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58-83 Ordinance < , December 19, 1983 The Village Council of the Village of Dublin, Ohio, met in regular session on this date in Council Chambers at 6665 Coffman Road, Dublin, Ohio, with the following members present: David Amorose James Lewis Willard Chambers Barbara t1aurer Catherin Headlee Daniel Sutphen L. E. Thornton M r~ Headlee offered the following ordinance and moved the passage of the same, which was duly seconded by Mr. Chambers . ORDINANCE 58--83 AN ORDINANCE AUTHORIZING THE ISSUANCE OF $1,000,000 INDUSTRIAL DEVELOPMENT FIRST MORTGAGE REVENUE BOND (RUSSEL G. MEANS AND THOMAS C. JACK, BORROWERS) (EMPLOYEE BENEFIT MANAGEMENT CORP. PROJECT) OF THE VILLAGE OF DUBLIN, OHIO, IN ORDER TO ASSIST RUSSEL G. MEANS AND THOMAS C. JACK IN THE FINANCING OF COSTS OF ACQUIRING, IMPROVING, FURNISHING AND EQUIPPING A COMMERCIAL FACILITY; PROVIDING FOR THE PLEDGE OF REVENUES FOR THE PAYMENT OF SAID BOND; AUTHORIZING A LOAN AGREEMENT WITH RESPECT TO THE PROCEEDS DERIVED FROM~THE SALE OF SAID BOND; AUTHORIZING ASSIGNMENTS OF SAID VILLAGE'S INTEREST IN SAID LOAN AGREEMENT AND THE NOTE FROM RUSSEL G. MEANS AND THOMAS C. JACK MADE AND DELIVERED PURSUANT TO SAID LOAN AGREEMENT; AUTHORIZING A BOND PURCHASE AGREEMENT; AND DECLARING AN EMERGENCY. WHEREAS, the Village of Dublin, Ohio (hereinafter called the "Issuer"), a municipal corporation and political subdivision in and of the State of Ohio, is by virtue of the laws of said State, including Section 13 of Article VIII of the Ohio Constitution and Chapter 165 of the Ohio Revised Code, and othe r authorities mentioned therein, authorized and empowered, among other things, ( a ) to issue revenue bonds in order to assist in the financing of costs of industrial, commercial, distribution and research facilities located within the boundaries of the Issuer, (b) to enter into an agreement with the owner of such facilities providing for revenues, as defined in Section 165.01(I) of the Ohio Revised Code, sufficient to pay the principal of and interest and any premium on such revenue bonds, (c) to secure such revenue bonds by a pledge and assignment of such revenues, as provided for herein, and (d) to enact this Bond Legislation and enter into the Agreement and Bond Purchase Agreement (as hereinafter defined) upon the terms and conditions provided therein; and WHEREAS, Russel G. Means and Thomas C. Jack will be the owners of the Project (as hereinafter defined) comprising a commercial facility to be acquired, improved, furnished and equipped and located within the boundaries of the Issuer; and WHEREAS, it is hereby determined by this Legislative Authority that the acquisition, improvement, furnishing and equipping of the Project, including the financing thereof, requires the issuance, sale and delivery of the Project Bond (as hereinafter defin~d) in the original principal amount of $1,000,000; NOW, THEREFORE, BE IT ORDAINED by the Village Council of the Village of Dublin, Ohio: Section 1. Definitions. In addition to the words and terms elsewhere defined in this Bond Legislation or in the Agree- ment and used herein as defined words and terms, the following words and terms as used in this Bond Legis~ation shall have the following meanings, unless the context or use clearly indicates another or different meaning or intent: "Act" means Chapter 165 of the Ohio Revised Code, en- acted and amended pursuant to Section 13 of Article VIII and other provisions of the Ohio Constitution. "Agreement" means the Loan Agreement provided for in Section 9 hereof between the Issuer and the Borrowers, dated as of December 1, 1983. "Assignment of Leases" means the Conditional Assignment of Leases, Rents and Profits granted by the Borrowers to the Bondholder, dated as of December 1, 1983. "Bond Fund" means the "Village of Dublin, Ohio - Russel G. Means and Thomas C. Jack Revenue Bond Account" created by Section 6 hereof. "Bond Fund Holder" means, as of any point in time, BANK ONE, COLUMBUS, NA, Columbus, Ohio, or its successors so desig- nated by the Issuer as the depository at which the Construction Fund and Bond Fund are established. "Bondholder" means, as of any point in time, BANK ONE, COLUMBUS, NA, Columbus, Ohio, or its successors or assigns, as the registered holder of the Project Bond. -2- "Bond Legislation" means this ordinance, as the same may from time to time be modified, amended or supplemented. "Bond Purchase Agreement" means the Bond Purchase Agreement provided for in Section 9 hereof among the Issuer, the Borrowers and the Bondholder, dated as of December 1, 1983. "Bond Service Charges" means, for any time period, the principal, interest and redemption premium, if any, required to be paid by the Issuer on the Project Bond for such time period. "Clerk" means the person at the time incumbent in the office of Clerk of the Legislative Authority, or in the event of the death, disability or absence of such person, then the person duly authorized and legally empowered to perform the duties of such office in such event. "Borrowers" means Russel G. Means and Thomas C. Jack, individuals, and their successors and assigns. "Construction Fund" means the "Village of Dublin, Ohio - Russel G. Means and Thomas C. Jack Construction Account" created by Section 5 hereof. "Date of Taxability" means the date as of which all or any part of the interest on the Project Bond is first required to be included for Federal income tax purposes in the gross income of the Bondholder by reason of the occurrence of any circum- stances on the basis of which a Determination of Taxability shall have been made. "Determination of Taxability" means the receipt by the Bondholder of a private letter ruling or technical advice memor- andum by the Internal Revenue Service in which the Borrowers have participated, or a written opinion addressed to the Borrowers and the Bondholder by an attorney or firm of attorneys of recognized standing on the subject of municipal bonds selected by the Bond- holder and approved by the Borrowers (which approval shall not be unreasonably withheld), to the effect that all or any part of the interest on the Project Bond is includable for Federal income tax purposes in the gross income of the Bondholder [other than because the Bondholder is a "substantial user" of the Project or a "related person" thereto, as those terms are used in Section l03(b) of the Internal Revenue Codel. "Eligible Investment~" means (i) obligations issued or guaranteed by the United States or by any person controlled or supervised by and acting as an instrumentality of the United States pursuant to the authority granted by Congress; (ii) obli- gations issued or guaranteed by any state or political subdivi- sion thereof rated A or higher by Moody's Investors Service, Inc. or by Standard & Poor's Corporation, both of New York, New York, or their successors; (iii) commercial or finance paper which is rated either