Borrower is not in violation in any material respect and has not received notice of any claimed material violation, of any terms of any agreement, or other instrument to which it is a party or by which it, its properties or operations may be bound. (f) Government Consent. The Borrower has obtained, or will obtain prior to any Disbursement of its Advance, all approvals required by any governmental body or officer for the passage of the Ordinance, the issuance of the Borrower Note and the making and performance by the Borrower of its obligations under this Loan Agreement. No consent, approval or authorization of, or filing, registration or qualification with, any governmental agency that has not been obtained is required on the part of the Borrower as a condition to the issuance of the Borrower Note, the execution and delivery of this Loan Agreement, the passage of the Ordinance, or the consummation of any transaction herein contemplated or the performance of the Borrower's obligations under this Loan Agreement or the Borrower Note. (g) Compliance With Law. The Borrower is in compliance with all laws, ordinances, governmental rules and regulations to which it is subject, the failure to comply with which would materially adversely affect the ability of the Borrower to conduct its activities or the condition (financial or otherwise) of the Borrower. (h) Use of Proceeds. Except to the extent that the Borrower shall deliver to the Trustee a Favorable Opinion of Bond Counsel addressed to the Issuer, the Trustee and the Administrator, with respect to the failure of the Borrower to comply with any of the tax -12- covenants on its part contained in Article II hereof, the Borrower represents and agrees that it will apply the proceeds of the Loan solely for the financing or refinancing, or to reimburse itself for, the Costs of the Project, all as provided in the Ordinance and this Loan Agreement. (i) No Contrary Action. The Borrower shall take no action which would cause the representations contained herein not to be true and correct on a continuing basis. (j) Income Tax Revenues. The Income Tax Revenues collected by the Borrower in the immediately preceding Fiscal Year and lawfully available for payment of the principal of and premium and interest (including the Additional Participant Cost Component and the Late Payment Rate) on the Loan and the Borrower Note were not less than 200% of the sum of the maximum amount of principal of and Appropriated Interest on the Loan and Borrower Note and all payments or other obligations due in any Fiscal Year to which the Income Tax Revenues have been pledged. Section 2.03. Covenants of Borrower. The Borrower covenants with the Issuer and the Trustee as follows: (a) Performance of this Loan Agreement. The Borrower agrees (1) to cooperate with the Issuer and the Administrator in the performance of the respective obligations of the Borrower and the Issuer under this Loan Agreement; and (2) to use its best efforts to the extent permitted by law to collect Income Tax Revenues and Lawfully Available Funds sufficient to enable the Borrower to pay when due the amounts payable under, and sufficient to fulfill the terms and provisions of this Loan Agreement. (b) Inspections. The Borrower shall permit the Issuer, the Trustee, the Credit Facility Provider and the Administrator and any party designated by any of such parties to inspect and make copies of any accounts, books and records, including (without limitation) its records regarding receipts, disbursements, contracts, investments and any other matters relating thereto (other than documents the confidentiality of which is protected by law or professional or public officials' codes of ethics) and to its financial standing, and shall supply such reports and information as the Issuer, the Trustee or the Administrator may reasonably require in connection therewith. (c) Project. Moneys which will be made available from this Loan Agreement and other sources will be sufficient, together with other amounts provided by the Borrower for that purpose, to complete and pay for the Project. (d) Delivery of Information. The Borrower will deliver to the Trustee, the Credit Facility Provider and the Administrator as soon as available and in any event within thirty (30) days of their receipt, its audited general purpose financial statements as of the end of each Fiscal Year, all reported on by Accountants, whose report shall state that such financial statements present fairly, in all materials respects, the financial position as of the end of such Fiscal Year and the results of operations for such Fiscal Year. -13- (e) Information. The Borrower's Fiscal Officer or Executive shall, at the reasonable request of the Administrator, discuss the Borrower's financial matters with the Administrator and provide the Administrator with copies of any documents furnished by the Borrower to the Issuer or any credit rating service. (f) Indemnity. If and to the extent permitted by law, the Borrower will (i) pay and will protect, indemnify and save the Issuer, the Credit Facility Provider and the Trustee, each director, member, officer, commissioner, employee, representative, agent and counsel of the Issuer, the Credit Facility Provider and the Trustee (the "Indemnitees"), and each other Person, if any, who has the power, directly or indirectly, to direct or cause the direction of the management and policies of the Issuer, the Credit Facility Provider and the Trustee, harmless from and against, any and all liabilities, losses, fines, penalties, damages, costs and expenses (including reasonable attorneys' fees and the allocated costs and expenses of in-house counsel), suits, causes of action, claims, demands and judgments of whatsoever kind and nature ("Losses") (including those in any manner directly or indirectly arising or resulting from, out of or in connection with any injury to, or death of, any person or any damage to property resulting from the use or operation of the Project) in any manner directly or indirectly (in any case, whether or not by way of the Borrower, its successors and assigns, or directly or indirectly through the agents, contractors, employees, licenses or otherwise of the Borrower or its successor and assigns) arising or resulting from, out of or in connection with the Project or the breach or violation of any agreement, covenant representation or warranty of the Borrower set forth in this Loan Agreement or the Borrower Note or any document delivered pursuant hereto or thereto or in connection herewith or therewith, and (ii) will pay, protect, indemnify and save the Indemnitees harmless from all Losses incurred or as a result of the Indemnitees, or any of them, following any instructions or directions upon which such Indemnitee is authorized to rely on pursuant to this Loan Agreement, the Indenture or any other document relating to the Bonds. Any Indemnitee shall promptly notify the Borrower in writing of any claim or action brought against it, in respect of which indemnity may be sought against the Borrower, setting forth, to the extent reasonably practicable under the circumstances, the particulars of such claim or action, and, if and to the extent permitted by law, the Borrower will promptly assume the defense thereof, including the employment of competent counsel satisfactory to such Indemnitee and the payment of all expenses. Any Indemnitee may employ separate counsel with respect to any such claim or action and participate in the defense thereof, but, except as provided herein, the fees and expenses of such separate counsel shall not be payable by the Borrower (A)(i) unless such employment has been specifically authorized by the Borrower or (ii) unless such employment was occasioned by conflicts of interest between and among Indemnity and/or the Borrower and (B) except to the extent permitted by law. If the Borrower shall fail to assume the defense of any action as required hereunder, or, within a reasonable time after commencement of such action, to retain counsel satisfactory to the Indemnitee, the fees and expenses of counsel to such Indemnitees hereunder shall be paid by the Borrower. -14- The provisions of this paragraph (f) shall survive the termination of this Loan Agreement and the Indenture, the payment in full of the Borrower Note and resignation or removal of an Indemnitee. (g) Location of Project. The Project will be used within or located in the jurisdiction of the Borrower. (h) Further Assurance. The Borrower shall execute and deliver to the Issuer, Trustee, or the Administrator all such documents and instruments and do all such other acts and things as may be necessary or reasonably required by the Issuer, the Trustee, and the Administrator to enable the Issuer to exercise and enforce its rights under this Loan Agreement and the Borrower Note and to realize thereon, and the Borrower shall record and file and rerecord and refile all such documents and instruments, at such time or times, in such manner and at such place or places, all as may be necessary or required by the Issuer, the Trustee, and the Administrator to validate, preserve and protect the position of the Issuer under this Loan Agreement. (i) Kee~n~ of Records and Books of Account. The Borrower shall keep or cause to be kept proper records and books of account in which correct and complete entries will be made in accordance with generally accepted accounting principles as recommended by the Governmental Accounting Standards Board, consistently applied (except for changes concurred in by the Borrower's Accountants) reflecting all of its financial transactions. (j) Compliance With Laws, Etc. The Borrower shall comply with the requirements of all applicable laws, the terms of all grants, rules, regulations and orders of any governmental agency, noncompliance with which would, singly or in the aggregate, materially and adversely affect its operations, properties, revenues, prospects or credit, or the enforceability of this Loan Agreement or the Borrower Note unless the same shall be contested by it in good faith and by appropriate proceedings which shall operate to stay the enforcement thereof. (k) Information Reports. The Borrower covenants to provide the Issuer with all material and information relating to the Borrower, the Project and the Loan necessary to enable the Issuer to file all reports required under Section 103 of the Code (including the applicable Forms 8038-G and 8038-T) to assure that interest paid by the Issuer on the Bonds shall be exempt from all federal income taxation. (1) Continuing Disclosure. The Borrower hereby covenants and agrees that upon receipt of notification from the Administrator that the Borrower constitutes an "Obligated Person" within the meaning of Securities and Exchange Commission Rule 15c2-12 (the "Rule") the Borrower shall enter into a continuing disclosure agreement (the "Disclosure Agreement") with the Trustee, as disclosure agent (the "Disclosure Agreement The Disclosure Agreement shall require the Borrower to provide "Annual Financial Information", as such term is defined in the Rule, to the Disclosure Agent at the times and in the manner as set forth therein. (m) Covenants Regarding Income Tax. The Borrower hereby covenants, pursuant to the authorization of Sections 133.05(B)(7) and 5705.51(A)(5) and (D) of the Ohio Revised Code -15- and to the extent permitted by law, and so long as this Loan Agreement is in effect that: (i) the Borrower will appropriate annually from proceeds of its municipal income tax such amount as is necessary to pay the amounts due under this Loan Agreement from time to time to the extent such proceeds are lawfully available therefor; (ii) the Borrower will not reduce the rate of its municipal income tax; and (iii) the Borrower will use its best efforts to collect its municipal income tax when due. If and to the extent permitted by law, such proceeds are hereby pledged to the timely payment of the amounts due under this Loan Agreement from time to time and the Issuer is hereby granted a first lien upon such proceeds. There is no pledge, lien or encumbrance upon such proceeds prior to the pledge hereby made and the lien hereby granted. (n) Sufficiency of Income Tax Revenues Pledge. The Borrower shall not otherwise pledge the Income Tax Revenues for any other purpose unless the Income Tax Revenues collected by the Borrower in the immediately preceding Fiscal Year and lawfully available for payment of the principal of and premium and interest (including the Additional Participant Cost Component and Late Payment Rate) on the Loan and the Borrower Note will be not less than 200% of the sum of the maximum amount of principal and Appropriated Interest on the Loan and Borrower Note and all payments or other obligations due in any Fiscal Year to which Income Tax Revenues have been, or will be, pledged. Section 2.04. Tax Covenants and Representations of the Borrower. (a) The Borrower represents and warrants that it is a "governmental person" (as defined in Section 1.141-1(b) of the Treasury Regulations) (a "Governmental Unit") and it owns and operates, or will own and operate, the Project. (b) The Borrower