073-86 Ordinance
ORDINANCE NO. 73-86
AN ORDINANCE AUTHORIZING THE ISSUANCE OF $2,100,000
ADJUSTABLE RATE INDUSTRIAL DEVELOPMENT REVENUE BONDS
OF THE VILLAGE OF DUBLIN, OHIO (RIVER'S EDGE THREE
PROJECT) FOR THE PURPOSE OF PROVIDING FUNDS TO MAKE
A LOAN TO RIVER'S EDGE THREE TO ASSIST IN THE
FINANCING OF THE COSTS OF THE ACQUISITION,
CONSTURCTION AND EQUIPPING OF A PROJECT AS DEFINED
IN SECTION 165.01 OF THE OHIO REVISED CODE;
PROVIDING FOR THE PLEDGE OF REVENUES FOR THE PAYMENT
OF SAID BONDS; APPOINTING A REMARKETING AGENT;
AUTHORIZING A LOAN AGREEMENT WITH RESPECT TO THE
PROCEEDS DERIVED FROM THE SALE OF SAID BONDS;
AUTHORIZING A TRUST AGREEMENT APPROPRIATE FOR THE
PROTECTION AND DISPOSITION OF SUCH REVENUES AND TO
FURTHER SECURE THE PAYMENT OF PRINCIPAL OF AND ANY
PREMIUM AND INTEREST ON SUCH BONDS; AUTHORIZING A
CONTRACT OF PURCHASE APPROPRIATE FOR THE SALE OF
SUCH BONDS; AND DECLARING AN EMERGENCY.
WHEREAS the Village of Dublin, Ohio (hereinafter
sometimes called the "Issuer") is a municipal corporation and
political subdivision in and of the State of Ohio, and by virtue
of the laws of the State of Ohio, including Article VIII, Section
13 of the Constitution of Ohio and Chapter 165 of the Ohio
Revised Code, is authorized and empowered, among other things,
(a) to make loans to persons to assist in the financing of the
costs of acquisition, construction and equipping of commercial
facilities within the boundaries of the Issuer, upon certain
determinations by the Legislative Authority of the Issuer
heretofore made and herein confirmed, (b) to issue revenue bonds
of the Issuer for the purpose of providing funds to make such
loans, (c) to secure such revenue bonds by a trust agreement
between the Issuer and a corporate trustee, including therein the
pledge and assignment of revenues from such loans to the payment
of such revenue bonds for the benefit of the bondholders, and (d)
to enact this Bond Legislation and enter into the Indenture, the
Loan Agreement and the Contract of Purchase hereinafter
identified, upon the terms and conditions provided therein; and
WHEREAS River's Edge Three Limited Partnership
(hereinafter sometimes called the "Company") is a limited
partnership duly organized under the laws of and qualified to do
business in the State of Ohio; and
WHEREAS, the Legislative Authority of the Issuer has
heretofore found and determined, and does hereby confirm that (a)
the property to be acquired, constructed and equipped with the
proceeds of the Bonds herein authorized is a "project" within the
meaning of that term as defined in Section 165.01 of the Ohio
Revised Code, and (b) the utilization of the Facilities (as
hereinafter defined) is economically sound and will benefit the
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people of the Issuer by creating or preserving jobs and
increasing opportunities for employment and strengthening the
economic welfare of the people of the Issuer and the State of
Ohio; and the Issuer shall assist in the financing of such
property for the purpose of promoting the commercial and economic
development of the Issuer, and thereby of the State of Ohio; and
WHEREAS, it has been estimated and is determined by the
Legislative Authority that the amount necessary to finance the
cost of the Facilities, including necessary expenses incidental
thereto, will require the issuance, sale and delivery of Project
Bonds in the principal amount of $2,100,000 as hereinafter
provided, which Bonds are equally and ratably payable from and
secured by a pledge and assignment of the revenues to be derived
from the Loan Agreement hereinafter identified and further
secured by a trust agreement hereinafter provided for between the
Issuer and a Trustee;
NOW, THEREFORE, BE IT ORDAINED, by the Council of the
Village of Dublin, Ohio:
Section 1. Authorization of $2,100,000 Industrial
Development Revenue Bonds. It is hereby determined to be
necessary to, and the Issuer shall, issue, sell and deliver, as
provided herein, $2,100,000 principal amount of Bonds, pursuant
to the authority of Article VIII, Section 13 of the Constitution
of Ohio and Chapter 165 of the Ohio Revised Code, for the purpose
of providing funds to lend to the Company so that the Company may
acquire, construct and equip property comprising an office
building complex and the site thereof located in Dublin, Ohio, in
order to promote the commercial and economic development of the
State of Ohio and benefit the people of the Issuer by preserving
and creating jobS and increasing opportunities for employment and
strengthening the economic welfare of the people of the Issuer
and the State of Ohio. The Bonds shall be designated "Village of
Dublin, Ohio Adjustable Rate Industrial Development Revenue Bonds
(River's Edge Three Project)".
Section 2. Definitions. In addition to the words and
terms elsewhere defined in this Bond Legislation, the following
words and terms as used in this Bond Legislation and in the
Indenture shall have the following meanings unless the context or
use indicates another or different meaning or intent and such
definitions shall be equally applicable to both the singular and
plural forms of any of the words and terms herein defined:
"Adjustment Date" means (a) October 1, 1993; (b) prior
to the Conversion Date, October I, 1996 and October 1 in each
third succeeding year; and (c) the Conversion Date.
"Alternate Letter of Credit" means an irrevocable letter
of credit issued in accordance with Sect on 4.6 of the Loan
Agreement.
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"Bank" means the issuer of the Letter of Credit,
initially Bank One, Columbus, NA, Columbus, Ohio, or in the event
of issuance of an Alternate Letter of Credit, the commercial bank
which issues such Alternate Letter of Credit.
"Bank Interest Rate" means the Bank Interest Rate as
defined in the Letter of Credit Agreement; provided, however,
that such rate shall not exceed the sum of 3% and the Bank's
prime, base or reference rate.
"Bond Fund" or "Village of Dublin, Ohio-River's Edge
Three Revenue Bond Fund" means the fund created in Section 12 of
this Bond Legislation.