P-l or A-lor an equivalent by Moody's Investors -3- Service, Inc. or Standard & Poor's Corporation, both of New York, New York, or their successors: ( i v) bankers' acceptances drawn on and accepted by commercial banks, including those of the Bond- holder: (v) certificates of deposit of banks or trust companies, including the Bondholder, organized under the laws of the United States of America or any state thereof, which must have a reported capital and surplus of at least $25,000,000 in dollars of the United States of America; and (vi) repurchase agreements fully secured by obligations of the type specified in (i) above, including repurchase agreements of the Bondholder or any commer- cial bank affiliated with the Bondholder; provided that any such investment or deposit is not prohibited by law. "Executive Officer" means the person at the time incumbent in the office of Village Manager of the Issuer, or in the event of the death, disability or absence of such person, then the person duly authorized and legally empowered to perform the duties of such office in such event. "Fiscal Officer" means the person at the time incumbent in the office of Director of Finance of the Issuer, or in the event of the death, disability or absence of such person, then the person duly authorized and legally empowered to perform the duties of such office in such event. "Interest Payment Date" means a date on which an inter- est payment is due on the Project Bond. "Internal Revenue Code" means the Internal Revenue Code of 1954, as amended, and the existing and proposed Regulations promulgated thereunder. "Legal Officer" means the person at the time incumbent in the office of Director of Law of the Issuer, or in the event of the death, disability or absence of such person, then the person duly authorized and legally empowered to perform the duties of such office in such event. "Legislative Authority" means the Village Council of the Issuer. "Loan" means the loan by the Issuer to the Borrowers of the proceeds from the sale of the Project Bond to the Bondhold- er. "Loan Payments" means the amounts required to be paid by the provisions of Section 2.1 of the Agreement in repayment of the Loan. "Mortgage" means the Open-End Mortgage and Security Agreement granted by the Borrowers to the Bondholder, dated as of December 1, 1983. -4- .-~ "Note" means the Promissory Note executed by the Bor- rowers and delivered to and payable to the order of the Issuer, constituting an unconditional promise of the Borrowers to repay the Loan to the Issuer, which Note is to be initially executed and delivered in substantially the form attached as Exhibit A to the Agreement. "Person", whether or not appearing with initial capi- talization, means natural persons, firms, associations, corpora- tions, partnerships, other business entities and public bodies. "Pledged Receipts" means (a) the Loan Payments, includ- ing the payments of principal of and interest and any premium on the Note, (b) all other moneys received by the Issuer or the Bondholder for the account of the Issuer pursuant to the Agree- ment or with respect to the Loan, (c) the proceeds of the Project Bond, including any moneys deposited in the Construction Fund, (d) any moneys deposited in the Bond Fund, and (e) any moneys constituting income and profit from the investment of the moneys deposited in the Bond Fund and the Construction Fund. "Prime Rate" means the rate of interest per annum an- nounced from time to time by BANK ONE, COLUMBUS, NA as its prime rate of interest at its principal office in Columbus, Ohio, such rate changing automatically from time to time effective as of the effective date of each such announced change. "Project" means the real, personal or real and personal property consisting of a commercial facility as more fully de- scribed in Exhibit B attached to the Agreement, acquired, im- proved, furnished and equipped by the Borrowers and located on the Project Premises, and including the Project Premises. "Project Bond" means the Bond authorized in Section 3 hereof and designated "Village of Dublin, Ohio Industrial Development First Mortgage Revenue Bond (Russel G. Means and Thomas C. Jack, Borrowers) (Employee Benefit Management Corp. Project)", issued by the Issuer pursuant to this Bond Legislation in the original principal amount of $1,000,000. "Project Premises" means the land described in Exhibit C to the Agreement. "Project Purposes" means the purposes of a commercial facility as described in the Act. "State" means the State of Ohio. "Termination Date" means February 1, 1996, subject to earlier termination as provided in the Agreement or herein. Any reference herein to the Issuer, to the Legislative Authority, or to any officers thereof, shall include any entity which succeeds to its or their functions, duties or responsibili- -5- ties pursuant to or by operation of law. Any reference herein to a section or provision of the Ohio Constitution, the Act or the Internal Revenue Code or to a section, provision or chapter of the Ohio Revised Code shall include such section or provision or chapter as from time to time amended, modified, revised, supple- mented, or superseded; provided, however, that no such change in the Constitution, laws or regulations (a) shall alter the obliga- tion to pay the Bond Service Charges in the amounts and manner, at the times, and from the sources provided in the Bond Legisla- tion, except as otherwise herein permitted, or (b) shall be deemed applicable by reason of this provision if such change would in any way constitute an impairment of the rights of the Issuer, the Borrowers or the Bondholder under the Agreement. References herein to any document or documents are and shall be references to such document or documents as the same may from time to time be duly modified, amended, supplemented, renewed or extended in accordance with the terms thereof. Unless the context shall otherwise indicate, words of the masculine gender shall be deemed and construed to include correlative words of the feminine and neuter genders, words im- porting the singular number shall include the plural number, and vice versa, and the terms "hereof", "hereby", "hereto", "here- under", and similar terms, mean this Bond Legislation. Section 2. Determinations of the Legislative Authority. The Legislative Authority hereby determines: (a) that the real, personal or real and personal prop- erty acquired, improved, furnished and equipped by the Borrowers by purchase, construction and in- stallation through the Loan is useful to the Project, and the utilization of such property in the creation and location of the Project is eco- nomically sound; and (b) the Project is a "project" as that term is defined in Section 165.01 of the Ohio Revised Code, is consistent with the purposes of Section 13 of Article VIII of the Ohio Constitution and the Act and will benefit the people of the Issuer by crea- ting jobs and