covenants and agrees that it will not take any action or omit to take any action, which action or omission will adversely affect the exclusion from gross income of the interest on the Bonds for federal income tax purposes or cause the interest on the Bonds, or any portion thereof, to become an item of tax preference for purposes of the alternative minimum tax imposed on individuals and corporations under the Code, and in the event of such action or omission it will, promptly upon having such brought to its attention, take such reasonable actions based upon a Favorable Opinion of Bond Counsel, and in all cases at the sole expense of the Borrower, as may rescind or otherwise negate such action or omission. The Borrower will not, directly or indirectly, use or permit the use of any proceeds of the Bonds or any other funds of the Borrower, or take or omit to take any action, that would cause the Bonds to be or become "arbitrage bonds" within the meaning of Section 148(a) of the Code or to fail to meet any other applicable requirement of Sections 141, 148, 149 and 150 of the Code or cause the interest on the Bonds, or any portion thereof, to become an item of tax preference for purposes of the alternative minimum tax imposed on individuals and corporations under the Code. To that end, the Borrower will comply with all requirements of Sections 141, 148, 149 and 150 of the Code to the extent applicable to the Bonds. In the event that at any time the Borrower is of the opinion that, for purposes of this Section 2.04, it is necessary to restrict or limit the yield on the investment of any moneys held by the Trustee or otherwise, the Borrower shall so instruct the Trustee in writing. -16- The Issuer and the Borrower hereby covenant and agree that they shall not enter into any arrangement, formal or informal, pursuant to which the Borrower (or any "related party", as defined in Treasury Regulations § 1.150-1(b)) shall purchase the Bonds. This covenant shall not prevent the Borrower from purchasing Bonds in the open market for the purpose of tendering them to the Trustee for purchase and retirement. (c) Not more than 5% of the net proceeds of the Loan will be used for a Private Business Use and not more than 5% of the Debt Service on the Loan will be paid from or secured by payments with respect to property, or secured by property, used for a Private Business Use. The term "Private Business Use" means use directly or indirectly in a trade or business carried on by a Person or in any activity carried on by a Person other than a natural person, excluding, however, use by a state or local governmental unit and use as a member of the general public. (d) The Borrower shall not use net proceeds of the Loan to make or finance loans to any Person other than a Governmental Unit. (e) Notwithstanding any provision of this Section 2.04 or Section 2.05, if the Borrower provides, at the Borrower's expense, to the Issuer, the Administrator and the Trustee a Favorable Opinion of Bond Counsel to the effect that any action required under this Section is no longer required, or to the effect that some further action is required, to maintain the exclusion from gross income of interest on the Bonds pursuant to Section 103(a) of the Code, the Borrower, the Issuer, the Administrator and the Trustee may rely conclusively on such opinion in complying with the provisions of this Section 2.04 and Section 2.05, and the covenants under such sections shall be deemed to be modified to that extent. (f) All covenants and obligations of the Borrower contained in this Section 2.04 and in Section 2.05 shall remain in effect and be binding upon the Borrower until all of the Bonds have been paid, notwithstanding any earlier termination of the Loan Agreement or any provision for payment of principal and premium, if any, and interest on the outstanding Loan and Additional Payments and release and discharge of the Indenture. Section 2.05. Additional Tax Certifications. Capitalized terms in this Section 2.05 not defined in this Loan Agreement shall have the meanings given such terms in Attachment A. The Borrower certifies, represents and covenants as follows with respect to the Bonds: (a) Costs of the Project. The Borrower reasonably expects to use all of the funds deposited in the Borrower's Reservation Account from proceeds of the Loan to pay costs of the Project within 3 years from Issuance Date, which 3-year period is the Temporary Period for such amounts because the following three tests are reasonably expected to be satisfied: (1) At least 85% of such amounts will be allocated to expenditures on the Project by the end of the Temporary Period; -17- (2) Within 6 months of the date hereof, a substantial binding obligation to a third party to expend at least 5% of such amounts on the Project will be incurred; and (3) Completion of the Project and allocation of such amounts to expenditures will proceed with due diligence. Any funds deposited in the Borrower's Reservation Account from proceeds of the Loan that remain unspent on the third anniversary of the Issuance Date, which is the expiration date of the Temporary Period for such funds, shall not be invested in Higher Yielding Investments with respect to the Series 2004A Bonds after that date except as part of the Minor Portion. In complying with the foregoing sentence, the Borrower may take into account "yield reduction payments" (within the meaning of Regulations § 1.148-5(c)) paid to the United States. (b) Investment Proceeds. Any Investment Proceeds expected to be used to pay Debt Service on the Series 2004A Bonds allocable to the Loan will not be used to any extent to acquire Higher Yielding Investments with respect to the Series 2004A Bonds. Any other Investment Proceeds will be used to pay costs of the Project, and such Investment Proceeds may be invested in Higher Yielding Investments during the Temporary Period identified in Section 2.05(a) hereof or, if longer, one year from the date of receipt, such period being the Temporary Period for such Proceeds. (c) Bond Fund. Amounts deposited by the Borrower from time to time in the Bond Fund, the Prepayment Fund and the Redemption Fund, each of which is a Bona Fide Debt Service Fund, are reasonably expected to be used to pay Loan Payments and, in turn, Debt Service on the Series 2004A Bonds (or to reimburse the Credit Facility provider in respect of such payments of Debt Service on the Series 2004A Bonds), within 13 months after the amounts are so deposited, such period being the Temporary Period for such amounts held by the Trustee under the Indenture. (d) No Other R~lacement Fund or Assured Available Funds. The Borrower has not established and does not expect to establish, have established on its behalf or use any sinking fund, debt service fund, redemption fund, reserve or replacement fund, or similar fund, or any other fund to pay the Loan Payments and, in turn, Debt Service on the Series 2004A Bonds, other than the Bond Fund, Redemption Fund, Prepayment Fund and Reserve Fund (which Funds have been established by the Trustee, at the direction of the Issuer, under the Indenture). Except as set forth in the next sentence and except for money referred to in (c) above, no other money or Investment Property (including, without limitation, fixed income, equity and other investments) is or will be pledged as collateral or used for the payment of Loan Payments hereunder (or for the reimbursement of any others who may provide money to pay Loan Payments hereunder), or is or will be restricted, dedicated, encumbered, or set aside in any way as to afford the Holders of the Series 2004A Bonds reasonable assurance of the availability of such money or Investment Property to pay debt service on the Series 2004A Bonds. (e) The Borrower covenants and agrees that the weighted average maturity of the Loan does not exceed 120% of the weighted average reasonably expected remaining economic -18- life of the property financed with proceeds of the Loan, determined in accordance with Section 147(b) of the Code. (f) No Overissuance. The proceeds of the Loan are not reasonably expected to exceed the amount needed for the costs of the Project. (g) Other Uses of Proceeds Ne ag ted. Except as stated otherwise in this Loan Agreement, none of the proceeds of the Loan will be used: (1) to pay principal of or interest on, refund, renew, roll over, retire, or replace any other obligations issued by or on behalf of the Issuer or any other Governmental Unit, (2) to replace any Proceeds of another issue of bonds that were not expended on the project for which such other issue was issued, (3) to replace any money that was or will be used directly or indirectly to acquire Higher Yielding Investments, (4) to make a loan to any other person or Governmental Unit, (5) to pay any Working Capital Expenditure other than expenditures identified in Regulations §1.148-6(d)(3)(ii)(A) and (B) (i.e., Issuance Costs, Qualified Administrative Costs, reasonable charges for a Qualified Guarantee or for a Qualified Hedge, interest on the Loan for a period commencing on the Issuance Date and ending on the date that is the later of three years from the Issuance Date or one year after the date on which the Project financed or refinanced by the Loan was or will be placed in service, payments of the Rebate Amount, and costs, other than those already described, that do not exceed 5% of the Sale Proceeds of the Loan and that are directly related to Capital Expenditures financed or deemed financed by the Loan, principal or interest on an issue paid from unexpected excess Sale Proceeds or Investment Proceeds, and principal or interest on an issue paid from investment earnings on a reserve or replacement fund that are deposited in a Bona Fide Debt Service Fund), or (6) to reimburse any expenditures made prior to the Issuance Date except those that qualify as a Reimbursement of Prior Capital Expenditures, based upon a Favorable Opinion of Bond Counsel, at the expense of the Borrower, delivered to the Trustee and the Administrator. No portion of the Loan is being issued solely for the purpose of investing proceeds of the Loan in Higher Yielding Investments. (h) Disposition of Bond-Financed Property' Purchase of Series 2004A Bonds. The Borrower does not intend to sell or otherwise dispose of the Project or any portion thereof during the term of the Series 2004A Bonds except for dispositions of property in the normal course at the end of such property's useful life to the Borrower. The Borrower does not intend to purchase, directly or indirectly, any portion of the Series 2004A Bonds in a transaction or series of transactions that would reduce the Yield on the Loan. -19- (i) No Avoidance of Rebate Amount. The Borrower will not use any Rebate Amounts that are required to be paid to the United States to make any payment to a party other than the United States through a transaction or a series of transactions that reduces the amount earned on any Investment Property or that results in a smaller profit or a larger loss on any Investment Property than would have resulted in an arm's length transaction in which the Yield on the Bonds was not relevant to either party to the transaction. The Borrower agrees to pay to the Trustee any Rebate Deficiency pursuant to Section 5.02(a) hereof. (j) Issue Not Federally Guaranteed. The Loan is not Federally Guaranteed. (k) Not Hedge Bonds. At least 85% of the Spendable Proceeds of the Advances (other than such Spendable Proceeds to be used to pay Debt Service on another issue) will be used to carry out the governmental purposes of this Loan Agreement within three years from the Issuance Date of the Series 2004A Bonds. Not more than 50%, if any, of the Proceeds of the Advances (other than such Proceeds to be used to pay Debt Service on another issue) will be invested in Nonpurpose Investments having a substantially guaranteed Yield for four years or more, including but not limited to any investment contract or fixed Yield investment having a maturity of four years or more. The reasonable expectations stated above were not and are not based on and do not take into account (a) any expectations or assumptions as to the occurrence of changes in market interest rates or changes of federal tax law or regulations or rulings thereunder or (b) any prepayments of items other than items that are customarily prepaid. Section 2.06. Third Party Beneficiaries. All covenants, agreements and representations of the Borrower and the Issuer in Sections 2.04, 2.05 and 2.07 are hereby declared to be for the benefit of each Program Participant that enters into an Agreement with the Issuer, each such entity being athird-party beneficiary of such covenants, agreements and representations with full right, power and authority to enforce such covenants, agreements and representations directly. The Borrower shall be a third party beneficiary of similar covenants, agreements and representations made by other Program Participants in their respective Agreements, with full right, power and authority to enforce such covenants, agreements and representations directly. Section 2.07. Issuer Tax Covenant. The Issuer hereby covenants