"Bond Legislation" means this ordinance as the same may
be amended, modified or supplemented by any amendments or
modifications hereof and supplements hereto entered into in
accordance with the provisions of the Indenture.
"Bond Registrar" means the Trustee acting in such
capacity pursuant to Section 2.04 of the Indenture.
"Bondholder" or "horder" means the Person in whose name
any Bond is registered.
"Bonds" means the industrial development revenue bonds
of the Issuer designated "Village of Dublin, Ohio Adjustable Rate
Industrial Development Revenue Bonds (River's Edge Three Limited
Partnership Project)" identified in Section 1 of this Bond
Legislation.
"Business Day" means any day of the year, other than:
(a) a Saturday; (b) a Sunday; (c) a day on which banks located in
the cities in which the principal corporate trust office of the
Trustee and the principal office of the Bank are located are
required or authorized by law to remain closed; or (d) a day on
which The New York Stock Exchange is closed.
"Code" means the Internal Revenue Code of 1954, as
amended, and references to the Code and Sections of the Code
shall include relevant regulations and proposed regulations
thereunder and any successor provisions to such Sections,
regulations or proposed regulations.
"Company" means River's Edge Three Limited Partnership,
a limited partnership organized under the laws of and qualified
to do business in the State, and its lawful successors and
assigns, including any surviving, resulting or transferee entity
as provided in Section 5.1 of the Loan Agreement.
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"construction Fund" or "Village of Dublin - River's Edge
Three Construction Fund" means the fund of that name created in
Section 11 of this Bond Legislation.
"Contract of Purchase" means the Bond Purchase Agreement
among the Original Purchaser, the Company, the Bank and the
Issuer, providing for the sale of Bonds to the Original Purchaser.
"Conversion Date" means the date upon which the Bonds
begin to bear interest at the Fixed Interest Rate, which date
shall be established in accordance with Section 8 of this Bond
Legislation.
"Custodian" means a bank or trust company, organized and
existing under the laws of the United States of America or any
state thereof which (a) has capital and surplus at least as great
as that required under the Indenture for a successor to the
Trustee and (b) is qualified to exercise trust powers in the
state in which its principal office is located.
"Determination of Taxability" means the receipt by the
Trustee or a Bondholder of a ruling or technical advice by the
Internal Revenue Service in which the Company has participated or
a written opinion by an attorney or firm of attorneys of
recognized standing on the subject of municipal bonds selected by
the Trustee or a Bondholder and approved by the Company, which
approval shall not be unreasonably withheld, to the effect that
interest on the Bonds is includible in the gross income for
federal income tax purposes of a holder (other than a holder who
is a "substantial user" of the Facilities or a "related person" as
such terms are used in Section 103(b) of the Code).
"Eligible Investments" means (i) Government Obligations,
(ii) ~ertificates of deposit issued by or other time deposits at
banks, savings banks, savings and loan associations or trust
companies, including the Trustee or its affiliates, organized
under the laws of the United States of America or any state
thereof, which have an aggregate of capital, paid in surplus and
retained earnings of at least $25,000,000, or issued by or drawn
on or deposited at any branch of such a bank, savings bank,
savings and loan association or trust company whether within or
without the United States of America, (iii) commercial paper or
finance company paper, including that of the Trustee or its
affiliates but excluding that of the Company or its affiliates,
rated "P-l" or "A-I" or their equivalents by either Moody's or S&P
or any successor or either, (iv) obligations of any state of the
United States of America or any political subdivision or other
instrumentality of any such state which are rated "A" or its
equivalent or better by either Moody's or S&P or any successor of
either, or unrated obligations of any such state or political
subdivision which has outstanding other obligations which are so
rated, (v) repurchase agreements or variable amount master demand
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notes, including those of the Trustee or its affiliates, secured
by obligations described in (i) through (iv) of this paragraph,
and (vi) shares of any Investment Company whose assets are
invested exclusively in obligations described in (i) through (iv)
of this paragraph; provided, however, that "Eligible Investments"
with respect to any proceeds resulting from a draw under the
Letter of Credit shall mean only Government Obligations maturing
not more than thirty days after purchase; and provided, further,
that "Eligible Investments" with respect to proceeds in the
Construction Fund shall mean only obligations described in (iv) of
this paragraph, the interest on which is exempt from federal
income tax pursuant to Section 103(a)(I) of the Code.
"Event of Default" shall have the meaning assigned in
Section 8.01 of the Indenture.
"Expiration Date of the Letter of Credit" means the date
established in the Letter of Credit for the expiration thereof in
accordance with its terms, initially October 15, 1993, and in the
event such date is modified, such date as modified.
"Facilities" means the real, personal and mixed property
identified in Exhibit A to the Loan Agreement, together with any
additions and improvements thereto, modifications thereof and
substitutions therefor.
"First Optional Redemption Date" means the October 1
occurring in the year which is a number of years after the
Conversion Date equal to the number of years between the October 1
immediately following the Conversion Date (unless the Conversion
Date is a October 1, in which case from such October 1) and
October 1, 2011, multiplied by 1/2 and (if the product is not a
whole number) rounded up to the nearest whole number.
"Fixed Interest Rate" means a fixed interest rate to be
borne by Bonds maturing October 1, 2011 after the Conversion Date,
established in accordance with Section 8 of this Bond Legislation.
"Government Obligations" means (a) direct obligations
of, or obligations the payment of principal of and interest on
which are unconditionally guaranteed by, the United States of
America, or (b) certificates or other evidences of ownership
interest in obligations of the character described in (a) above
or in specified portions thereof, including, without limitation,
portions consisting solely of the principal thereof or solely of
the interest thereon, which obligations are held by a Custodian
as representative of the beneficial owners, or (c) any other
obligations ("Other Obligations") fully secured as to principal
and interest by obligations or certificates described in clause
(a) or (b) above ("a or b obligations"), provided that the a or b
obligations are held by a Custodian, pursuant to an escrow or
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other agreement, solely for the benefit of the owners of the
Other Obligations.
"Indenture" means the Trust Agreement between the Issuer
and the Trustee, dated as of the 15th day of September, 1986,
including as part thereof this Bond Legislation, as the same may
be amended, modified or supplemented by any amendments or
modifications thereof and supplements thereto entered into in
accordance with the provisions thereof.