employment opportunities and promo- ting the commercial and economic development of the Issuer and the State. Section 3. Authorization and Terms of Project Bond. It is hereby determined to be necessary to, and the Issuer shall, issue, sell and deliver, as provided and authorized herein and pursuant to the authority of the Act, the Project Bond in the amount of One Million Dollars ($1,000,000) for the purpose of making a loan to assist the Borrowers in the financing of costs of acquiring, improving, furnishing and equipping the Project for the Project Purposes, including but not limited to costs -6- incidental thereto and to the financing thereof. The Project Bond shall be designated "Village of Dublin, Ohio Industrial Development First Mortgage Revenue Bond (Russel G. Means and Thomas C. Jack, Borrowers) (Employee Benefit Management Corp. Project)". The Project Bond shall be issued in fully registered form and shall be in the form of Exhibit A attached hereto, made a part hereof and incorporated herein by reference. In the event of transfer of the Project Bond, at the request of the transferee and upon surrender of the Project Bond to the Fiscal Officer, the Issuer shall execute and deliver to the transferee a new Project Bond registered in the name of the transferee, in the principal amount equal to the outstanding principal amount of the Project Bond surrendered and dated as of the date to which interest has been paid on the Project Bond surrendered. Bond Service Charges on the Project Bond shall be pay- able in lawful money of the United States of America by check or draft mailed or delivered to the Bondholder at its principal office by the Bond Fund Holder, without deduction for services of any paying agent, and without presentation of the Project Bond by the Bondholder to the Bond Fund Holder, except presentation shall be required where a payment or prepayment of principal will dis- charge all indebtedness of the Issuer evidenced by the Project Bond. The Project Bond shall be executed by the Executive Officer and by the Fiscal Officer and shall bear the seal of the Issuer. In case any officer whose signature shall appear on the Project Bond shall cease to be such officer before the issuance or delivery of the Project Bond, such signature shall neverthe- less be valid and sufficient for all purposes, the same as if he had remained in office until that time. The Project Bond shall express on its face the purpose for which it is issued and such other statements or legends as may be required by law. So long as the Project Bond remains outstanding, the Issuer will cause to be maintained and kept, by and at the office of the Fiscal Officer, books for the registration and transfer of the Project Bond. The Project Bond shall be a negotiable instru- ment within the meaning of Chapter 165 of the Ohio Revised Code, subject to applicable provisions for registration, and shall be transferred in accordance with applicable securities laws. The Project Bond may be transferred only upon the books kept for the registration and transfer of the Project Bond, upon surrender thereof at the office of the Fiscal Officer together with an assignment duly executed by the registered holder there- of, or its duly authorized attorney, in such form as shall be satisfactory to the Fiscal Officer. Upon the transfer of the Project Bond and upon request of the Fiscal Officer, the Issuer -7- _.. shall execute in the name of the transferee a new fully regis- tered Project Bond, such execution on behalf of the Issuer to be by the Executive Officer and by the Fiscal Officer of the Legislative Authority and to bear the seal of the Legislative Authority. The Issuer and the Fiscal Officer may make a charge for every such transfer of the Project Bond sufficient to reimburse them for any tax, fee or other governmental charge required to be paid with respect to such transfer and to reim- burse them for all other costs and expenses incurred by them in connection with such transfer, and such charge or charges shall be paid before any such new Project Bond shall be delivered. In the event a Project Bond is mutilated, lost, wrong- fully taken or destroyed, the Issuer shall execute in the name of the registered holder of such mutilated, lost, wrongfully taken or destroyed Project Bond a new fully registered Project Bond of like date and upon like terms as that mutilated, lost, wrongfully taken or destroyed, such execution on behalf of the Issuer to be by the Executive Officer and by the Fiscal Officer of the Legislative Authority and to bear the seal of the Legislative Authority; provided that, in the case of any mutilated Project Bond, such mutilated Project Bond shall first be surrendered to the Fiscal Officer, and in the case of any lost, wrongfully taken or destroyed Project Bond, there shall first be furnished to the Fiscal Officer and to the Borrowers evidence of such loss, wrongful taking or destruction satisfactory to the Fiscal Officer and the Authorized Borrower Representative (as defined in the Agreement), together with indemnity satisfactory to them. The Fiscal Officer and the Issuer may charge the registered holder of such mutilated, lost, wrongfully taken or destroyed Project Bond with their reasonable fees and expenses in connection with their action taken pursuant to this paragraph. Each new Project Bond issued pursuant to this Section 3 shall, subject to the conditions thereof, constitutes a contrac- tual obligation of the Issuer in substitution for all previously issued Project Bonds and shall be entitled to all of the bene- fits, and subject to all of the conditions, of the Bond Legisla- tion, the Agreement and all documents given as security for the payment, or otherwise in connection with the issuance, of the Project Bond. Section 4. Security Pledged for Project Bond. As provided herein, the Project Bond shall be payable by the Issuer solely from the Pledged Receipts and shall be secured by a pledge of and lien on moneys deposited in the Construction Fund and Bond Fund and a pledge and assignment of other moneys constituting Pledged Receipts, and further secured by the pledge and assign- ment of the Note and the pledge and assignment of the Agreement, and further secured by the Mortgage and the Assignment of Leases. Anything in the Bond Legislation, the Project Bond or the Agreement to the contrary notwithstanding, neither the Bond Legislation, nor the Project Bond, nor the Agreement shall con- stitute a debt or a pledge of the faith and credit of the Issuer -8- or of the State or any political subdivision thereof, and the Bondholder shall not have the right to have taxes levied by the General Assembly of the State or the taxing authority of the Issuer or of any other political subdivision of the State for the payment of the principal of, premium, if any, on or interest on the Project Bond, but the Project Bond is payable by the Issuer solely from the Pledged