for the benefit of each Program Participant, including the Borrower, that it shall not knowingly take any action, or omit to take any action, or permit any action, hereunder, under any other Agreement or under the Indenture, which is within its control to be taken, omitted or permitted, which would adversely affect the exclusion of interest on the Bonds from gross income of the Owners thereof for federal income tax purposes. The Issuer hereby agrees that the Borrower shall be a third-party beneficiary of the certifications made by the Issuer in the Tax Compliance Certificate. Section 2.08. Issuer Certifications. The Issuer does hereby certify as follows: (a) The officer of the Issuer executing this Loan Agreement is the duly elected or appointed, qualified and acting President and Chief Executive Officer of the Issuer and as such is familiar with the books and corporate records of the Issuer; -20- (b) The resolution relating to the Bonds duly adopted by the Board of Directors of the Issuer at duly called meetings of the members of the Issuer held in June 2003, at which a quorum was present and acting throughout (the "Bond Resolution"), is in full force and effect and has not been altered, amended or repealed as of the date hereof; (c) Each of the representations and warranties of the Issuer contained in the Indenture is true, accurate and complete on the date hereof as if made on and as of the date hereof; (d) Each of the agreements of the Issuer to be complied with and each of the obligations of the Issuer to be performed under the Indenture and hereunder on or prior to the date hereof have been complied with and performed; and (e) Pursuant to the provisions of the Indenture, the Trustee is directed to transfer the monies held under the Indenture to the various accounts and in the amounts specified in Article VI of the Indenture. ARTICLE III THE LOAN Section 3.01. The Loan; Borrower Note. Subject to the provisions of Section 4.03, the Issuer agrees to loan to the Borrower the amount of $1,518,000 by making an Advance of the Initial Amount into the Borrower's Reservation Account on the Closing Date. The Loan shall be evidenced by a Borrower Note in the principal amount of the Loan. The Borrower agrees to repay such Loan by making all payments due in respect of the Borrower Note, together with all other amounts due under this Loan Agreement and the Indenture. Interest will accrue on the Loan, and such interest will become an obligation of the Borrower, from and after the Closing Date regardless of the date such Advance is Disbursed from the Reservation Account. Section 3.02. Funding the Loan. The Trustee, as the agent of the Issuer, shall at Closing transfer the amount of the Advance from amounts on deposit in the Bond Proceeds Account to the Borrower's Reservation Account in accordance with the Indenture. Amounts on deposit in such Reservation Account shall belong to and be held for the benefit of the Borrower, and shall be disbursed within seven (7) Business Days of receipt by the Trustee of a Request for Disbursement in the form of Exhibit C hereto. Except for the final Disbursement of a Loan, each Request for Disbursement shall be for a minimum amount of $100,000, unless otherwise approved by the Trustee and Administrator. Disbursements shall be limited to one per calendar month, unless otherwise approved by the Trustee and the Administrator. The Borrower shall deliver a copy of each Request for Disbursement submitted to the Trustee to the Administrator on the date the request is submitted to the Trustee. Other than Advances to the Borrower and deposited in the Borrower's Reservation Account, the Borrower shall have no legal or equitable interest in the proceeds of the Bonds or in any amounts from time to time on deposit in the funds and accounts created by the Indenture. -21- Section 3.03. Closing Submissions. The obligation of the Issuer to deposit the Initial Amount in the Reservation Account established for the Borrower is expressly subject to the receipt by the Administrator and the Trustee of the Closing documents set forth in Section 4.03 hereof. Section 3.04. Evidence of Loan and Other Loan Payment Obligations. The Borrower's obligation to repay the Loan made to the Borrower under this Loan Agreement and the Indenture, together with interest thereon at the applicable Participant Rate, shall be evidenced by one or more Borrower Notes.. The Borrower's obligation to make the other payments required under this Loan Agreement shall be evidenced by this Loan Agreement. ARTICLE IV LOAN TERM, LOAN CLOSING REQUIREMENTS AND LOAN AMENDMENT REQUIREMENTS Section 4.01. Commencement of Loan Term. The Borrower's obligations under this Loan Agreement and the Borrower Note shall commence on the date hereof unless otherwise provided in this Loan Agreement. Section 4.02. Termination of Loan Term. The Borrower's obligations under this Loan Agreement and the Borrower Note shall terminate after payment in full of all amounts due under this Loan Agreement, the Borrower Note, and any Termination Payments due in respect of any related Interest Rate Exchange Agreement, and all amounts not theretofore paid shall be due and payable on January 1, 2009 (the "Loan Term") in accordance with the terms of this Loan Agreement; provided, however, that the covenants and obligations expressed herein to so survive shall survive the termination of this Loan Agreement and the payment in full of the Borrower Note. Upon termination of the Loan Term as provided above, the Issuer, the Trustee or any related Counterparty, as the case may be, shall deliver, or cause to be delivered, to the Borrower the canceled Borrower Note. Section 4.03. Loan Closing Documents. Concurrently with the execution and delivery of this Loan Agreement, the Borrower is providing to or will cause to be provided to the Administrator, the Issuer and the Trustee the following documents, each dated the Closing Date: (a) Certified Ordinance(s) of the Borrower in form and substance acceptable to the Administrator; (b) The original executed Borrower Note, assigned by the Issuer to the Trustee; (c) Evidence from the Administrator and the Credit Facility provider satisfactory to the Trustee to the effect that the Administrator and the Credit Facility Issuer have approved the Loan, this Loan Agreement and the Borrower Note; -22- (d) An opinion (addressed to, and in form and substance acceptable to, the Issuer and the Trustee) of Bond Counsel, to the effect that the Loan will not, in and of itself, adversely affect the exclusion from gross income of the interest on the Bonds from federal income tax; and (e) An opinion of counsel to the Borrower in form and substance, and covering such matters, acceptable to the Administrator, the Issuer, the Trustee and Bond Counsel; and (f) Such other certificates, documents and information as Bond Counsel or the Issuer may require. All opinions and certificates shall be dated the date of the Loan Closing. ARTICLE V LOAN PAYMENTS Section 5.01. Loan Payments. (a) The principal and interest portions of Loan Payments are due in the form of payments on the Borrower Note, in accordance with the terms thereof. The Borrower shall make Loan Payments due under this Loan Agreement in lawful money of the United States of America to the Trustee. Payment by the Borrower of principal, premium, if any, and interest on the Borrower Note shall constitute Loan Payments of principal, premium and interest hereunder. Interest on any past due Loan Payment shall accrue at a rate equal to the Late Payment Rate. All Loan Payments shall be due as set forth in the Borrower Note unless the Borrower Note is prepaid in whole or if the Loan is tendered to the Borrower pursuant to Section 8.03. (b) In the event of a Default by the Borrower, the Borrower shall be and shall remain obligated to pay an amount necessary to reduce the Loan to zero. (c) Except for (i) interest earnings on amounts held in the Reservation Account and (ii) proceeds from the Bond Proceeds Account, in each case (unless otherwise directed in writing by the Administrator) transferred to the Revenue Fund, and except such interest of the Borrower as may hereafter arise pursuant to the Indenture, the Borrower and the Issuer each acknowledge that neither the Borrower nor the Issuer has any interest in the Bond Fund and any moneys deposited therein shall be in the custody of and held by the Trustee in trust for the benefit of the Holders. Section 5.02. Additional Payments. In addition to payments due under Section 5.01, the Borrower agrees to pay the following additional payments: (a) to the Trustee upon demand, the Borrower's Proportionate Share of any Rebate Deficiency calculated in accordance with the Indenture; (b) to the Credit Facility Provider, any Credit Fees allocable to the Borrower; -23- (c) to the Person to whom such amounts are due, upon demand, to the extent not paid from the Expense Fund, Borrower's Proportionate Share of any Fiduciary Fees (other than Remarketing Fees), Sponsor Fees and Administrative Expenses; (d) to the Remarketing Agent, the Borrower's share of any Remarketing Fees to the extent they are not included in Loan Payments (which shall, if no Correlative Bonds are Outstanding, be the Borrower's Proportionate Share or, if any Correlative Bonds are Outstanding, be such share as the Administrator shall determine taking into account any Correlative Bonds and Remarketing Fees related to any Bonds allocable to the Reserve Fund); (e) to the Issuer, the Administrator and the Trustee, as the case may be, upon demand, the fees and out-of-pocket expenses and disbursements of counsel utilized by the Issuer, the Administrator, the Credit Facility Provider and the Trustee in connection with the enforcement of this Loan Agreement or the Indenture upon any default by the Borrower; (f) to the Trustee, on the interest payment date on the Borrower Note following the use of funds in the Reserve Fund to remedy a payment default by the Borrower hereunder, the amount necessary to replenish the Reserve Fund; (g) all taxes and other governmental charges in connection with the execution and delivery of this Loan Agreement, whether or not any amount due hereunder is then outstanding, and all expenses, including attorneys fees, relating to, any amendments, waivers, consents or collection or enforcement proceedings pursuant to the provisions hereof; (h) to any related Counterparty on the date(s) set forth in any related Interest Rate Exchange Agreement, any Termination Payment due under that related Interest Rate Exchange Agreement; (i) interest at the Late Payment Rate to the affected party on any such additional payments enumerated above not received by the Issuer, the Trustee or the Administrator, as the case may be, within l0 days of demand therefor; (j) to the Trustee on each interest payment date on the Borrower Note, any increase in Fiduciary Fees, Administrative Expenses, Remarketing Fees, Sponsor Fees or Credit Fees (collectively, the "Program Costs"), as determined by the Administrator, for each Fiscal Year; provided, however, that Program Costs during any Fiscal Year shall in no event exceed 1.5% of the outstanding amount of the Borrower Note; and (k) any other amount due and payable under this Loan Agreement. The Borrower's accrued obligation to make the payments required by this Section shall survive payment or prepayment of the Borrower Note and other amounts hereunder and termination of this Loan Agreement. Except as provided in this paragraph, the Borrower shall have no obligation to make payments to the Issuer or the Trustee in repayment of the Loan, except for the principal amount thereof, and interest at the Participant Rate. -24- Section 5.03. Determination of BMA Index. The determination by the Remarketing Agent (or, if there is no Remarketing Agent, the Administrator) in accordance with the Indenture of the BMA Index at any time shall be conclusive and binding on the Borrower. Failure by the Remarketing Agent, the Administrator or the Trustee to give notice required hereunder or under the Indenture, or any defect therein, shall not (i) affect the Participant Rate or the payment obligations of the Borrower hereunder, or (ii) impose any liability on the Remarketing Agent, the Administrator or the Trustee to the Borrower. Section 5.04. Unconditional Obligation to Pay Loan Payments. The obligation of the Borrower to make payment of Loan Payments and any other amounts required by this Article V and other Sections hereof, and to perform and observe the other covenants and agreements contained herein, shall be absolute and unconditional in all events except as otherwise expressly provided in this Loan Agreement. Notwithstanding any dispute between the Borrower, the Issuer, the Trustee, the Administrator, any Bondholder or any other Person, the Borrower shall make all payments of Loan Payments when due and shall not withhold any Loan Payments pending final resolution of such dispute, nor shall the Borrower assert any right of setoff or counterclaim against its obligation to make such payments required under this Loan Agreement. The Borrower's obligation to make payment of Loan Payments or