"Independent Counsel" means any attorney duly admitted
to practice law before the highest court of any state and not an
officer or a full time employee of the Issuer or the Company.
"Independent Tax Counsel" means Independent Counsel
selected by the Company and satisfactory to the Trustee,
experienced in matters relating to the exemption from federal
income tax of interest on obligations issued by states or their
political subdivisions.
"Interest Payment Date" means the first (1st) day of
each April and October, commencing April 1, 1987.
"Interest Period" means, prior to the Conversion Date, a
period from and including an Adjustment Date to and including the
day next preceding the next succeding Adjustment Date, except
that the first Interest Period shall be the period from and
including October 1, 1986 to and including September 30, 1993.
"Investment Company" means an open-end diversified
management investment company registered under the Investment
Company Act of 1940, as amended.
"Issuance Expense Fund" or "Village of Dublin,
Ohio--River's Edge Three Issuance Expense Fund" means the fund of
that name created in Section 11 of the Bond Legislation.
"Issuer" means the Village of Dublin, Ohio, a municipal
corporation and political subdivision in and of the State, and
its lawful successors and assigns.
"Legislative Authority" means the Council of the Issuer
and any officer, board, commission or other body which hereafter
succeeds, by operation of law, to the powers and duties of such
council.
"Letter of Credit" means the irrevocable letter of
credit issued by the Bank contemporaneously with the original
issuance of the Bonds, except that upon the issuance and delivery
of an Alternate Letter of Credit, "Letter of Credit" shall mean
such Alternate Letter of Credit.
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"Letter of Credit Agreement" means the Letter of Credit
Agreement, dated as of September 15, 1986, between the Company
and the Bank pursuant to which the Letter of Credit is issued by
the Bank and delivered to the Trustee, and any and all
modifications, alterations, amendments and supplements thereto,
and includes any agreement between the Company and the Bank
pursuant to which any Alternate Letter of Credit is issued.
"Loan" means the loan by the Issuer to the Company of
the proceeds from the sale of the Bonds to the Original Purchaser.
"Loan Agreement" means the Loan Agreement, dated as of
September 15, 1986, between the Issuer and the Company, as from
time to time supplemented or amended in accordance with the
provisions thereof.
"Loan Term" means the period commencing on the date of the
Loan Agreement and ending on the date on which the Bonds have been
fully paid (or provision for their payment has been made) in
accordance with the provisions of the Indenture.
"Mandatory Redemption Date" means October 1 in each of the
years from 1994 to 2010.
"Moody's" means Moody's Investors service, Inc. , a
corporation organized and existing under the laws of the State of
Delaware, its successors and their assigns, and, if such corporation
shall be dissolved or liquidated or shall no longer perform the
functions of a securities rating agency, "Moody's" shall be deemed
to refer to any other nationally recognized securities rating agency
designated by the Issuer, at the request of the Company, by notice
to the Trustee and the Bank.
"Mortgage" means the Open End Mortgage and Security
Agreement, dated as of September 15, 1986, among the Company, the
Trustee and the Bank, pursuant to which the Company grants a
mortgage on and a security interest in the Facilities, and assigns
rents to be derived therefrom, to the Trustee and the Bank as
security for the Bonds and the Company's obligations under the
Letter of Credit Agreement and the Loan Agreement.
"Original Purchaser" means The Ohio Company, Columbus, Ohio
"Outstanding Bonds" or "Bonds outstanding" means, as of any
date, all Bonds which have been authenticated and delivered by the
Trustee under the Indenture except:
( a) Bonds surrendered for and replaced upon exchange or
transfer, or Bonds theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(b) Bonds for the payment or redemption of which
sufficient cash funds shall have been theretofore deposited with the
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Trustee (whether upon or prior to the maturity or redemption date of
any such Bonds), or which are deemed to have been paid and
discharged, pursuant to the provisions of the Indenture; provided
that if such Bonds are to be redeemed prior to the maturity thereof,
notice of such redemption shall have been given or arrangements
satisfactory to the Trustee shall have been made therefor, or waiver
of such notice satisfactory in form to the Trustee, shall have been
filed with the Trustee; and
(c) Bonds in lieu of which others have been authenticated
under Sections 2.05 and 2.06 of the Indenture.
"Paying Agent" means the Trustee, and its successors, and
any other Paying Agent or Paying Agents as may be appointed by the
Issuer from time to time with the consent of the Company.
"Person" means a natural person, a firm, an association, a
partnership, a corporation or a public body.
"Project Purposes" means the purposes of conunercial
facilities as described in Chapter 165 of the Ohio Revised Code.
"Record Date" means with respect to any Interest Payment
Date the fifteenth (15th) day of the month next preceding such
Interest Payment Date.
"Remarketing Agent" means the remarketing agent appointed
in accordance with Section 11 of this Bond Legislation. "Principal
Office" of the Remarketing Agent shall mean the office thereof
designated in writing to the Trustee, the Company, the Issuer and
the Bank.
"Revenues" means (a) the payments and other amounts which
under the Loan Agreement are payable by the Company directly to the
Trustee to meet amounts due with respect to the principal of and
premium, if any, and interest on the Bonds, (b) all other moneys
received by the Issuer, or the Trustee on behalf of the Issuer, in
respect of the repayment of the Loan including, but not limited to,
moneys drawn under the Letter of Credit and (c) income and profit
from the investment of the payments and moneys described in (a) and
(b) above, all subject, however, to certain provisions in the
Indenture with respect to the Trustee's holding moneys for the
benefit of the holders of particular Bonds.
"S&P" means Standard & Poor's Corporation, a corporation
organized and existing under the laws of the State of New York, its
successors and their assigns, and, if such corporation shall be
dissolved or liquidated or shall no longer perform the functions of
a securities rating agency, "S&P" shall be deemed to refer to any
other nationally recognized securities rating agency designated by
the Issuer, at the request of the Company, by notice to the Trustee
and the Bank.
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"State" means the State of Ohio.
"Trustee" means Ameritrust Company National Association,
Cleveland, Ohio, and its successors and any corporation or
association resulting from or surviving any consolidation or merger
to which it or its successors may be a party, and any successor
trustee at the time serving as successor trustee under the Indenture.