Receipts, and the Project Bond shall contain on the face thereof a statement to that effect; provided, however, that nothing herein shall be deemed to prohibit the Issuer, of its own volition, from using to the extent it is lawfully authorized to do so, any other resources or revenues for the fulfillment of any of the terms, conditions or obligations of the Agreement, this Bond Legislation or the Project Bond. Section 5. Sale of Project Bond; Allocation of Purchase Price. The Executive Officer and the Fiscal Officer of the Legislative Authority are, hereby authorized and directed to offer for sale the Project Bond to the Bondholder at a purchase price of $1,000,000 in accordance with the terms and provisions of this Bond Legislation and the Bond Purchase Agreement, and to make the necessary arrangements on behalf of the Issuer with the Bond- holder to establish the date, location, procedure and conditions for the delivery of the Project Bond to the Bondholder. The Executive Officer and the Fiscal Officer of the Legislative Authority further are hereby authorized and directed to take all steps necessary to effect due delivery of and security for the Project Bond under the terms of this Bond Legislation and the Bond Purchase Agreement, and it is hereby determined that the aforesaid purchase price and the interest rate for the Project Bond and the manner of sale, as provided in this Bond Legisla- tion, are in the best interest of the Issuer and consistent with all legal requirements. The Clerk shall furnish to the Bond- holder true transcripts of proceedings had with reference to the issuance of the Project Bond, certified by the Clerk, along with such information from the Clerk's records as is necessary to determine the regularity and validity of the issuance of the Project Bond. There is hereby created by the Issuer and ordered main- tained, as a separate deposit account (except when invested as hereinafter provided) in the custody of Bond Fund Holder, the Construction Fund which shall be designated "Village of Dublin, Ohio - Russel G. Means and Thomas C. Jack Construction Account". The proceeds of the Project Bond shall be deposited in the Construction Fund for disbursement as the Loan to the Borrowers provided for in the Agreement. Moneys in the Construction Fund shall be disbursed by Bond Fund Holder on written order signed by the Borrowers in accordance with the provisions of the Agreement and as otherwise provided in the Agreement and the Note, and Bond Fund Holder is hereby authorized and directed to issue its check for each disbursement required by the provisions of the Agreement. The moneys to the credit of the Construction Fund, pending application thereof as above set forth, shall be subject -9- to a lien and charge in favor of Bondholder, but only to the extent of its interest therein. Section 6. Source of Payment - Bond Fund. There is hereby created by Issuer and ordered maintained, as a separate deposit account (except when invested as hereinafter provided) in the custody of Bond Fund Holder, the Bond Fund which shall be designated "Village of Dublin, Ohio - Russel G. Means and Thomas C. Jack Revenue Bond Account". The Bond Fund (and accounts, if any, therein provided for in the Agreement) and the moneys and investments therein are hereby pledged to and shall be used solely and exclusively for the payment of Bond Service Charges as they fall due at stated maturity, by acceleration or by redemption, all as provided herein and in the Project Bond and the Agreement, provided that no part thereof shall be used to redeem the Project Bond prior to maturity, unless the Borrowers should so direct. The moneys to the credit of the Bond Fund, pending application thereof as set forth below, shall be subject to a lien, charge and security interest in favor of the the Bond- holder. As provided in the Agreement, Loan Payments sufficient in time and amount to pay the Bond Service Charges as they come due are to be paid by the Borrowers directly to the Bond Fund Holder for the account of the Issuer and deposited in the Bond Fund. Under the provisions of the Agreement, payments with re- spect to the Note received by the Bond Fund Holder shall be deposited into the Bond Fund for the account of the Issuer and shall constitute Loan Payments. The Bondholder shall have the right to be paid, and to require withdrawal, from the Bond Fund any amount or amounts then due and payable upon the Project Bond, and Bond Fund Holder is hereby authorized and directed to issue its check or draft for each of the payments to be made from the Bond Fund; provided, however, that no such withdrawal of any payment of Bond Service Charges shall be made by the Bond Fund Holder prior to the date each Bond Service Charge is to be paid in accordance with the terms of the Project Bond. Issuer, by any member of the Legisla- tive Authority, shall take all such actions and sign and deliver all such documents as Bond Fund Holder may from time to time require to provide the appropriate authorization for Bond Fund Holder to make the transfers and payments which it is authorized to make pursuant to this Bond Legislation. There shall be deposited into the Bond Fund (and cre- dited, if required by the Agreement, to appropriate accounts therein), as and when received, (a) all Loan Payments and (b) all other Pledged Receipts, except those amounts required by the Agreement to be deposited in the Construction Fund or any other separate insurance or condemnation proceeds account. The Issuer hereby covenants and agrees that so long as the Project Bond is outstanding, the Issuer will deposit or cause -10- to be deposited in the Bond Fund Pledged Receipts sufficient in time and amount to pay the Bond Service Charges as the same be- come due and payable, and to this end the Issuer covenants and agrees that, so long as the Project Bond is outstanding, the Issuer will diligently and promptly proceed in good faith and use its best efforts to enforce the Agreement, and that, should there be an Event of Default (as defined in the Agreement), the Issuer shall fully cooperate with the Bondholder to protect fully the rights and security hereunder of the Bondholder. Nothing herein shall be construed as requiring the Issuer to use or apply to the payment of Bond Service Charges any funds or revenues from any source other than Pledged Receipts. Section 7. Covenants of Issuer. In addition to other covenants of the Issuer in this Bond Legislation contained, the Issuer further covenants and agrees as follows: (a) Payment of Bond Service Charges. The Issuer will, solely from Pledged Receipts, payor cause to be paid the Bond Service Charges on the dates, at the places and in the manner provided herein, in the Project Bond and in the Agreement. (b) Performance of Covenants, Authority and Actions. The Issuer will at all times faithfully observe and perform all agreements, covenants, undertakings, stipulations