any other amounts during the term of this Loan Agreement shall not be abated through accident or unforeseen circumstances or because of payment on the Borrower's behalf. The Issuer and the Borrower agree that the Borrower shall bear all risk of damage or destruction in whole or in part to the Project or any part thereof, including without limitation any loss, complete or partial, or interruption in the use, occupancy or operation of the Project, or any manner or thing which for any reason interferes with, prevents or renders burdensome the use of the Project or the compliance by the Borrower with any of the terms of this Loan Agreement. Notwithstanding the foregoing, this Section 5.04 shall not limit the rights of the Borrower to recover amounts owing to it, except as specifically set forth herein. The obligations of the Borrower to pay the principal of and Appropriated Interest on the Loan and the Borrower Note shall be a general obligation of the Borrower, and the Borrower pledges in the Ordinance its full faith, credit and taxing power to secure such payments. All payments by the Borrower under this Loan Agreement shall be made only from Lawfully Available Funds subject to the terms and conditions hereof. Section 5.05. Agreement to Survive Indenture and Bonds. The Borrower acknowledges that its obligations hereunder shall survive the discharge of the Indenture and payment of the principal of and interest on the Bonds, if and to the extent that amounts are due and owing to any party entitled to receive the same hereunder as of the date of such discharge and payment. Section 5.06. Conversion of Interest Rate. (a) The Borrower may elect to have the interest rate on its Loan to be converted to a fixed rate for all or a portion of the remaining Loan Term if (A) the Credit Facility Provider has -25- consented to the conversion in writing and (B) a replacement Borrower Note reflecting such fixed rate is delivered in connection with such conversion; (b) The Borrower may elect to have the Administrator cause a principal amount of Other Rate Bonds or Weekly Rate Bonds corresponding to the unpaid principal amount of the Loan to be converted to Fixed Rate Bonds in accordance with Section 2.05 of the Indenture if (A) the Credit Facility Provider has approved the conversion in writing, and (B) the other conditions set forth in Section 2.05 of the Indenture are satisfied and the interest rate utilized to determine Loan Payments hereunder is a fixed rate or rates corresponding to the rate or rates to be in effect for the Fixed Rate Bonds. Section 5.07. Participant Rate Not Affected by Bank Bond Rate. Notwithstanding anything in the Indenture or the Reimbursement Agreement to the contrary, the Participant Rate on the Borrower's Note shall not be affected by any Bonds then bearing interest at a Bank Bond Rate. In the event the Variable Rate Component cannot be calculated, such rate shall be calculated by the Administrator in accordance with the Indenture for determining such rate as if such rate was not determined by the Remarketing Agent. ARTICLE VI OPTION TO PREPAY LOAN PAYMENTS Section 6.01. Prepayment and Redemption. (a) The principal amount of the Loan and the Borrower Note shall be subject to optional prepayment and redemption prior to maturity, in whole or in part, on any Business Day, in an amount equal to the Optional Prepayment Price. In connection with and as a condition to any such prepayment, the Borrower shall also pay a redemption premium equal to any Termination Payments due in respect of any related Interest Rate Exchange Agreement. Sixty (60) days prior written notice of such prepayment shall be provided by the Borrower to the Trustee, the Credit Facility Provider, any related Counterparty and the Administrator. In the event any reductions are deemed prepayment, the annual principal installments on the Borrower Note shall be redeemed in inverse order of maturity, based upon the remaining principal outstanding on the Borrower Note. Any prepayment must be in a minimum principal amount of $100,000. (b) Upon any prepayment and redemption in whole of the applicable Borrower Note, this Loan Agreement shall terminate, except for the obligations and covenants expressed herein to survive. (c) After any partial prepayment the Administrator shall recalculate principal installments due under the Borrower Note, applying such prepayment to the Schedule of Principal and Interest Payments attached to the Borrower Note, in inverse order of maturity, unless the Administrator, with the written consent of the Fiscal Officer, shall specify a different application and revised schedule of remaining Loan Payments; provided, however, that no such -26- revision to the schedule of remaining Loan Payments shall extend the average life of the Loan in violation of the requirements of the Tax Compliance Certificate. ARTICLE VII ASSIGNMENT Section 7.01. Assignment by Issuer; Administrator. (a) This Loan Agreement, the Borrower Note, and the obligations of the Borrower to make payments hereunder and thereunder may be assigned and reassigned in whole or in part to one or more assignees or sub assignees by the Issuer at any time subsequent to its execution without the necessity of obtaining the consent of the Borrower. The Borrower expressly acknowledges that this Loan Agreement, the Borrower Note, and the obligations of the Borrower to make payments hereunder and thereunder (with the exception of certain of the Issuer's rights to indemnification, fees and expenses) have been assigned to the Trustee as security for the Bonds under the Indenture and that the Trustee shall be entitled to act hereunder and thereunder in the place and stead of the Issuer whether or not the Bonds are in default. In addition, the Borrower acknowledges that the Issuer may appoint an Administrator which shall be entitled to act hereunder in the place and stead of the Issuer or the Trustee, to the extent of such appointment. (b) Upon receipt of notice of any assignment of this Loan Agreement, Borrower will make all payments required by Article V directly to such assignee, without defense or set off by reason of any dispute between the Borrower, the Issuer, the Trustee, the Administrator, the Credit Facility provider or any other Person; provided, however that any such payments relating to indemnification and reimbursement of the respective parties shall be made by the Borrower to the Trustee without defense or set off by reason of any dispute between the Borrower and such assignee, the Issuer, the Administrator, the Credit Facility Provider or any other Person. Section 7.02 Hedging by the Counterparties. The Borrower acknowledges that any related Counterparty may enter into certain hedging arrangements with respect to their obligations under the related Interest Rate Exchange Agreements and that the counterparty under such hedging arrangements, as a successor and assign of such Counterparties, may have the right to enforce the Borrower's obligations hereunder. Section 7.03 Assignment by Borrower. Other than an assignment to the Trustee, this Loan Agreement and the Borrower Note may not be assigned by the Borrower for any reason without the express prior written consent of the Issuer, any related Counterparty, the Administrator and the Trustee. ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES Section 8.01. Events of Default Defined. The following shall be "Events of Default" under this Loan Agreement and the terms "Event of Default" and "Default" means (except where -27- the context clearly indicates otherwise), whenever they are used in this Loan Agreement, any one or more of the following events: (a) Failure by the Borrower to timely pay any Loan Payment on the date on which it is due and payable; (b) Failure by the Borrower to pay any Additional Payment on the date on which it is due and payable; (c) Failure by the Borrower to observe and perform any covenant condition or agreement on its part to be observed or performed under this Loan Agreement other than a covenant referred to in Section 8.01(a) or 8.01(d) through (h), for a period of thirty (30) days after written notice specifying such failure and requesting that it be remedied is given to the Borrower by the Administrator, any related Counterparty, the Credit Facility Provider or the Trustee, unless the Administrator and the Trustee shall agree in writing to an extension of such time prior to its expiration; provided, however, if the failure stated in the notice can be wholly cured within a period of time not materially detrimental to the rights of the Issuer, any related Counterparty, the Credit Facility provider or the Trustee, but cannot be cured within the applicable 30-day period, the Administrator, any related Counterparty, the Credit Facility Provider and the Trustee will not unreasonably withhold their consent to an extension of such time if corrective action is instituted by the Borrower within the applicable period and diligently pursued until the failure is corrected; (d) Any warranty, representation or other statement by the Borrower or by an officer or agent of the Borrower contained in this Loan Agreement, the Borrower Note, or in any instrument furnished in compliance with or in reference to this Loan Agreement or the Borrower Note, is false or misleading in any material respect; (e) A petition is filed against the Borrower under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation law of any jurisdiction, whether now or hereafter in effect, and is not dismissed within 60 days of such filing; (f) The Borrower files a petition in voluntary bankruptcy or seeking relief under any provision of any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation law of any jurisdiction, whether now or hereafter in effect or consents to the filing of any petition against it under any such law; (g) The Borrower admits insolvency or bankruptcy or its inability to pay its debts as they become due or is generally not paying its debts as such debts become due, or becomes insolvent or bankrupt or makes an assignment for the benefit of creditors, or a custodian (including without limitation a receiver, liquidator or trustee) of the Borrower or any of its property is appointed by court order or takes possession thereof and such order remains in effect or such possession continues for more than 60 days; or (h) Any material provision of this Loan Agreement or the Borrower Note shall at any time for any reason cease to be valid and binding on the Borrower, or shall be declared to be null -28- and void, or the validity or enforceability of any such provision shall be contested in any administrative or judicial proceeding by the Borrower or any governmental agency (other than the Issuer), or if the Borrower shall deny the validity or enforceability of any such provision or any further liability or obligation under this Loan Agreement or the Borrower Note. Section 8.02. Notice of Default. The Borrower agrees to give the Trustee, the Issuer, the Credit Facility Provider and the Administrator written notice of the occurrence of any event or condition which constitutes a Default or an Event of Default, or with the passage of time or the giving of notice or both would constitute an Event of Default, immediately upon becoming aware of the existence thereof. Section 8.03. Remedies on Default. Whenever any Event of Default shall have occurred and be continuing, the Issuer, the Credit Facility Provider or the Trustee shall, in addition to any other remedies herein or by law provided, have the right, without any further demand or notice, to take such steps and exercise such remedies as shall be directed by the Administrator or the Credit Facility Provider, including, without limitation, one or more of the following: (a) Take any action permitted or required pursuant to the Indenture; (b) Tendering the Borrower Note to the Borrower for immediate purchase; and (c) Take whatever other action at law or in equity may appear necessary or desirable to collect the amounts then due and thereafter to become due hereunder or to enforce any other of its or their rights hereunder. Section 8.04. Attorneys' Fees and Other Expenses. If and to the extent permitted by law, the Borrower shall on demand pay to the Issuer, the Trustee, the Credit Facility Provider, any related Counterparty or the Administrator, the reasonable fees and expenses of attorneys including the allocated costs and expenses of in-house counsel, and other reasonable extraordinary fees and expenses incurred by any of them in the collection of Loan Payments or any other sums due or the enforcement of performance of any other obligations of the Borrower upon an Event of Default. The provisions of this Section 8.04 shall survive the termination of this Loan Agreement and the payment in full of the Borrower Note. Section 8.05. Application of Moneys. Any moneys collected by the Issuer, the Trustee, any related Counterparty, the Credit Facility Provider or the Administrator pursuant to Section 8.03 hereof shall be applied (a) first, to pay interest and principal on the Borrower Note, (b) second, to pay any Rebate Deficiency, (c) third, to any reasonable attorneys' fees