Any reference herein to the Issuer, or to any officers
thereof, shall include those succeeding to their functions, duties
or responsibilities pursuant to or by operation of law or who are
lawfully performing their functions. Any reference to a section or
provision of the Ohio Constitution or to a section, provision or
chapter of the Ohio Revised Code shall include such section or
provision or chapter as from time to time amended, modified,
revised, supplemented or superseded; provided that no such change in
the Constitution or laws (a) shall alter the obligation to pay the
principal of and premium, if any, and interest on the Bonds in the
amounts and manner, at the times, and from the sources provided in
the Bond Legislation and the Indenture, except as otherwise herein
permitted or (b) shall be deemed applicable by reason of this
provision if such change would in any way constitute an impairment
of the rights of the Issuer, the Company, the Trustee, the Bank or
the Bondholders under the Loan Agreement or the Indenture.
Section 3. Form of Bonds; Maturity; Place of Payment;
Execution. The Bonds shall be issued in fully registered form only
in the denomination of $5,000 or any integral multiple thereof
requested by the Bondholder. The Bonds shall be numbered as
determined by the Trustee and shall mature, subject to prior
redemption upon the terms and conditions hereinafter set forth, on
the dates and in the principal amounts, and shall bear interest
during the first Interest Period at the rates, set forth in the
following table:
Principal Interest Rate
Date Amount for First Interest Period
October 1, 1989 $ 50,000 6.00%
October 1, 1990 55,000 6.25%
October 1, 1991 60,000 6.50%
October 1, 1992 65,000 6.75%
October 1, 1993 70,000 7.00%
October 1, 2011 1,800,000 7.00%
Principal of and premium, if any, and interest on the Bonds
shall be payable in lawful money of the United States of America
from funds available therefor under the Indenture, without deduction
for services of any Paying Agent. Principal of and premium, if any,
on each Bond shall be paid to the holder thereof upon presentation
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and surrender of such Bond as it becomes due at the principal
corporate trust office of the Trustee. Interest on each Bond shall
be payable by check drawn upon the Paying Agent and mailed on each
Interest Payment Date to the holder of such Bond as of the close of
business on the Record Date next preceding the Interest Payment Date
at the registered address of such holder as it shall appear as of
the close of business on such Record Date on the registration books
maintained pursuant to the Indenture notwithstanding the
cancellation of any of such Bonds upon any exchange or transfer
thereof subsequent to the Record Date and prior to such Interest
Payment Date, except that, if and to the extent that there shall be
a default in the payment of the interest due on such Interest
Payment Date, such defaulted interest shall be paid to the holder in
whose name any such Bond is registered at the close of business on
the fifth (5th) Business Day next preceding the date of payment of
such defaulted interest.
Notwithstanding the provisions of the immediately preceding
paragraph, a holder of Bonds in an aggregate principal amount of
$100,000 or more may, by notice to the Paying Agent, direct the
Paying Agent to make payments of interest on such holder's Bonds by
means of wire transfers, in immediately available funds, to a
banking institution located in the United States of America
designated in such notice for the account of such holder.
The Bonds shall be executed by the City Manager and the
Director of Finance, provided that such signatures may be
facsimilies.
Each Bond shall bear interest from and including October 1,
1986, or if authenticated after October 1, 1986 from and including
the last date to which interest shall have been paid on the Bonds
until payment of the principal or redemption price thereof shall
have been made or provided for in accordance with the provisions of
the Indenture, whether at maturity, upon redemption or otherwise.
Interest on Bonds shall be paid on each Interest Payment Date and
shall be computed on the basis of a 360-day year and twelve 30-day
months.
Section 4. Interest Rate Prior to Conversion Date. For
the first Interest Period, the Bonds shall bear interest at the
rates set forth in Section 3 of this Bond Legislation. Thereafter,
for each Interest Period ending before the Conversion Date, the
interest rate on the Bonds shall be a rate determined by the
Remarketing Agent, in its discretion, to be that rate which, if
borne by all of the Bonds, would, in the judgment of the Remarketing
Agent, having due regard to prevailing financial market conditions,
be the interest rate necessary (but not in excess of the rate
necessary) to enable the Remarketing Agent to remarket all
Outstanding Bonds on the Adjustment Date occurring in such Interest
Period at a price equal to 100% of the principal amount thereof.
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The determination of the interest rate on the Bonds by the
Remarketing Agent, as provided in this paragraph, shall be
conclusive and binding upon the Issuer, the Company, the Trustee,
the Bank and the holders of the Bonds.
Notwithstanding anything to the contrary contained herein,
during any period, either before or after the Conversion Date, in
which the Bank is the holder of any Bonds delivered to the Bank
pursuant to any draw under the Letter of Credit, the interest rate
borne by such Bonds (and only such Bonds) shall be the Bank Interest
Rate.
For the second Interest Period and each Interest Period
thereafter ending prior to the Conversion Date, the interest rate to
be borne by the Bonds shall be determined as provided in this
Section 4 as of, and shall be made available by the Remarketing
Agent to the Company, the Trustee and the Bank on, the twelfth
Business Day next preceding the first day of such Interest Period.
Section 5. Optional Redemption.
(a) On and after October 1, 1993 and prior to the
Conversion Date, Bonds maturing October 1, 2011 are
subject to redemption by the Issuer, at the option of the
Company, in whole at any time or in part in integral
multiples of $5,000 on any Interest Payment Date at a
price equal to 100% of the principal amount redeemed plus
accrued interest to the redemption date. Any such
redemption shall be made solely from proceeds drawn under
the Letter of Credit.
(b) The Bonds are subject to redemption by the
Issuer, at the option of the Company, in whole at any
time or, to the extent permitted by Section 4.3(c) of the
Loan Agreement, in part in inverse order of principal
maturities and in integral multiples of $5,000 on any
Interest Payment Date, at a redemption price of 100% of
the principal amount thereof plus accrued interest to the
redemption date, in the event of (1) condemnation of the
Facilities or any part thereof to the extent provided in
Section 4.3(c) of the Loan Agreement or (2) exercise by
the Company of its prepayment option as provided in
Section 4.3(d) of the Loan Agreement. Prior to the
Expiration Date of the Letter of Credit, any such
redemption shall be made solely from proceeds drawn under
the Letter of Credit.