and provisions contained in the Bond Legislation, in the Agreement, the Bond Purchase Agreement, in the conditional assignments of the Note and of the Agreement and in the Project Bond executed and deli- vered hereunder and in all proceedings of the Issuer pertaining to the Project Bond, the Bond Purchase Agreement, the Agreement or the conditional assignments of the Note and of the Agree- ment. The Issuer warrants and covenants that it is, and upon delivery of the Project Bond will be, duly authorized by the Constitution and laws of the State, including particularly and without limitation the Act, to issue the Project Bond and to execute the Bond Purchase Agreement, the Agreement and the con- ditional assignments of the Note and of the Agreement, to provide the security for payment of the Bond Service Charges in the man- ner and to the extent herein and in the Bond Purchase Agreement set forth; and that all actions on the Issuer's part for the issuance of the Project Bond and execution and delivery of the Bond Purchase Agreement, the Agreement, the Project Bond and conditional assignments of the Note and of the Agreement have been or will be duly and effectively taken; and that the Project Bond in the hands of the Bondholder will be a valid and enforce- able special obligation of Issuer according to the terms there- of. Each provision of the Bond Legislation, Bond Purchase Agree- ment, Agreement, Project Bond and the conditional assignments of the Note and of the Agreement is binding upon each such officer of the Issuer as may from time to time have the authority under law to take such actions as may be necessary to perform all or any part of the duties required by such provision; and each duty of the Issuer and of its officers undertaken pursuant to such proceedings for the Project Bond is established as a duty of the -11- Issuer and of each such officer having authority to perform such duty, specifically enjoined by law and resulting from an office, trust, or station within the meaning of Section 2731.01 of the Ohio Revised Code, providing for enforcement by writ of manda- mus. (c) Pledged Receipts. Except as otherwise provided in the Bond Legislation, Bond Purchase Agreement, Agreement, Project Bond and conditional assignments of the Note and of the Agree- ment, the Issuer will not create or suffer to be created any debt, lien or charge thereon, or make any pledge or assignment of or create any lien or encumbrance upon the Pledged Receipts, including the moneys in the Bond Fund and Reimbursement Fund, other than the pledge and assignment thereof under the Bond Legislation, Bond Purchase Agreement, Agreement and conditional assignments of the Note and of the Agreement. (d) Recordings and Filings. The Issuer, at the expense of the Borrowers, will cause (to the extent required by the laws of the State to perfect such instruments and/or the liens created thereby) all necessary financing statements, amendments thereto, continuation statements and instruments of similar character relating to the pledges and assignments made by it to secure the Project Bond, to be recorded and filed in such manner and in such places and to the extent required by law in order to fully preserve and protect the security of the Bondholder. (e) Inspection of Project Books. All books and docu- ments in the Issuer's possession relating to the Project or the Pledged Receipts shall at all times be open to inspection by such accountants or other agents of the Bondholder as the Bondholder may from time to time designate. ( f ) Rights under Agreement. The Bondholder, in its name or in the name of the Issuer, may, for and on behalf of Issuer and itself, enforce all rights of the Issuer and all obli- gations of the Borrowers under and pursuant to the Agreement, the ",' Note, the Bond Purchase Agreement, the Mortgage and all other instruments given by the Issuer and the Borrowers to secure pay- ment of the Project Bond whether or not the Issuer is in default of the pursuit or enforcement of such rights and obligations. (g) Maintenance of Agreement. The Issuer shall do all things and take all actions on its part necessary to comply with the obligations, duties and responsibilities on the part of the Issuer under the Agreement, and will take all actions within its authority to maintain the Agreement in effect in accordance with the terms thereof and to enforce and protect the rights of the Issuer thereunder, including actions at law and in equity, as may be appropriate. (h) Arbitrage Provisions. The Issuer will restrict the use of the proceeds of the Project Bond in such manner and to such extent, if any, as may be necessary, after taking into -12- ..-- account reasonable expectations at the time the Project Bond is delivered to the Bondholder, so that it will not constitute an arbitrage bond under Section I03(c) of the Internal Revenue Code. The Executive Officer and the Fiscal Officer are author- ized and directed, alone or in conjunction with any other officer, employee, consultant or agent of the Legislative Authority, or the Borrowers, and upon receipt of satisfactory indemnities, to give an appropriate certificate of the Issuer, for inclusion in the transcript of proceedings for the Project Bond, setting forth the reasonable expectations of the Issuer regarding the amount and use of all such proceeds and the facts and estimates on which they are based, such certificate to be premised on the reasonable expectations and the facts and estimates on which they are based as provided by the Borrowers, all as of the date of delivery of and payment for the Project Bond. Section 8. Investment of Bond Fund and Construction Fund. Moneys in the Bond Fund and the Construction Fund shall be invested and reinvested by Bond Fund Holder in any Eligible Investments, in accordance with and subject to any orders of the Authorized Borrower Representative with respect thereto, which orders may be initially oral or written, but if oral, shall be promptly confirmed in writing, provided that investment of moneys in the Bond Fund shall mature or be redeemable at the option of the Bond Fund Holder at the times and in the amounts necessary to provide moneys to pay Bond Service Charges as they fall due at stated maturity or by redemption, and that each investment of monies in the Construction Fund shall in any event mature or be redeemable at the option of the Bond Fund Holder at such time as may be necessary to make timely disbursements from the Construc- tion Fund. Subject to any such orders with respect thereto, the Bond Fund Holder may from time to time sell such investments and reinvest the proceeds thereform in Eligible Investments maturing or redeemable as aforesaid. Any such investments may be pur- chased from the Bond Fund Holder and the Bondholder. The Bond Fund Holder shall sell or redeem investments standing to the credit of the Bond Fund to produce sufficient moneys hereunder at the times