or other expenses owed by the Borrower to the Issuer, the Trustee, the Credit Facility Provider, any related Counterparty or the Administrator pursuant to Section 8.04 hereof, pro rata based on the amount of such expenses owed, (d) fourth, to pay any other amounts due hereunder, including but not limited to Fiduciary Fees, and (e) fifth, to pay interest and principal on the Borrower Note and other amounts payable hereunder but which are not due, as they become due (in the same order, as to amounts which come due simultaneously, as in (a) through (d) in this Section 8.05). -29- Section 8.06. No Remedy Exclusive; Waiver; Notice. No remedy herein conferred upon or reserved to the Issuer, the Trustee, any related Counterparty, the Credit Facility Provider or the Administrator is intended to be exclusive and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Loan Agreement or now or hereafter existing at law or in equity. No delay or omission to exercise any right, remedy or power accruing upon any Default shall impair any such right, remedy or power or shall be construed to be a waiver thereof, but any such right, remedy or power may be exercised from time to time and as often as may be deemed expedient. In order to entitle the Issuer, the Trustee, any related Counterparty, the Credit Facility Provider or the Administrator to exercise any remedy reserved to it in this Article VIII, it shall not be necessary to give any notice other than such notice as may be required in this Article VIII. Section 8.07. Retention of the Issuer's Rights. Notwithstanding any assignment or transfer of this Loan Agreement pursuant to the provisions hereof or of the Indenture, or anything else to the contrary contained herein, the Issuer shall have the right upon the occurrence of an Event of Default to take any action, including, without limitation, bringing an action against the Borrower at law or in equity, as the Issuer may, in its discretion, deem necessary to enforce the obligations of the Borrower to the Issuer pursuant to Section 8.03. ARTICLE IX REBATE OF EXCESS FUNDS Section 9.01. Rebate of Excess Funds. Any amounts remaining in the Trust Estate (as defined in the Indenture) after (a) full payment of the Bonds or provision for payment thereof so that no Bonds are deemed Outstanding under the Indenture; (b) all amounts owed to the Credit Facility Provider under the Credit Agreement have been paid; (c) all amounts owed to any related Counterparty under any related Interest Rate Exchange Agreements have been paid; and (d) all Fiduciary Fees, Sponsor Fees and Administrative Expenses have been paid, shall, after such full payment or provision shall have been made and no claim shall have been made thereon, be rebated by the Trustee to the Borrower in an amount equal to the amount remaining in the Trust Estate (as defined in the Indenture) multiplied by the result of (a) the dollar amount of interest theretofore received by the Trustee under the Loan, divided by (b) the total dollar amount of all interest payments theretofore received by the Trustee under all Loan Agreements and Borrower Notes of all Program Participants under the Program; provided, however, if any amount shall then be due and owing to the Trustee or the Issuer by the Borrower, such amount shall, to the extent of the amount so due and owing, be paid by the Trustee to such person. Notwithstanding the foregoing, in the event obligations are issued to refund the Bonds, the Issuer and the Trustee may transfer any amounts remaining in any Fund or Account (as those terms are defined in the Indenture) to funds created in connection with the issuance of such refunding obligations if, in the opinion of Bond Counsel, the tax-exempt status of the interest on the Bonds is not adversely affected thereby. -30- ARTICLE X MISCELLANEOUS Section 10.01. Notices. All notices, certificates or other communications hereunder shall be sufficiently given and shall be deemed given when hand delivered, telephoned or mailed by registered, express or certified mail, postage prepaid, to the parties at the following addresses: The Issuer: Columbus Regional Airport Authority Attn: Managing Director, Finance & Administration 4600 International Gateway Columbus, Ohio 43219 With a copy to: Squire, Sanders & Dempsey L.L.P. 4900 Key Tower 127 Public Square Cleveland, Ohio 44114-1304 Attn: Robert D. Label The Borrower: City of Dublin 5800 Shier Rings Road Dublin, Ohio 43016-7295 Attention: Marsha Grigsby, Director of Finance The Administrator: Seasongood & Mayer LLC 300 Mercantile Library Building 414 Walnut Street Cincinnati, Ohio 45202 Attention: Forman Friend Telephone: (513) 621-2000 Fax: (513) 621-1865 The Trustee• National City Bank Attn: Sandra Peterman 629 Euclid Ave., Suite 635 Locator 3116 Cleveland, Ohio 44114-3484 -31- Telephone: (216) 222-2640 Fax: (216) 222-9326 Underwriter Seasongood & Mayer LLC 300 Mercantile Library Building 414 Walnut Street Cincinnati, Ohio 45202 Attention: Forman Friend Telephone: (513) 621-2000 Fax: (513) 621-1865 Any of the above parties may, by notice in writing given to the others, designate any further or different addresses or facsimile numbers to which subsequent notices, certificates or other communications shall be sent. Section 10.02. Binding Effect. This Loan Agreement shall inure to the benefit of and shall be binding upon the Issuer, the Trustee and the Borrower and their respective successors and assigns. Section 10.03. Severability. In the event any provision of this Loan Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. Section 10.04. Amendments, Changes and Modifications. This Loan Agreement and the Borrower Note may be amended only with written consent of the Issuer, the Borrower, the Trustee, the Administrator, any related Counterparty and the Credit Facility Provider. - Section 10.05. Execution in Counterparts. This Loan Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. Section 10.06. Applicable Law. This Loan Agreement shall be governed by and construed in accordance with the laws of the State. Section 10.07. Benefit of Bondholders; Compliance with Indenture. This Loan Agreement is executed in part to induce the purchase by others of the Bonds, to induce the Administrator to approve the Borrower's participation in the Program, to induce the Credit Facility Provider to approve the Loan to the Borrower and to induce the execution and delivery by the Counterparties of the Interest Rate Exchange Agreements. Accordingly, all covenants, agreements and representations on the part of the Borrower and the Issuer, as set forth in this Loan Agreement, are hereby declared to be for the benefit of the holders from time to time of the Bonds, and for the benefit of the Issuer, the Credit Facility Provider and any related Counterparty, each as a third party beneficiary hereunder with full right, power and authority to enforce such covenants, agreements and representations directly. The Borrower covenants and -32- agrees to do all things within its power in order to comply with and to enable the Issuer to comply with all requirements and to fulfill and to enable the Issuer to fulfill all covenants of the Indenture. Section 10.08. Consents and Approvals. Whenever the written consent or approval of the Issuer shall be required under the provisions of this Loan Agreement, such consent or approval may be given by the Executive of the Issuer or such other additional person provided by law or by rules or regulations of the Issuer. Section 10.09. Immunity of Officers, Employees and Members of Issuer and Borrower. No recourse shall be had for the payment of the principal of, or premium or interest on, the Loan or the Borrower Note or for any claim based thereon or upon any representation, obligation, covenant or agreement in this Loan Agreement against any past, present or future officer, member, employee, director or agent of the Issuer or the Borrower, respectively, of any successor public or private corporation thereto, as such, either directly or through the Issuer or the Borrower, respectively, any successor public or private corporation thereto under any rule of law or equity, statute or constitution or by the enforcement of any assessment or penalty or otherwise, and all such liability of any such officers, members, employees, directors or agents as such is hereby expressly waived and released as a condition of and consideration for the execution of this Loan Agreement and the issuance of the Borrower Note. Section 10.10. Captions. The captions or headings in this Loan Agreement are for convenience only and in no way define, limit or describe the scope or intent of any provisions or sections of this Loan Agreement. Section 10.11. Pecuniary Liability of Issuer. No provision, covenant or agreement contained in this Loan Agreement on behalf of the Issuer, or any obligation herein imposed upon the Issuer, or the breach thereof, shall constitute ari indebtedness or liability of the State or any political subdivision of the State or any public corporation or governmental agency existing under the laws thereof other than the Issuer. In making the agreements, provisions and covenants set forth in this Loan Agreement neither the Issuer nor the Borrower has obligated itself except as provided herein. Section 10.12. Payments Due on Holidays. If the date for making any payment or the last date for performance of any act or the exercise of any right, as provided in this Loan Agreement shall be a day other than a Business Day, such payments may be made or act performed or right exercised on the next Business Day with the same force and effect as if done on the nominal date provided in this Loan Agreement. Section 10.13. Right of Others to Perform Borrower's Covenants. In the event the Borrower shall fail to make any payment or perform any act required to be performed hereunder, then and in each such case the Issuer, the Trustee or the Administrator may (but shall not be obligated to) remedy such default for the account of the Borrower and make advances for that purpose. No such performance or advance shall operate to release the Borrower from any such default and any sums so advanced by the Issuer, the Trustee or the Administrator shall bear interest from the date of the advance until repaid as provided herein. -33- -34- IN WITNESS WHEREOF, each of Columbus Regional Airport Authority and the Borrower has caused this Loan Agreement to be executed in its respective name by its respective Authorized Officers. All of the above occurred as of the date first above written. COLUMBUS REGIONAL AIRPORT AUTHORITY, Issuer By: President and Chief Executive Officer CITY OF DUBLIN, Borrower By: Mayor By: Director of Finance -35- CERTIFICATE OF FISCAL OFFICER The undersigned, the Director of Finance of the Borrower, certifies that the money required to meet the obligations of the Borrower during Fiscal Year 2004 under the attached Loan Agreement have been lawfully appropriated by the Legislative Authority for such purposes and are in the treasury or in the process of collection to the credit of an appropriate fund, free from any previous encumbrances. This Certificate is given in compliance with Section 5705.41 of the Revised Code. Dated: April 2004 Marsha I. Grigsby Director of Finance City of Dublin, Ohio -36- EXHIBIT A PROJECT DESCRIPTION The Project consists of the following: Acquiring real estate and interests in real estate for park purposes. A-1 EXHIBIT B FORM OF NOTE NUMBER AMOUNT R-1 $1,518,000 UNITED STATES OF AMERICA STATE OF OHIO COUNTIES OF DELAWARE, FRANKLIN, AND UNION CITY OF DUBLIN PARKLAND ACQUISITION BOND, SERIES 2004 (THE OHIO MUNICIPAL BOND POOLED FINANCING PROGRAM) INTEREST RATE: DATED AS OF: per year APRIL 2004 REGISTERED OWNER: Columbus Regional Airport Authority, Ohio PRINCIPAL AMOUNT: ONE MILLION FIVE HUNDRED AND EIGHTEEN THOUSAND DOLLARS The City of Dublin, Ohio (the Borrower), for value received, promises to pay to the Registered Owner named above, or registered assigns, the Principal Amount stated above in annual installments on January 1 of each year, commencing on January 1, 2005, (the Maturity Dates) and in the amounts set forth in the Schedule of Principal and Interest Payments (the Schedule) attached hereto and incorporated herein by reference, and interest on the unpaid portion of the Principal Amount from the date of this Bond until the Principal Amount is paid or provided for, at the Interest Rate stated above, payable on January 1 and July 1 of each year, commencing January 1, 2005 (the Interest Payment Dates); provided, that, if the Borrower does not provide for payment of the debt charges payable on a Maturity Date or Interest Payment Date, then from and after that Maturity Date or Interest Payment Date, as the case may be, until such time as any payment default has been cured interest on the unpaid portion of the Principal Amount shall be at the lesser of (i) 25% per year or (ii) the Late Payment Rate as defined in the Loan Agreement identified below. Principal and interest are payable when due in lawful money of the United States of America, without deduction for the paying agent services, to the person in whose name this Bond is registered (the Registered Owner) on the Register maintained by the Bond Registrar, initially, ~ In accordance with the requirements of the Program (as defined in the Loan Agreement), principal and interest are payable upon on behalf of that Registered Owner by the Bond Registrar to the principal corporate trust office of National City Bank, Cleveland, Ohio as the trustee under the Program (the Program Trustee) and the receipt of each such B-1 payment shall be acknowledged in writing by the Program Trustee and endorsed by the Program Trustee on the Schedule attached hereto. This Bond issued in lieu of and to represent a series of $1,518,000 of bonds (the Bonds) for the purpose of paying the cost of acquiring real estate and interests in real estate for park purposes, under authority of and pursuant to the laws of the State of Ohio, particularly Chapter 133 of the Revised Code, the Borrower's Charter and Ordinance No. _-04 passed by the Council of the Borrower on April 2004 (the Bond Ordinance), and to evidence the Borrower's obligation to repay a loan received under the terms of a Loan Agreement dated April 2004 (the Loan Agreement) between the Borrower and the Columbus Regional Airport Authority, Ohio. Unless paid from other sources, the debt charges on the Bonds are to be paid from the proceeds of the levy of ad valorem taxes on all property subject to ad valorem taxes levied by the Borrower, which taxes are within the ten-mill limitation imposed by law. This Bond is subject to redemption, by and at the sole option of the Borrower, in whole or in part at any time, pursuant to and in accordance with the Loan Agreement and at the Optional Prepayment Price as defined in the Loan Agreement. If this Bond or installments of the Principal Amount hereof are called for redemption and if money for the redemption of this Bond or those installments to be redeemed is held by the Paying Agent on the redemption date, so as to be available therefore on the redemption date, then from and after the redemption date this Bond or the installments hereof called for redemption shall cease to bear interest and no longer be considered to be outstanding. It is certified and recited that all acts and conditions necessary to be performed by the Borrower or to have been met precedent to and in the issuing of the Bonds in order to make them legal, valid and binding general obligations of the Borrower, have been performed and have been met in regular and due form as required by law; that payment in full for the Bonds has been received; that the full faith and credit of the Borrower are pledged for the timely payment of principal and interest; and that no statutory or constitutional limitation on indebtedness or taxation has been exceeded in issuing the Bonds. IN WITNESS OF THE ABOVE, the Council has caused this Bond to be signed in the name of the Borrower and in their official capacities by the Mayor and the Director of Finance of the Borrower, all as of the date stated above. Director of Finance Mayor CERTIFICATE OF AUTHENTICATION This Bond is one of the Bonds described in the Bond Ordinance referred to therein. Date of Registration and Authentication: April 2004 By: Authorized Signer B-2 ASSIGNMENT For value received, the undersigned sells, assigns and transfers this Bond to (print or typewrite name, address, zip code and Social Security number or other tax identification number of Transferee). and irrevocably constitutes and appoints as attorney in fact to transfer this Bond on the Bond Register, with full power of substitution in the premises. Dated: Signature Guaranteed: Notice: The assignor's signature to this assignment must correspond with the name as it appears upon the face of this Bond. B-3 SCHEDULE OF PRINCIPAL AND INTEREST PAYMENTS Payment Interest Principal Interest Principal Total Payment Date Due Due Paid Paid Paid Received January I, 2005 July 1, 2005 January 1, 2006 July 1, 2006 January 1, 2007 July 1, 2007 January 1, 2008 July I, 2008 January 1, 2009 B-4 ENDORSEMENT FOR VALUE RECEIVED, Columbus Regional Airport Authority (the Issuer) hereby sells, assigns and transfers this Bond unto National City Bank (the Trustee), as trustee under that certain Trust Indenture dated as of January 1, 2004 and by and between the Issuer and the Trustee, this Bond to be held by the Trustee under the terms and conditions set forth in the Indenture and constitute a part of the Trust Estate, as defined therein. COLUMBUS REGIONAL AIRPORT AUTHORITY, as Issuer By: President and Chief Executive Officer B-5 EXHIBIT C REQUEST FOR DISBURSEMENT NOTE: FUNDS CANNOT BE DISBURSED EXCEPT FOR PROJECT COSTS (I) ALREADY INCURRED BY THE BORROWER AND CURRENTLY DUE AND PAYABLE OR (II) PAID BY THE BORROWER FOR WHICH THE BORROWER IS SEEKING REIMBURSEMENT. The undersigned, the duly authorized Director of Finance of the City of Dublin (the Borrower), submits this Request for Disbursement on behalf of the Borrower for $ pursuant to Section 3.02 of that certain Loan Agreement by and between Columbus Regional Airport Authority (the Issuer) and the Borrower dated as of March 2004 (the Loan Agreement) and relating to the Issuer's The Ohio Municipal Bond Pooled Financing Program (the Program). The Trustee shall disburse the amount requested herein to the following parties for the following purpose: Payee Amount Purpose The undersigned, on behalf of the Borrower, hereby certifies that: 1. The portion of the Project for which disbursement of money is hereby requested either (i) has been acquired, constructed or installed by the Borrower and payment therefore is due and owing or (ii) has been previously paid by Borrower and the disbursement of the funds herein requested has been approved by the Borrower. 2. To the extent amounts, if any, requested herein are being used to reimburse the Borrower for assets previously purchased, such assets were purchased by the Borrower no earlier than sixty (60) days prior to the date hereof, except as declared by the Legislative Authority of the Borrower in its ordinance passed , 2004. 3. The representations and warranties of the Borrower set forth in the Loan Agreement are true and correct on the date hereof, and the Borrower is in compliance with all terms, covenants and conditions of the Loan Agreement on the date hereof. 4. The Project has been substantially completed. Dated: CITY OF DUBLIN By: Director of Finance C-1 Attachment A Definitions for Tax Covenants and Representations The following terms, as used in Attachment A and in the Loan Agreement to which it is attached, have the following meanings unless therein otherwise defined or unless a different meaning is indicated by the context in which the term is used. Capitalized terms used within these definitions that are not defined in Attachment A have the meanings ascribed to them in the Loan Agreement to which this Attachment A is attached or the Tax Compliance Certificate. The word "issue," in lower case, refers either to the Bonds or to another issue of obligations or portion thereof treated as a separate issue for the applicable purposes of Section 148, as the context requires. The word "obligation" or "obligations," in lower case, includes any obligation, whether in the form of bonds, notes, certificates, or any other obligation that is a "bond" within the meaning of Section 150(a)(1). All capitalized terms used in this Attachment include either the singular or the plural. All terms used in this Attachment A or in the Loan Agreement to which this Attachment A is attached, including terms specifically defined, shall be interpreted in a manner consistent with Sections 103 and 141-150 and the applicable Regulations thereunder except as otherwise specified. All references to Section, unless otherwise noted, refer to the Code. "Advance Refunding Issue" means any Refunding Issue that is not a Current Refunding Issue. Where appropriate, the term Advance Refunding Issue shall include the Advance Refunding Portion of a multipurpose issue. "Advance Refunding Portion" means that portion of a multipurpose issue that is allocable to a separate governmental purpose and that would be treated as an Advance Refunding Issue if it were in fact a separate issue. "Available Amounts" means any amounts that are available to the Issuer to pay Working Capital Expenditures of the type financed by the issue, excluding Proceeds of the issue, but including cash, investments, and other amounts held in accounts or otherwise by the Issuer or a Related Party if those amounts may be used by the Issuer for Working Capital Expenditures of the type being financed by the Issue without legislative or judicial action and without a legislative, judicial, or contractual requirement that those amounts be reimbursed. "Available Construction Proceeds" means an amount equal to (a) the sum of (i) the Issue Price of the issue, (ii) Investment Proceeds on that Issue Price, (iii) earnings on any reasonably required reserve or replacement fund allocated to the issue not funded from the Issue Price, and (iv) Investment Proceeds and earnings on (ii) and (iii), (b) reduced by the portions, if any, of the Issue Price of the issue (i) attributable to Pre-Issuance Accrued Interest and earnings thereon, (ii) allocated to the Underwriter's discount, (iii) used to pay other Issuance Costs of the issue, and (iv) deposited in a reasonably required reserve or replacement fund allocated to the issue. Available Construction Proceeds do not include Investment Proceeds or earnings on a reasonably required reserve or replacement fund allocated to the issue for any period after the earlier of (a) the close of the 2-year period that begins on the Issuance Date or (b) the date the construction of the Projects financed by the issue is substantially completed. If the issue consists of a New Money Portion and a Refunding A-1 Portion and the New Money Portion is a Construction Issue, this definition shall be applied by substituting "New Money Portion" for "issue" each place the latter term appears. If the issue or the New Money Portion, as applicable, is not a Construction Issue, and the Issuer makes the election under Regulations §1.148-7(j)(1) and Section 148(f)(4)(C)(v) to treat the issue or the New Money Portion as two separate issues consisting of the Construction Portion and the Nonconstruction Portion, this definition shall be applied by substituting "Construction Portion" for "issue" each place the latter term appears. "Bona Fide Debt Service Fund" means a fund, including a portion of or an account in that fund (or in the case of a fund established for two or more bond or note issues, the portion of that fund properly allocable to an issue) or a combination of such funds, accounts or portions that is used primarily to achieve a proper matching of revenues with Debt Service on an issue within each Bond Year and that is depleted at least once each year except for a reasonable carryover amount not to exceed the greater of the earnings thereon for the immediately preceding Bond Year or one-twelfth of the annual Debt Service on the issue for the immediately preceding Bond Year. "Bond Year" means the annual period relevant to the application of Section 148(f) to the issue, except that the first and last Bond Years may be less than 12 months long. The last day of a Bond Year shall be the close of business on the day preceding the anniversary of the Issuance Date of the issue unless the Issuer selects another date on which to end a Bond Year in the manner permitted by the Code. "Capital Expenditures" means costs of a type that are properly chargeable to capital account (or would be so chargeable with a proper election) under general federal income tax principles. "Code" means the Internal Revenue Code of 1986, the Regulations (whether temporary or final) under that Code or the statutory predecessor of that Code, and any amendments of, or successor provisions to, the foregoing and any official rulings, announcements, notices, procedures and judicial determinations regarding any of the foregoing, all as and to the extent applicable. Unless otherwise indicated, reference to a Section includes any applicable successor section or provision and such applicable Regulations, rulings, announcements, notices, procedures and determinations pertinent to that Section. "Commingled Fund" means any fund or account of the Issuer that contains both Gross Proceeds of an issue and amounts in excess of $25,000 that are not Gross Proceeds of that issue if the amounts in the fund or account are invested and accounted for collectively, without regard to the source of funds deposited in the fund or account. "Commingled Investment Proceeds" means, in the case of certain issues specified in Regulations § 1.148-6(d)(6), Investment Proceeds of such issue (other than Investment Proceeds held in a Refunding Escrow) that are deposited in a Commingled Fund with substantial tax or other revenues from governmental operations of the Issuer and that are reasonably expected to be spent for governmental purposes within 6 months from the date of deposit in the Commingled Fund, using any reasonable accounting assumptions. A-2 "Computation Date" means each date on which the Rebate Amount for