(c) After the Conversion Date, Bonds maturing
October 1, 2011 are subject to redemption by the Issuer,
at the option of the Company, on or after the First
Optional Redemption Date, in whole at any time or in part
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on any Interest Payment Date in integral multiples of
$5,000, on a date selected by the Company at the
redemption prices (expressed as percentages of the
principal amount redeemed) set forth in the following
table plus accrued interest to the redemption date:
Redemption
Redemption Dates Prices
First Optional Redemption Date through
the following September 30 103%
First Anniversary of the First Optional
Redemption Date through the following
September 30 102%
Second Anniversary of the First Optional
Redemption Date through the following
September 30 101%
Third Anniversary of the First Optional
Redemption Date and thereafter 100%
Prior to the Expiration Date of the Letter of Credit, any
such redemption shall be made from proceeds drawn under the
Letter of Credit; provided, however, that if the redemption
price of the Bonds exceeds 100% of the principal amount
redeemed plus accrued interest thereon, such excess shall be
paid from moneys on deposit in the Bond Fund other than
proceeds drawn under the Letter of Credit.
(d) If less than all of the Bonds are called for
redemption (regardless of whether such redemption is at the
option of the Company or pursuant to any mandatory redemption
provisions of the Indenture), the selection of Bonds or
portions thereof to be called shall be made by lot in such
manner as the Trustee shall determine; provided, however,
that Bonds held by the Bank as a result of any draw under the
Letter of Credit shall be selected for redemption prior to
any other Bonds.
(e) The Issuer, or the Company on behalf of the Issuer,
shall give the Trustee written notice of an election to
redeem Bonds pursuant to this Section 5 at least ten (10)
Business Days prior to the latest day on which the Trustee
may give the Bondholders notice of redemption pursuant to
subsection (a) of Section 9 of this Bond Legislation.
(f) Except as provided in subsection (b) of this
Section 5, Bonds maturing prior to October 1, 2011 shall not
be subject to optional redemption.
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Section 6. Mandatory Redemption.
(a) Upon the occurrence of a Determination of
Taxability, the Bonds are subject to mandatory redemption by
the Issuer at a redemption price of 100% of the principal
amount redeemed plus accrued interest to the redemption date
on the sixtieth (60th) day following the date of such
Determination of Taxability. The Bonds shall be redeemed in
whole unless, in the opinion of Independent Tax Counsel the
redemption of a portion of the outstanding principal amount
of the Bonds would have the result that the interest payable
on the Bonds remaining outstanding after such redemption
would not be included in the gross income for federal income
tax purposes of any holder of the Bonds (other than a holder
who is a "substantial user" of the Facilities or a "related
person" within the meaning of Section 103(b) of the Code), in
which event only such portion of the outstanding Bonds shall
be redeemed. Prior to the Expiration Date of the Letter of
Credit the redemption price shall be paid solely with
proceeds drawn under the Letter of Credit.
(b) Bonds maturing pn October 1, 2011 are also subject
to mandatory redemption by the Issuer, in part, at a
redemption price of 100% of the principal amount redeemed
plus accrued interest to the redemption date in accordance
with the sinking fund requirements set forth in Section 12 of
this Bond Legislation.
(c) The Bonds are also Subject to mandatory redemption
by the Issuer, in whole, at a redemption price of 100% of the
principal amount thereof on the Interest Payment Date
immediately preceding the Expiration Date of the Letter of
Credit unless such Interest Payment Date is the Conversion
Date and the Fixed Interest Rate has been determined by the
Remarketing Agent on the basis that no Letter of Credit will
secure the payment of principal of or interest on the Bonds
after the Conversion Date.
Section 7. Purchase of the Bonds.
(a) All Bonds maturing on October 1, 2011 shall be
purchased by the Trustee on each Adjustment Date at a purchase
price equal to the principal amount thereof except Bonds, or
portions thereof in an integral multiple of $5,000, with respect
to which the Trustee shall have received written directions not
to so purchase such Bonds or portions thereof from the holders
of the same. Any Bonds not delivered to the Trustee for
purchase (other than Bonds with respect to which the Trustee
shall have received such written directions not to so purchase)
shall nonetheless be deemed to be tendered for sale by the
holders thereof and purchased by the Trustee.
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(b) In the event that Bonds are to be purchased by the
Trustee pursuant to subsection (a) of this Section 7, a holder
of Bonds may direct the Trustee not to purchase any Bonds or
portions thereof owned by him by delivering to the Trustee, at
least thirty (30) days before the date fixed for such purchase,
an instrument or instruments in writing executed by such holder
(i) specifying the numbers of the Bonds held by him, (ii)
specifically acknowledging each of the matters set forth in
clauses (i) through (viii) of Section 9(b) of this Bond
Legislation, and (iii) directing the Trustee not to purchase
such Bonds or portions thereof. Any instrument delivered to the
Trustee in accordance with this subsection (b) shall be
irrevocable with respect to the Bonds for which such instrument
is delivered and shall be binding upon subsequent holders of
such Bonds.
(c) Not less than twenty (20) days prior to each
Adjustment Date, the Trustee shall notify the Remarketing Agent,
by telephone confirmed promptly in writing, of the aggregate
principal amount of Bonds which will be purchased by the Trustee
on the Adjustment Date. The Remarketing Agent shall offer such
Bonds for sale and shall use its best efforts to sell such
Bonds, any such sale to be at a price equal to 100% of the
principal amount thereof on the Adjustment Date.
(d) On any date on which Bonds are to be purchased by the
Trustee in accordance with subsection (a) of this Section 7, the
Trustee shall purchase such Bonds with immediately available
funds at the purchase price specified therein. Funds for the
payment of such purchase price shall be derived solely from the
following sources in the order of priority indicated, and
neither the Issuer nor the Trustee shall be obligated to provide
funds from any other source:
(i) proceeds furnished to the Trustee by the
Remarketing Agent representing proceeds of the sale of
such Bonds by the Remarketing Agent;
(ii) moneys representing proceeds of a drawing by
the Trustee pursuant to the Letter of Credit; and
(iii) moneys furnished by the Company to the
Trustee pursuant to Section 4.11 of the Loan Agreement.