required for the purpose of paying Bond Service Charges when due as aforesaid, and shall do so without necessity for any order on behalf of the Issuer and without restriction by reason of any such order. An investment made from moneys credited to the Bond Fund or the Construction Fund shall constitute part of that respective Fund and such respective Fund shall be credited with all proceeds of sale and income from such investment, and any loss resulting from such investment shall be charged to the respective Fund. For purposes of this Bond Legislation, such instruments shall be valued at face amount or market value, whichever is less. Section 9. Bond Purchase Agreement, Agreement and Conditional Assignments. In order to better secure the payment of the Bond Service Charges as the same shall become due and payable, the Executive Officer and the Fiscal Officer are hereby -13- . authorized and directed to execute and deliver the Bond Purchase Agreement, the Agreement and the conditional assignments of the Note and of the Agreement in substantially the forms submitted to the Issuer, which instruments are hereby approved, with such changes therein not inconsistent with this Bond Legislation and not substantially adverse to the Issuer as may be permitted by the Act and approved by the officers executing the same. The approval of such changes by said officers, and the fact that such are not substantially adverse to the Issuer, shall be conclu- sively evidenced by the execution of the Bond Purchase Agreement, the Agreement and the conditional assignments of the Note and of the Agreement by such officers. Such officers are further auth- orized and directed to endorse and deliver the Note to the Bond- holder; provided, however, that such endorsement shall (a) be made only in connection with the transfer to the Bondholder of the security interest in the Note granted under the aforesaid conditional assignment of the Note, (b) be subject to the condi- tions of said conditional assignment and (c) give to the Bond- holder no right, except as provided in said conditional assign- ment, to receive payments to be made upon the Note. Section 10. Other Documents. The Executive Officer and Fiscal Officer are hereby further authorized and directed to execute financing statements, other assignments and any other instruments as are, in the opinion of the Legal Officer and bond counsel to Issuer, necessary to perfect the pledges set forth herein and to consummate the transactions provided for in the Bond Purchase Agreement and Agreement, including, but not limited to, Form 8038 to be filed by the Issuer with the Internal Revenue Service. Section 11. Compliance with Section 121.22, Ohio Revised Code. It is hereby found and determined that all formal actions of the Legislative Authority concerning and relating to the passage of this Bond Legislation were taken in an open meet- ing of the Legislative Authority, and that all deliberations of the Legislative Authority and of any of its committees, if any, that resulted in such formal action, were taken in meetings open to the public, in full compliance with applicable legal require- ments, including Section 121.22 of the Ohio Revised Code. Section 12. Prevailing Rates of Wages. All laborers and mechanics employed on the Project shall be paid at the pre- vailing rates of wages of laborers and mechanics for the class of work called for by the Project, which wages shall be determined in accordance with the requirements of Chapter 4115 of the Ohio Revised Code, for determination of prevailing wages, provided that should the Borrowers or other non-public user beneficiary of the Project undertake, as part of the Project, construction to be performed by their regular collective bargaining unit employees who are covered under a collective bargaining agreement which was in existence prior to the date of the commitment instrument undertaking to issue the Project Bond, then, in that event, the rate of pay provided under the collective bargaining agreement may be paid to such employees. -14- >--.. - Section 13. Emergency--Effective Date. This Bond Legislation is hereby declared to be an emergency measure, the immediate passage of which is necessary for the preservation of the public peace, health and safety and for the further reason this Bond Legislation must be immediately effective in order to eliminate the hazards and expenses to the Issuer and its people resulting in the lack of job opportunities; wherefore, this Bond Legislation shall take effect and be in force immediately upon its passage. Passed by Council the 19th day of December, 1983. Signed: Village ~ 1,1.. ",tlly.1l.. Village of Dublin, Ohio ATTEST: Clerk of Village Council of the Village of Dublin, Ohio Approved as to form: Law Director Village of Dublin, Ohio I hereby certify that the foregoing is a true and correct copy of the original ordinance as passed by the Village Council at its regular meeting held on December 19, 1983. Clerk Village Council Dated: December 19, 1983 -15- EXHIBIT A UNITED STATES OF AMERICA STATE OF OHIO VILLAGE OF DUBLIN INDUSTRIAL DEVELOPMENT FIRST MORTGAGE REVENUE BOND (RUSSEL G. MEANS AND THOMAS C. JACK, BORROWERS) (EMPLOYEE BENEFIT MANAGEMENT CORP. PROJECT) No. R-1 $1,000,000 The VILLAGE OF DUBLIN, OHIO (hereinafter called the "Issuer"), a municipal corporation and political subdivision organized and existing under and by virtue of the Constitution and laws of the State of Ohio, for value received, promises to pay to BANI< ONE, COLUMBUS, N.A. , or registered assigns, but solely from the sources and in the manner hereinafter set forth, the principal sum of ONE MILLION DOLLARS ($1,000,000) with interest thereon from the date hereof at the rate of ten and one-half percent (10 1/2%) per annum, except as otherwise provided herein. Payments hereon shall be made as follows: (A) Interest only, from December , 1983, through January 31, 1984, both dates inclusive, shall be due and payable on the first day of February, 1984. (B) Thereafter, the said principal and interest shall be due and payable in one hundred forty-four (144) equal installments of Twelve Thousand Two Hundred Forty-One and Forty-One/Hundredths Dollars ($12,241.41) each, beginning on the first day of March, 1984, and continuing on the first day of each calendar month thereafter through March 1, 1996. On February 28, 1996, the entire principal balance, plus accrued interest, shall be paid in full, subject to the provisions hereinafter contained pertaining to prepayment. If a Determination of Taxability (as defined in the Loan Agreement hereinafter described) shall be made or occur, the interest rate on the principal amount outstanding hereunder on and after the Date of Taxability (as defined in the Loan Agreement) shall be increased automatically to a rate per annum (hereinafter called the "Taxable Interest Rate") equal to the sum of the Prime Rate plus percent (_%) per annum, and