an issue is required to be computed under Regulations §1.148-3(e). In the case of a Fixed Yield Issue, the first Computation Date shall not be later than 5 years after the Issuance Date of the issue. Subsequent Computation Dates shall be not later than 5 years after the immediately preceding Computation Date for which an installment payment of the Rebate Amount was paid. In the case of Variable Yield Issue, the first Computation Date shall be the last day of any Bond Year irrevocably selected by the Issuer ending on or before the fifth anniversary of the Issuance Date of such issue and subsequent Computation Dates shall be the last day of each Bond Year thereafter or each fifth Bond Year thereafter, whichever is irrevocably selected by the Issuer after the first date on which any portion of the Rebate Amount is required to be paid to the United States. The final Computation Date is the date an issue is retired. "Conduit Borrower" means the obligor on a purpose investment. "Conduit Financing Issue" means an issue the Proceeds of which are reasonably expected to be used to fmance at least one Conduit Loan. "Conduit Loan" means a purpose investment acquired by an issuer with Proceeds of a Conduit Financing Issue, thereby effecting a loan to the Conduit Borrower. "Construction Expenditures" means Capital Expenditures allocable to the cost of real property (including the construction or making of improvements to real property, but excluding acquisitions of interests in land or other existing real property) or constructed personal property within the meaning of Regulations § 1.148-7(g). "Construction Issue" means an issue at least 75 percent of the Available Construction Proceeds of which are to be used for Construction Expenditures with respect to property which is or is to be owned by a Governmental Unit or a 501(c)(3) Organization. If an election under Section 148(f)(4)(C)(v) and Regulations §1.148-7(j) is made to bifurcate an issue or the New Money Portion, that portion of the issue or the New Money Portion which satisfies the 75 percent test stated in the preceding sentence and which fmances 100% of the Construction Expenditures is the Construction Issue. "Controlled Group" means a group of entities controlled directly or indirectly by the same entity or group of entities within the meaning of Regulations § 1.150-1(e). "Current Refunding Issue" means a Refunding Issue that is issued not more than 90 days before the last expenditure of any Proceeds of the Refunding Issue for the payment of Debt Service on the Prior Issue. Where appropriate, the term Current Refunding Issue shall include the Current Refunding Portion of a multipurpose issue. "Current Refunding Portion" means that portion of a multipurpose issue that constitutes a separate governmental purpose and that would be treated as a Current Refunding Issue if it were in fact a separate issue. A-3 "Debt Service" means principal of and interest and any redemption premium on an issue. "Excess Gross Proceeds" means all Gross Proceeds of an Advance Refunding Issue or Advance Refunding Portion that exceed an amount equal to 1 percent of the Sale Proceeds of such Advance Refunding Issue or Advance Refunding Portion, other than Gross Proceeds allocable to: (a) payment of Debt Service on the Prior Issue; (b) payment of Pre-Issuance Accrued Interest on the Advance Refunding Issue or Advance Refunding Portion and interest on the Advance Refunding Issue or Advance Refunding Portion that accrues for a period up to the completion date of any capital project financed by the Prior Issue, plus one year; (c) a reasonably required reserve or replacement fund for the Advance Refunding Issue or Advance Refunding Portion or Investment Proceeds of such fund; (d) payment of Issuance Costs of the Advance Refunding Issue or Advance Refunding Portion; (e) payment of administrative costs allocable to repaying the Prior Issue, carrying and repaying the Advance Refunding Issue or Advance Refunding Portion, or investments of the Advance Refunding Issue or Advance Refunding Portion; (f) Transferred Proceeds allocable to expenditures for the governmental purpose of the Prior Issue; (g) interest on purpose investments; (h) Replacement Proceeds in a sinking fund for the Advance Refunding Issue or Advance Refunding Portion; and (i) fees for a Qualified Guarantee for the Advance Refunding Issue, the Advance Refunding Portion or the Prior Issue. "Federally Guaranteed" means that (a) the payment of Debt Service on an issue, or the payment of principal or interest with respect to any loans made from the Proceeds of an issue, is directly or indirectly guaranteed in whole or in part by the United States or by an agency or instrumentality of the United States, within the meaning of Section 149(b), or (b) more than 5% of the Proceeds of an issue will be invested directly or indirectly in federally insured deposits or accounts. The preceding sentence does not apply to (a) Proceeds invested during the initial Temporary Period until such Proceeds are needed to pay costs of the Project, (b) investments of a Bona Fide Debt Service Fund, (c) direct purchases from the United States of obligations issued by the United States Treasury, or (d) other investments permitted by Section 149(b) or Regulations "501(c)(3) Organization" means an organization described in Section 501(c)(3) and exempt from tax under Section 501(a). "Fixed Yield Issue" means an issue of obligations the Yield on which is fixed and determinable on the Issuance Date. "Governmental Unit" means a state, territory or possession of the United States, the District of Columbia, or any political subdivision thereof referred to as a "State or local governmental unit" in Regulations § 1.103-1(a). "Governmental Unit" does not include the United States or any agency or instrumentality of the United States. "Gross Proceeds" means Proceeds and Replacement Proceeds of an issue. "Higher Yielding Investments" means any Investment Property that produces a Yield that (a) in the case of Investment Property allocable to Replacement Proceeds of an issue and A-4 Investment Property in a Refunding Escrow, is more than one thousandth of one percentage point (.00001) higher than the Yield on the applicable issue, and (b) for all other purposes of this Loan Agreement and the Tax Compliance Certificate, is more than one-eighth of one percentage point (.00125) higher than the Yield on the applicable issue. "Investment Proceeds" means any amounts actually or constructively received from investing Proceeds of an issue in Investment Property. "Investment Property" means investment property within the meaning of Sections 148(b)(2) and 148(b)(3), including any security (within the meaning of Section 165(g)(2)(A) or (B)), any obligation, any annuity contract and any other investment-type property (including certain residential rental property for family units as described in Section 148(b)(2)(E) in the case of any bond other than a Private Activity Bond). Investment Property includes aTax-Exempt Obligation that is a "specified private activity bond" as defined in Section 57(a)(5)(C) but does not include other Tax-Exempt Obligations. "Issuance Costs" means any financial, legal, administrative and other fees or costs incurred in connection with the issuance of an issue, including any underwriter's compensation withheld from the Issue Price. "Issuance Date" means the date of physical delivery of an issue by the Issuer in exchange for the purchase price of the issue. "Issue Price" means in the circumstances applicable to the issue: (1) Public Offering. In the case of obligations actually offered to the general public in a bona fide public offering at the initial offering price for each maturity set forth in the Certificate of the Underwriter or Placement Agent attached to the Tax Compliance Certificate, the aggregate of the initial offering price for each maturity (including any Pre-Issuance Accrued Interest and original issue premium), which is not more than the fair market value thereof as of the Sale Date, and at which initial offering price not less than 10% of the principal amount of each maturity, as of the Sale Date, was sold or reasonably expected to be sold (other than to bond houses, brokers or other intermediaries). In the case of publicly offered obligations that are not described in the preceding sentence, Issue Price means the aggregate of the initial offering price to the public of each maturity set forth in the Certificate of the Underwriter or Placement Agent attached to the Tax Compliance Certificate, which is not more than the fair market value thereof as of the Sale Date, and at which initial offering price not less than 10% of the principal amount of each maturity was sold to the public. (2) Private Placement. In the case of obligations sold by private placement, the aggregate of the prices, including any Pre- A-5 Issuance Accrued Interest and original issue premium, paid to the Issuer by the first purchaser(s) (other than bond houses, brokers or other intermediaries). "Minor Portion" means an amount equal to the lesser of $100,000 or 5% of the Sale Proceeds of the issue. "Net Proceeds" means the Sale Proceeds of an issue less the portion thereof, if any, deposited in a reasonably required reserve or replacement fund for such issue. "Net Sale Proceeds" means the Sale Proceeds of an issue less the portion thereof, if any, deposited in a reasonably required reserve or replacement fund for such issue and invested as a part of a Minor Portion for such issue. "New Money Issue" means an issue that is not a Refunding Issue. "New Money Portion" means that portion of a multipurpose issue other than the Refunding Portion. "Nonpurpose Investments" means any Investment Property that is acquired with Gross Proceeds as an investment and not in carrying out any governmental purpose of the issue. "Nonpurpose Investments" does not include any investment that is not regarded as "investment property" or a "nonpurpose investment" for the particular purposes of Section 148 (such as certain investments in U.S. Treasury obligations in the State and Local Government Series and certain temporary investments), but does include any other investment that is a "nonpurpose investment" within the applicable meaning of Section 148. "Original Issue" means an issue for new money purposes (or the New Money Portion of a multipurpose issue) all or a portion of the Debt Service on which was or will be paid or provided for with Proceeds of a Refunding Issue. "Pre-Issuance Accrued Interest" means interest on an obligation that accrued for a period not greater than one year before its Issuance Date and that will be paid within one year after such Issuance Date. "Preliminary Expenditures" means any Capital Expenditures that are preliminary expenditures, within the meaning of Regulations § 1.150-2(f)(2) or former Regulations § 1.103- 18(1)(2), as applicable, i.e., architectural, engineering, surveying, soil testing, reimbursement bond issuance, and similar costs that are incurred prior to commencement of acquisition, construction, or rehabilitation of a project other than land acquisition, site preparation, and similar costs incident to commencement of construction. The amount of Preliminary Expenditures may not exceed 20% of the aggregate issue price of the issue that financed or is reasonably expected to finance the project for which the preliminary expenditures are or were incurred. A-6 "Prior Issue" means an issue of obligations all or a portion of the Debt Service on which is paid or provided for with Proceeds of the Issue which is a Refunding Issue. The Prior Issue may be a Refunding Issue. "Private Activity Bond" means (a) obligations of an issue more than 5% of the Proceeds of which are or are to be used for a Private Business Use and more than 5% of the Debt Service on which is or is to be paid from or secured by payments with respect to property, or secured by property, used for a Private Business Use, or (b) obligations of an issue 5% or more of the Proceeds of which are or are to be used to make or finance loans to any Private Person. "Private Business Use" means use (directly or indirectly) in a trade or business carried on by any Private Person other than use as a member of, and on the same basis as, the general public. Any activity carried on by a Private Person (other than a natural person) shall be treated as a trade or business. In the case of a Qualif ed 501(c)(3) Bond, Private Business Use excludes use by a 501(c)(3) Organization that is not an unrelated trade or business activity by such 501(c)(3) Organization within the meaning of Section 513(a). "Private Person" means any natural person or any artificial person, including a corporation, partnership, trust or other entity, that is not a Governmental Unit and that is not acting solely and directly as an officer or employee of or on behalf of the Issuer or another Governmental Unit. "Private Person" includes the United States and any agency or instrumentality of the United States. "Proceeds" means any Sale Proceeds, Investment Proceeds, and Transferred Proceeds of an issue. "Proceeds" do not include Replacement Proceeds. "Qualified