(e) The Trustee shall hold in a separate account moneys
representing the purchase price of Bonds purchased in
accordance with this Section 7 until such Bonds have been
delivered to the Trustee by the holders thereof. The Trustee
shall invest such moneys only in Government Obligations
maturing not more than thirty days after purchase, as
directed by the Company by telephone and confirmed in writing.
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(f) Bonds sold by the Remarketing Agent pursuant to
subsection (c) of this Section 7 shall be delivered to the
purchasers thereof. Bonds purchased by the Trustee with
moneys described in clause (ii) of subsection (d) of this
Section 7 shall be registered in the name of and delivered to
the Bank. Bonds purchased by the Trustee with moneys
described in clause (iii) of subsection (d) of this Section 7
shall, at the direction of the Company, be (A) held by the
Trustee for the account of the Company, (B) cancelled, or (C)
delivered to the Company; provided, however, that any Bonds
so purchased after the selection thereof by the Trustee for
redemption shall be cancelled.
(g) Bonds delivered as provided in subsection (f) of
this Section 7 shall be registered in the manner directed by
the recipient thereof.
(h) Whenever Bonds are delivered to the Bank pursuant
to subsection (f) of this Section 7, the Trustee, as Bond
Registrar, shall notify the Company of the principal amount
of such Bonds and the date of delivery thereof to the Bank
(which date of delivery shall be deemed to be the date upon
which the draw on the Letter of Credit resulting in such
delivery was made). The Trustee shall create and maintain
records sufficient to permit the Trustee to determine the
interest payable on any Bond during any period in which such
Bond is held by the Bank as a result of a draw on the Letter
of Credit, and the Trustee shall advise the Company not later
than the Business Day immediately preceding each Interest
Payment Date as to the amount of such interest.
(i) In connection with remarketing of the Bonds
pursuant to subsection (c) of this Section 7, the Remarketing
Agent will be acting in an agency capacity rather than as
principal. Accordingly, the following provisions of this
subsection (i) are designed to provide protection to the
Remarketing Agent against the risk that any Person which has
agreed to purchase a Bond or portion thereof in the
remarketing process for any reason fails to pay the purchase
price therefor (a "Defaulting Buyer"). Not later than noon
on the fourth Business Day after each Adjustment Date the
Remarketing Agent shall provide notice to the Company, the
Bank and the Trustee of the principal amount of the Bonds
remarketed for which the Remarketing Agent has paid the
purchase price on behalf of a Defaulting Buyer (which the
Remarketing Agent is under no obligation to do) but for which
the Remarketing Agent has not been reimbursed by a Defaulting
Buyer. On the sixth Business Day after each such Interest
Payment Date, the Trustee shall draw such amount under the
Letter of Credit and use the moneys so drawn, to pay to the
Remarketing Agent the applicable purchase price. In the
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event of any such drawing, and provided such drawing is
promptly honored in full, the Bonds purchased with the
proceeds of such drawing shall be delivered in accordance
with the provisions of subsection (f) of this Section 7.
Section 8. Conversion to Fixed Interest Rate.
(~ At any time, the Company may, by notice in writing to
the Issuer, the Trustee, the Remarketing Agent and the Bank,
direct that a Fixed Interest Rate be established for the Bonds
maturing on October 1, 2011. The Company's notice shall set
forth the Conversion Date desired by the Company, which shall be
an Interest Payment Date on or after October 1, 1993 and not
less than sixty (60) days after the date of such notice. The
notice shall be accompanied by (i) an opinion of Independent Tax
Counsel addressed to the Trustee stating that the conversion to
a Fixed Interest Rate is authorized and permitted by the
Indenture and Chapter 165, Ohio Revised Code, and that such
conversion will not adversely affect the exemption of interest
on the Bonds from federal income taxation and (ii) the written
consent of the Bank to conversion of the Bonds to a
Fixed-Interest Rate. On the twelfth (12th) Business Day prior
to the Conversion Date, the Remarketing Agent shall determine
the Fixed Interest Rate, which shall be the rate which, if borne
by all of the Bonds, would, in the judgment of the Remarketing
Agent, having due regard to prevailing financial market
conditions, be the interest rate necessary (but not in excess of
the rate necessary) to enable the Remarketing Agent to remarket
all Outstanding Bonds on the Conversion Date at a price equal to
100% of the principal amount thereof.
(b) If Bonds maturing on October 1, 2011 are converted
to bear interest at a Fixed Interest Rate pursuant to
subsection (a) of this Section 8, the Letter of Credit shall
be cancelled on the fifteenth (15th) day following the
Conversion Date, and the Trustee shall deliver the Letter of
Credit to the Bank on such day, unless prior to the day on
which the Trustee gives notice of the Conversion Date, in
accordance with subsection (b) of Section 9 of this Bond
Legislation, the Trustee has received (i) written
notification from both the Company and the Bank stating that
the Letter of Credit is not to be cancelled on such day and
(ii) written notification from the Bank that, upon delivery
of the Letter of Credit to the Bank on the Conversion Date,
the Bank will forthwith issue in favor of the Trustee an
Alternate Letter of Credit.
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(c) If pursuant to subsection (b) of this Section 8,
the Letter of Credit is not to be cancelled on the fifteenth
(15th) day following the Conversion Date, then on the
Conversion Date the Trustee shall deliver the Letter of
Credit to the Bank in exchange for the Alternate Letter of
Credit described in subsection (b) of this Section 8.
Section 9. Notices of Redemption or Adjustment Date.
(a) In the event any Bonds are called for redemption,
the Trustee, on behalf of the Issuer, shall give notice of
such redemption, which notice shall (i) identify the Bonds or
portions thereof to be redeemed, the redemption date, the
redemption price and the place or places where the amounts
due upon such redemption shall be payable (which shall be the
principal corporate trust office of the Trustee) and (ii)
state that on the redemption date the Bonds to be redeemed
shall cease to bear interest. Such notice may set forth any
additional information relating to such redemption. Such
notice shall be given at least thirty (30) days prior to the
redemption date. Notwithstanding the foregoing, notice of
the redemption of Bonds held by the Bank as a result of a
draw under the Letter of Credit shall be sufficient if given
to the Bank by the Company or the Trustee, by telephone, not
less than one (1) Business Day prior to the redemption date.