the Taxable Interest Rate shall continue for so long as any principal amount remains outstanding hereunder. The Taxable Interest Rate shall be determined initially as of the Date of Taxability and thereafter shall change automatically from time to time effective as of the effective date of each change in the Prime Rate and shall be computed on the basis of the actual number of days elapsed divided by a year of 360 days. As used herein, the term "Prime Rate" shall mean the rate of interest per annum announced from time to time by BANK ONE, COLUMBUS, NA as its prime rate of interest at its principal office in Columbus, Ohio, such rate changing from time to time effective as of the effective date of each such announced change. All payments hereunder shall be applied first to the payment of interest on the outstanding principal balance and the remainder of said payments shall be credited in reduction of principal. If a Determination of Taxability shall be made or occur, the Issuer will pay to the holder or a former holder of this Bond, immediately on demand by said holder or former holder, moneys in an amount equal to (a) the difference between (i) the amount of interest which would have been received by the holder or a former holder of this Bond if interest payable hereon during the Payment Period (as hereinafter defined) had been paid at the Taxable Interest Rate and (ii) the amount of interest theretofore paid to such holder or former holder during the Payment Period, and (b) all penalties and interest paid or payable by the holder or a former holder hereof as a result of a Determination of Taxability. As used herein, the term "Payment Period" shall mean the period beginning with the Date of Taxability and ending with the Loan Payment Date (as defined in the Bond Legislation hereinafter described) immediately preceding the date of the demand pursuant to the first sentence of this paragraph. The Issuer shall make the payment to the holder or a former holder hereof required by this paragraph, notwithstanding that this Bond was redeemed in full prior to a Determination of Taxability but after the Date of Taxability, and in that event, the ending date of the Payment Period shall be the date of redemption of this Bond in full. This Project Bond shall not be redeemed in part. This Project Bond is subject to redemption in whole at the option of the Issuer, pursuant to the request of the Borrowers, at any time prior to final stated maturity at a redemption price equal to , plus accrued interest to the date of redemption. Such payment shall be accompanied by the payment of all Additional Payments (as defined in the Agreement, as hereinafter defined) due but not theretofore paid pursuant to Section 2.2 of the Agreement. In order to exercise the option granted hereby, the Borrowers, on behalf of the Issuer, shall give written notice to the Bondholders, as hereinafter defined, which notice shall specify therein the date on which such redemption is to be made, which -2- \-'." date shall be not less than thirty (30) days from the date such redemption notice is delivered to the Bondholder. The principal sum of this Bond and interest thereon are payable in lawful money of the United States of America, without deduction for services of the paying agent, by check or draft mailed or delivered to the registered holder hereof at its principal office by the Bond Fund Holder or its successor (as provided in Section 2.4 of the Loan Agreement), without presen- tation of this Bond by said holder to the Bond Fund Holder, except presentation shall be required where a payment or prepay- ment of principal will discharge all indebtedness of the Issuer evidenced by this Bond. This Bond is a duly authorized issue of Industrial Development First Mortgage Revenue Bond (Russel G. Means and Thomas C. Jack, Borrowers) (Employee Benefit Management Corp. Project) (the "Project Bondh), issued pursuant to an ordinance passed by the Village Council of the Issuer (the "Bond Legis- lation") and for the purpose of making a loan to Russel G. Means and Thomas C. Jack, (the "Borrowers), for costs incurred in acquiring, improving, furnishing and equipping real and personal property comprising a commercial facility located within the boundaries of the Issuer, which facility will be owned by the Borrowers and leased to Employee Benefit Management Corp. (the "Project") . The proceeds of the Project Bond will be loaned to the Borrowers pursuant to a Loan Agreement, dated as of December 1, 1983 (hereinafter, as the same may be amended according to its terms, called the "Agreement", and the loan made pursuant to the Agreement is hereinafter called the "Loan"), duly made and entered into between the Issuer and the Borrowers in order to promote the economic welfare of the people of the State of Ohio and of the Issuer by creating or preserving jobs and employment opportunities. As provided in the Agreement, the obligation of the Borrowers to repay the Loan is evidenced by the Agreement and by a Promissory Note (the "Note") in the original principal amount of $1,000,000, made and executed by the Bor- rowers and delivered to and payable to the order of the Issuer. Pursuant to the Bond Legislation, which Bond Legis- lation is on file in the office of the Clerk of the Village Council of the Issuer, and to the Conditional Assignments of the Agreement and the Note, both dated as of December 1, 1983, the Issuer has pledged and assigned and granted a security interest in the Issuer's right, title and interest in, to and under the Agreement and the Pledged Receipts (as defined in the Agreement), being, generally, the loan payments, premiums and other charges payable to the Issuer by the Borrowers under and pursuan~ to the Agreement and the Note, to the holder of this Project Bond as security for its obligation to pay the principal of and interest and any premium on this Project Bond. Reference is hereby made to the Bond Legislation for a more complete description of the -3- '. provisions, among others, with respect to the nature and extent of the security, the rights, duties and obligations of the Issuer and the holder of this Project Bond and the terms and conditions upon which this Project Bond is issued and secured, to all of the provisions of which Bond Legislation the holder of this Project Bond, by the acceptance hereof, assents. This Project Bond is issued pursuant to Section 13 of Article VIII of the Constitution of the State of Ohio and to the laws of the State, particularly Chapter 165 of the Ohio Revised Code, and the Bond Legislation. This Project Bond' is a special obligation of the Issuer, and the principal of and interest and any premium on this Project Bond (hereinafter collectively called r__ ~- the "Bond Service Charges") are payable solely from, and such payment is secured by a pledge of and lien on, the Construction Fund and the Bond Fund established by and as provided in the Bond