Administrative Costs" means reasonable direct administrative costs, (other than carrying costs), such as separately stated brokerage or selling commissions, but not legal and accounting fees, recordkeeping, custody, and similar costs. General overhead costs and similar indirect costs of the Issuer such as employee salaries and office expenses and costs associated with computing the Rebate Amount are not Qualified Administrative Costs. "Qualified 501(c)(3) Bonds" means an issue of bonds that satisfies the requirements of Section 145(a). "Qualified Guarantee" means any guarantee of an obligation that constitutes a "qualified guarantee" within the meaning of Regulations § 1.148-4(f). "Qualified Hedge" means a "qualified hedge" as defined in Regulations § 1.148-4(h)(2). "Rebate Amount" means the excess of the future value, as of any date, of all receipts on Nonpurpose Investments acquired with Gross Proceeds of an issue over the future value, as of that date, of all payments on Nonpurpose Investments acquired with Gross Proceeds of such issue, computed in accordance with Section 148(f) and Regulations § 1.148-3. A-7 "Refunded Bonds" means that portion of a Prior Issue the Debt Service on which, after the Issuance Date of a Refunding Issue, is to be paid from Proceeds or Replacement Proceeds of either such Refunding Issue or the Prior Issue. "Refunding Bonds" means obligations of a Refunding Issue. "Refunding Issue" means an issue the Proceeds of which are or are to be used to pay Debt Service on Refunded Bonds and to finance Issuance Costs, Pre-Issuance Accrued Interest or permitted capitalized interest, a reasonably required reserve or replacement fund, .and similar costs of the Refunding Issue. "Refunding Escrow" means one or more funds established as part of a single transaction, or a series of related transactions, containing Proceeds of a Refunding Issue and any other amounts to provide for payment of Debt Service on one or more Prior Issues. "Refunding Portion" means that portion of a multipurpose issue the Proceeds of which are or are to be used to pay Debt Service on Refunded Bonds and to finance Issuance Costs, Pre-Issuance Accrued Interest or perntted capitalized interest, a reasonably required reserve or replacement fund, and similar costs properly allocable to such Refunding Portion. "Regulations" or "Reg." means applicable Treasury Regulations. "Reimbursement Allocation" means an allocation of the Proceeds of an issue for the Reimbursement of Prior Capital Expenditures that meets each of the following requirements: (a) is evidenced on the books or records of the Issuer maintained with respect to the issue, (b) the allocation entry identifies either actual prior Capital Expenditures, or the fund or account from which the prior Capital Expenditures were paid, and (c) evidences the Issuer's use of Proceeds of such issue to reimburse a Capital Expenditure for a governmental purpose that was originally paid from a source other than the Proceeds of such issue. "Reimbursement of Prior Capital Expenditures" means a Reimbursement Allocation of Proceeds of an issue to a Capital Expenditure paid prior to the Issuance Date of such issue, which satisfies clause (a), (b) or (c), as appropriate. (a) A Reimbursement Allocation satisfies clause (a) if: (i) The Reimbursement Allocation was made from Proceeds of an issue issued prior to March 3, 1992; and (ii) The Capital Expenditure reimbursed was paid in anticipation of reimbursement from the .Proceeds of obligations issued by a Governmental Unit. A-8 (b) A Reimbursement Allocation satisfies clause (b) if the Reimbursement Allocation was made from Proceeds of an issue issued after March 2, 1992 and before July 1, 1993, and if it satisfies either subclause (i) or (ii). (i) subclause (i) is satisfied i£ (1) The Capital Expenditure reimbursed was paid after September 8, 1989 and before March 2, 1992; (2) There is objective evidence that, at the time such Capital Expenditure was paid by the Issuer (except Preliminary Expenditures), the Issuer expected to reimburse such Capital Expenditure with Proceeds of a borrowing (whether taxable ortax-exempt); (3) The expectation stated in subclause (2) was reasonable by being consistent with the budgetary and financial circumstances of the Issuer i.e., no funds from sources other than the Issue were, or were reasonably expected to be, reserved, allocated on a long-term basis, or otherwise set aside by the Issuer or any member of the same Controlled Group as the Issuer pursuant to their budget or financial policies with respect to such Capital Expenditure); (4) The Reimbursement Allocation occurred within 1 year after the later of the date on which such Capital Expenditure was paid or the date on which the property resulting from such Capital Expenditure was placed in service; and (5) The reimbursed amounts were not used within one year after the date of the Reimbursement Allocation to (A) refund obligations issued by any Governmental Unit, (B) create or increase the balance in a sinking fund with respect to any obligation of the Issuer or to replace funds that have been, are being, or will be used for sinking fund purposes, (C) create or increase the balance in a reserve or replacement fund with respect to A-9 any obligation of the Issuer, or to replace funds that have been, are being, or will be so used for reserve or replacement fund purposes, or (D) reimburse any person for any expenditure or payment that was originally paid with proceeds of any obligation of the Issuer (other than an internal borrowing from one of its own funds). (ii) Subclause (ii) is satisfied if (1) Such Capital Expenditure was paid after March 1, 1992; (2) On or before the date such Capital Expenditure was paid by the Issuer (except ' Preliminary Expenditures), the Issuer declared its reasonable intention to reimburse such Capital Expenditure with proceeds of a borrowing (whether taxable or tax-exempt) in a declaration of intent meeting the requirements of former Regulations § 1.103-18(f) or Regulations § 1.150-2(f)(2); and (3) The requirements set forth in subclauses (i)(3), (4) and (5) of this clause (b) are met. (c) A Reimbursement Allocation satisfies clause (c) if the Reimbursement Allocation was made from Proceeds of an issue issued after June 30, 1993 and either subclause (i) or (ii) is satisfied. (i) Subclause (i) is satisfied i£ (1) The Capital Expenditure reimbursed was paid after September 8, 1989 and before March 2, 1992; (2) There is objective evidence that, at the time the Capital Expenditure was paid by the Issuer (except Preliminary Expenditures), the Issuer expected to reimburse such Capital Expenditure with Proceeds of a borrowing (whether taxable or tax-exempt); A-10 (3) The expectation stated in subclause (i)(2) was reasonable by being consistent with the budgetary and financial circumstances of the Issuer; and (4) The Reimbursement Allocation occurred or will occur within 18 months after the later of the date the original expenditure was paid or the date the project financed by such expenditure was placed in service or abandoned, but in no event more than 3 years after the original expenditure was paid. (ii) subclause (ii) is satisfied if: (1) The Capital Expenditure was paid after March 1, 1992; (2) Within 60 days after payment of the original expenditure (except Preliminary Expenditures), the Issuer adopted an official intent for the original expenditure that satisfies Regulations § 1.150-2(e); and (3) The Reimbursement Allocation occurred or will occur within 18 months after the later of the date the original expenditure was paid or the date the project financed by such expenditure was placed in service or abandoned, but in no event more than 3 years after the original expenditure was paid. "Related Party" means, in reference to a Governmental Unit or 501(c)(3) Organization, any member of the same Controlled Group, and, in reference to any person that is not a Governmental Unit or 501(c)(3) Organization, a related person as defined in Section 144(a)(3). "Replacement Proceeds" means with respect to an issue amounts (including any investment income but excluding any Proceeds of that issue) replaced by Proceeds of that issue under Section 148(a)(2). Replacement Proceeds include amounts, other than Proceeds, held in a sinking fund, pledged fund or reserve or replacement fund for the issue. "Sale Date" means with respect to an issue (or a portion of an issue) the first date upon which there is a binding contract in writing with the Issuer for the sale and purchase of the issue (or of respective obligations of the issue if sold by the Issuer on different dates) on specific terms that are not later modified or adjusted in any material respect. A-11 "Sale Proceeds" means that portion of the Issue Price actually or constructively received by the Issuer upon the sale or other disposition of an issue, including any underwriter's compensation withheld from the Issue Price, but excluding Pre-Issuance Accrued Interest. "Same Plan of Financing" is determined based on such factors as the purposes for the obligations and the structure of the financing. For example, generally (A) obligations to finance a single facility or related facilities are part of the same plan of financing; (B) short-term obligations to finance working capital expenditures and long-term obligations to finance capital projects are not part of the same plan of financing; and (C) certificates of participation in a lease and general obligation obligations secured by tax revenues are not part of the same plan of financing. "Spendable Proceeds" means the Net Sale Proceeds of an issue. "Tax-Exempt Obligation" means any obligation or issue of obligations (including bonds, notes and lease obligations treated for federal income tax purposes as evidences of indebtedness) the interest on which is excluded from gross income for federal income tax purposes within the meaning of Section 150, and includes any obligation or any investment treated as a "tax-exempt bond" for the applicable purpose of Section 148. "Tax-Exempt Organization" means a Governmental Unit or a 501(c)(3) Organization. "Temporary Period" means the period of time, as set forth in the Tax Compliance Certificate, applicable to particular categories of Proceeds of an issue during which such category of Proceeds may be invested in Higher Yielding Investments without the issue being treated as arbitrage bonds under Section 148. "Transferred Proceeds" means that portion of the Proceeds of an issue (including any Transferred Proceeds of that issue) that remains unexpended at the time that any portion of the principal of that issue is discharged with the Proceeds of a Refunding Issue and that thereupon becomes Proceeds of the Refunding Issue as provided in Regulations § 1.148-9(b). Transferred Proceeds do not include any Replacement Proceeds. "Variable Yield Issue" means any issue that is not a Fixed Yield Issue. "Working Capital Expenditures" means any costs of a type that do not constitute Capital Expenditures, including current operating expenses. "Yield" has the meaning assigned to it for purposes of Section 148, and means that discount rate (stated as an annual percentage) that, when used in computing the present worth of all applicable unconditionally payable payments of Debt Service and all payments for a Qualified Guarantee, if any, paid and to be paid with respect to an obligation (paid and to be paid during and attributable to the Yield Period in the case of a Variable Yield Issue), produces an amount equal to (a) the Issue Price in the case of a Fixed Yield Issue or the present value of all the Issue Prices during the Yield Period in the case of a Variable Yield Issue, or (b) the purchase price for yield purposes in the case of Investment Property, all subject to the applicable methods of computation A-12 provided for under Section 148, including variations from the foregoing. The Yield on Investment Property in which Proceeds or Replacement Proceeds of an issue are invested is computed on a basis consistent with the computation of Yield on that issue, including the same compounding interval (of not more than one year selected by the Issuer). "Yield Period" means, in the case of the first Yield Period, the period that commences on the Issuance Date and ends at the close of business on the first Computation Date and, in the case of each succeeding Yield Period, the period that begins immediately after the end of the immediately preceding Yield Period and ends at the close of business on the next succeeding Computation Date. The terms "advance refunding", "current refunding", "bond", "obligation", "reasonable retainage", "reasonably required reserve or replacement fund", "reserve or replacement fund", "loan", "sinking fund", "multipurpose issue", "purpose investment", "variable yield obligation", "yield reduction payment", "other replacement proceeds", and other terms relating to Code provisions used but not defined in this Attachment or the Loan Agreement shall have the meanings given to them for purposes of Sections 103 and 141 to 150 unless the context indicates another meaning. (End of Attachment A) A-13