Prior to the Expiration Date of the Letter of Credit, the
Issuer shall not request the Trustee to give notice of an
optional redemption of Bonds (other than Bonds held by the
Bank as a result of a draw under the Letter of Credit), and
the Trustee shall not give any such redemption notice, unless
the Trustee is holding moneys in the appropriate account in
the Bond Fund sufficient to pay the redemption price of such
Bonds.
(b) The Trustee, on behalf of the Issuer, shall give
notice of each Adjustment Date, which notice shall include a
statement (i) of the date on which the Bonds are to be
purchased by the Trustee, (ii) if applicable, that (A) the
Letter of Credit shall terminate fifteen (15) days after the
Adjustment Date, or (B) an Alternate Letter of Credit will be
delivered to the Trustee on the Adjustment Date, (iii) that
any ratings of the Bonds by Moody's or S&P may be withdrawn
or reduced from the ratings on the Bonds then prevailing,
(iv) that the Indenture provides that Bonds are required to
be delivered to the Trustee for purchase on the date
specified in such notice, and that Bonds not delivered to the
Trustee on such date shall nonetheless be deemed to have been
purchased by the Trustee (unless the holders thereof have
directed the Trustee not to purchase such Bonds or portions
thereof) and, accordingly, no interest subsequent to the date
specified in such notice shall be payable to such holders,
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(v) of the rights of the holders to direct the Trustee not to
purchase Bonds held by them, and the method of exercising
such rights, (vi) that on the Adjustment Date designated in
such notice the Trustee shall hold moneys equal to the
purchase price for all Bonds not delivered on such date, in
trust, for the holders of such Bonds, which moneys shall be
paid upon surrender of Bonds to the Trustee, (vii) that the
interest rate to be borne by the Bonds effective on the
Adjustment Date will be determined by the Remarketing Agent
on the twelfth (12th) Business Day prior to the Adjustment
Date, and (viii) that if the Adjustment Date is the
Conversion Date, after the Conversion Date the Bonds will
bear interest at the Fixed Interest Rate until final
maturity. If an Alternate Letter of Credit is to be
delivered to the Trustee on the Adjustment Date, such notice
shall also state (i) the issuer of such Alternate Letter of
Credit and include a brief description of such issuer and
(ii) the expiration date of the Alternate Letter of Credit.
Such notice shall be given at least forty-five (45) days
prior to the Adjustment Date.
(c) Any notice requjred to be given pursuant to
subsections (a) or (b) of this Section 9 shall be given by
mailing a copy thereof by registered or certified mail to the
holder of each Bond (provided, however, that a notice of
redemption need be given only to holders of Bonds to be
redeemed in whole or in part) at the address for such holder
shown on the registration books maintained by the Trustee
pursuant to the Indenture. Failure to give such notice by
mailing, or any defect in such notice, to the holder of any
Bonds shall not affect the validity of the proceedings with
respect to any other Bonds.
(d) If, because of the temporary or permanent
suspension of regular mail service, or for any other reason,
it is impossible or impractical to mail such notice
ofredemption or purchase in the manner herein provided, then
such other manner of giving notice in lieu thereof as shall
be made with the approval of the Trustee shall constitute a
sufficient notice. Failure to give or receive such notice
with respect to any Bond shall not affect the validity of any
proceedings for the redemption or purchase of any other Bonds.
(e) Any notice required to be given pursuant to
subsection (a) or (b) of this Section 9 shall also be given
to the Bank by telephone or telegraph, promptly confirmed in
writing. Immediately after the redemption or cancellation of
any Bonds, the Trustee shall promptly notify the Bank, in
accordance with the provisions of the Letter of Credit, of
the aggregate principal amount of Bonds redeemed or cancelled
and the aggregate principal amount of Bonds Outstanding after
such cancellation or redemption.
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Section 10. Sale of the Bonds. The City Manager or
the Director of Finance of the Issuer, and either of them, are
hereby authorized and directed to execute and deliver the
Contract of Purchase in substantially the form submitted to the
Legislative Authority, which form of Contract of Purchase is
hereby approved in all respects with such changes as shall not be
inconsistent with the terms and provisions of this Bond
Legislation and not substantially adverse to the Issuer as may be
permitted by law and approved by the officer executing the same.
The approval of such changes by such officer, and the
determination that such changes are not substantially adverse to
the Issuer, shall be conclusively evidenced by the execution of
the Contract of Purchase. The City Manager or the Director of
Finance of the Issuer, and either of them, are hereby authorized
and directed to make the necessary arrangements on behalf of the
Issuer to establish the date, location, procedure and conditions
for the delivery of the Bonds to the Original Purchaser and to
take all steps necessary to effect due authentication, delivery
and security of the Bonds under the terms of this Bond
Legislation and the Indenture, and it is hereby determined that
the price and the interest rate for the Bonds and the manner of
sale, as provided in this Bond Legislation and in the Contract of
Purchase, are in the best interest of the Issuer and consistent
with all legal requirements.
The preparation, use and circulation by the Original
Purchaser of an official statement relating to the Bonds in
accordance with the Contract of Purchase is hereby authorized,
and any member of the Legislative Authority is hereby authorized
and directed to execute the final official statement in
substantially the form heretofore presented to the Legislative
Authority. The Issuer has not confirmed, and assumes no
responsibility for the accuracy or completeness of, any of the
information in the official statement or any supplements thereto.
Section 11. Creation of Construction Fund and Issuance
Expense Fund; Deposit of Proceeds of Bonds. There are hereby
created by the Issuer and ordered maintained as separate bank
accounts in the custody of the Trustee a trust fund to be
designated "Village of Dublin, Ohio - River's Edge Three
Construction Fund" and a trust fund to be designated "Village of
Dublin, Ohio -- River's Edge Three Issuance Expense Fund". From
the aggregate amount received from the sale of the Bonds, $8,400
shall be deposited in the Issuance Expense Fund and the accrued
interest received upon the sale of the Bonds shall be deposited
in the Bond Fund created in Section 12 of this Bond Legislation.