Legislation and the Pledged Receipts (being, generally, the payments and other amounts payable under the Agreement in repayment of the Loan and the income and profit from the invest- ment of such payments), and are not otherwise an obligation of the Issuer. THIS PROJECT BOND IS NOT SECURED BY ANY OBLIGATION OR PLEDGE OF ANY MONEYS RECEIVED, OR TO BE RECEIVED, FROM TAXATION LEVIED BY THE GENERAL ASSEMBLY OR ANY POLITICAL SUBDIVI- SION OR TAXING DISTRICT OF THE STATE OF OHIO AND DOES NOT NOW AND SHALL NEVER REPRESENT OR CONSTITUTE A DEBT OR PLEDGE OF THE FAITH AND CREDIT OF THE ISSUER OR OF THE STATE OF OHIO OR ANY POLITICAL SUBDIVISION THEREOF. Payments sufficient for the prompt payment when due of the Bond Service Charges are required by the Agree- ment to be paid by the Borrowers to the Bond Fund Holder for the account of the Issuer and deposited in a special account created by the Issuer and designated "Village of Dublin, Ohio - Russel G. Means and Thomas C. Jacks Revenue Bond Account", which has been duly pledged for that purpose. This Project Bond is transferable by the registered holder hereof, in person or by his attorney duly authorized in writing at the office of the Director of Finance of the Issuer, upon presentation hereof to the Director of Finance, all subject to the terms and conditions provided in the Bond Legislation. This Project Bond is transferable only in accordance with applicable securities laws and is a negotiable instrument as provided by Section 165.03 of the Ohio Revised Code. This Project Bond is subject to mandatory redemption by the Issuer at any time prior to final stated maturity in whole at a redemption price of 100% of the outstanding principal amount thereof plus accrued interest to the redemption date if and when the Agreement shall have become void or unenforceable or impos- sible of performance in accordance with the intent and purpose of the parties as expressed in the Agreement by reason of any changes in the Constitution of the State of Ohio or the Con- stitution of the United States of America or by reason of -4- . . legislative or administrative action (whether state or Federal) or any final decree, judgment or order of any court or adminis- trative body (whether state or Federal) entered after the contest thereof by the Issuer or the Borrowers in good faith to such extent that the Note and the obligations evidenced thereby are no longer enforceable by the holder thereof. Any such redemption shall be made on a date selected by the Borrowers but not more than ninety (90) days following the effective date of any such constitutional amendment, legislation, administrative action or final decree, judgment or order. As provided in the Bond Legislation, the registered holder of this Project Bond is entitled to enforce the provisions of the Mortgage and the Assignment of Leases (both as defined in the Agreement) and to institute, appear in or defend any suit, action or proceeding to enforce any provisions of the Agreement and the Bond Legislation and to take any action with respect to any Event of Default (as defined in the Agreement). If ( I ) any payment to be made under this Project Bond should not be made on the date provided for such payment to be made hereunder amd should remain unpaid for a period of ten (10) days thereafter, or ( I I ) any other Event of Default should occur, then for so long thereafter as such Event of Default shall continue uncured, the registered holder of this Project Bond (hereinafter called the "Bondholder") may, at its option, do either one or both of the following: ( 1) declare, by giving notice to the Borrowers and the Issuer in accordance with the provisions of the Agreement, the unpaid principal balance from time to time outstanding to bear interest at a rate which shall be the sum of the rate of interest otherwise then payable hereunder plus percent (_%) per annum from the date on which such Event of Default shall have first occurred through the date on which such Event of Default shall have been cured, and (2 ) declare, without notice or demand (said notice and demand being hereby expressly waived by the Issuer), the entire unpaid principal sum herein agreed to be paid, together with any interest accrued thereon but not theretofore paid, to be immedi- ately due and payable and to thereafter bear interest at a rate which shall be the sum of the rate of interest otherwise payable hereunder plus percent (_%) - provided, per annum; however, that: (A) If the Bondholder shall have proceeded to enforce any right hereunder or under any instrument securing payment, or otherwise executed in connection with the issuance, of this Project Bond and such proceeding shall have been discontinued or abandoned for any reason or shall have been determined adversely, then and in every such event the Issuer and the Bondholder shall be reinstated to their former positions and rights hereunder, -5- ~ . . . respectively, and all rights, remedies and powers of the Bondholder shall continue unimpaired as before; (B) At any time, the Bondholder may, in its discre- tion, waive its rights hereunder with respect to any Event of Default, provided that no such waiver shall apply to any other Event of Default whether prior or subsequent thereto; and (C) At any time, the Bondholder may, in its discre- tion, rescind any declaration that this Project Bond be immediately due and payable, whereupon the Issuer and the Bondholder shall be reinstated to their former positions and rights hereunder, respectively, and all rights, remedies and powers of the Bondholder shall continue unimpaired as before, provided that no such rescission shall apply to any other declaration, whether prior or subsequent thereto. This Project Bond shall not constitute the personal obligation, either jointly or severally, of the members of the Village Council, or the officers, officials or employees of the Issuer. IT IS HEREBY CERTIFIED AND RECITED that all acts, conditions and things necessary to be done or performed by the Issuer or to have happened precedent to and in the issuing of this Project Bond in order to make it a legal, valid and binding special obligation of the Issuer in accordance with its terms, and precedent to and in the execution and delivery of the Agreement, have been done and performed and have happened in regular and due form as required by law; that the Issuer has, in its behalf, received payment in full for this Project Bond; and that this Project Bond does not exceed or violate any constitu- tional or statutory limitation. IN WITNESS WHEREOF, the Village of Dublin, in the State of Ohio, has caused this Project Bond to be executed in the name of the Issuer by the manual signatures of its Village Manager and its Director of Finance and the seal of the Issuer to be affixed hereto. Dated: ~~LhdU, 19/3 VILLAGE OF DUBLIN, OHIO 1 hers!'; tb:1t ~0t~~ By '/-l c~. i~ Villa e Manager ,.~;~ " c"i:/a:;"U4-':V~&.J [SEAL] -6-