58-83 Ordinance
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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.
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"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
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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.
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"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-
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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
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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
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_..
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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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,
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.
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]
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