The balance of such amount shall be deposited in the Construction
Fund. Moneys in the Construction Fund shall be held in trust by
the Trustee for the purposes set forth in this Bond Legislation
and shall be invested in accordance with Section 14 of this Bond
Legislation and disbursed in accordance with the provisions of
the Loan Agreement. The Issuer covenants and agrees to take all
necessary and appropriate action promptly in approving and
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ordering all such disbursements. The Trustee is hereby
authorized and directed to make any such disbursement from the
Issuance Expense Fund or the Construction Fund in accordance with
the provisions of the Loan Agreement, to transfer moneys and
investments from the Issuance Expense Fund to the Construction
Fund as provided in Section 3.8 of the Loan Agreement and to
transfer moneys and investments from the Construction Fund to the
Bond Fund as provided in Section 8.05 of the Indenture.
Section 12. Source of Payment; Creation of Bond Fund.
All payments by the Company pursuant to Sections 4.1, 4.3 or 4.12
of the Loan Agreement are to be remitted directly to the Trustee
for the account of the Issuer and deposited in the Bond Fund,
except that monies drawn under the Letter of Credit shall be
maintained by the Trustee in a separate account. Such payments
are required to be sufficient in amount to pay the principal of
and premium, if any, and interest on the Bonds, and the entire
amount of such payments is pledged to the payment of the
principal of and premium, if any, and interest on the Bonds.
There is hereby created by the Issuer and ordered
maintained as a separate account in the custody of the Trustee a
trust fund to be designated "Village of Dublin, Ohio - River's
Edge Three Revenue Bond Fund".
As and for the sinking fund requirements for the
mandatory retirement of Bonds maturing on October 1, 2011, but
subject to the next following paragraph, the aggregate of the
payments which are to be deposited in the Bond Fund shall be
sufficient to redeem (after credit as provided below) on the
Mandatory Redemption Date, in each of the years set forth below
the following principal amount of Bonds:
Principal Principal
Year Amount Year Amount
1994 $ 55,000 2002 $ 90,000
1995 60,000 2003 100,000
1996 60,000 2004 105,000
1991 65,000 2005 110,000
1998 10,000 2006 120,000
1999 15,000 2001 125,000
2000 80,000 2008 135,000
2001 85,000 2009 145,000
2010 155,000
There will remain $165,000 in outstanding principal amount of
Bonds at the stated maturity date of October 1, 2011, if not
previously called for redemption.
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At its option, the Company, on behalf of the Issuer may
(a) deliver to the Trustee for cancellation Bonds maturing on
October 1, 2011 in any aggregate principal amount desired or (b)
receive a credit in respect of the redemption obligation of the
Issuer as set forth above for any Bonds maturing on October 1,
2011 which prior to such date have been redeemed (other than
through the operation of the sinking fund requirements of this
Bond Legislation) or delivered to the Trustee for cancellation
and not theretofore applied as a credit against any mandatory
redemption obligation. Each Bond so delivered or previously
redeemed shall be credited by the Trustee at 100% of the
principal amount thereof against the obligation of the Issuer on
such Mandatory Redemption Date to the extent of such obligation,
and the principal amount of the Bonds to be redeemed by operation
of the sinking fund requirements of the Bond Fund shall be
accordingly reduced.
On or before the forty-fifth (45th) day next preceding
each Mandatory Redemption Date, the Company shall furnish the
Trustee and the Bank with a certificate indicating whether or not
and to what extent the provisions of (a) and (b) of the next
preceding paragraph are to be availed of with respect to such
sinking fund payment.
The Issuer shall redeem an aggregate principal amount of
Bonds at 100% of the principal amount thereof equal to the
difference between the sinking fund requirement set forth in the
above table and the principal amount of Bonds applied as a credit
against such requirement.
The Issuer hereby covenants and agrees that so long as
any of the Bonds issued hereunder are outstanding it will
deposit, or cause to be deposited, in the Bond Fund sufficient
Revenues promptly to meet and pay the principal of and premium,
if any, and interest on the Bonds as the same become due and
payable. The Issuer further covenants and agrees that should
there be a default or Event of Default under the Loan Agreement
the Issuer shall fully cooperate with the Trustee and with the
Bondholders to the end of fully protecting the rights and
security of the Bondholders. Nothing herein shall be construed
as requiring the Issuer to use or deposit any moneys from any
source other than Revenues.
Subject to the provisions of Section 4.05 and Section
4.08(c) of the Indenture, moneys in the Bond Fund shall be used
solely for the payment of the principal of and premium, if any,
and interest on the Bonds and for the redemption of the Bonds at
or prior to maturity, all in accordance with the provisions of
the Indenture.
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After the Conversion Date and if no Letter of Credit is
in effect with respect to the Bonds, whenever the amount in the
Bond Fund, from any source whatsoever, is sufficient to redeem
all the Bonds outstanding hereunder and to pay interest to accrue
thereon prior to such redemption, the Issuer covenants and agrees
that upon the request of the Company it will take and cause to be
taken the necessary steps to redeem all of said Bonds on the next
succeeding redemption date for which the required redemption
notic~ may be given.
Nothing in this Bond Legislation is intended to prevent
the Company from delivering moneys to the Trustee pursuant to
Section 4.3(b) of the Loan Agreement for application as provided
in such Section.
Section 13. Covenants of the Issuer. In addition to
the other covenants of the Issuer in this Bond Legislation and in
the Indenture, the Issuer further covenants with the Bondholders
and the Trustee as follows:
(a) Payment of Principal, Premium, if Any, and Interest.
The Issuer will, solely from the sources herein provided, pay the
principal of and premium, if any, and interest on every Bond on
the dates and at the places and in the manner mentioned in the
Bonds according to the true intent and meaning thereof.
(b) Performance of Covenants, Authority and Actions.
The Issuer covenants that it will faithfully observe and perform
at all times all agreements, covenants, undertakings,
stipulations on its part to be observed and performed and
contained in the Bond Legislation, the Indenture and in any and
every Bond executed, authenticated and delivered under the
Indenture and in all proceedings pertaining to the Bonds or the
Loan Agreement. The Issuer covenants that it is duly authorized
by the Constitution and laws of the State, particularly and
without limitation Chapter 165 of the Ohio Revised Code, and the
authorities therein mentioned, to issue the Bonds authorized
hereby and to execute, deliver and perform the Indenture, and to
assign and pledge the Revenues in the manner and to the extent
herein and in the Indenture set forth; that all actions on its
part for the issuance of the Bonds and execution, delivery and
performance of the Indenture have been duly and effectively
taken, and that the Bonds in the hands of the holders thereof are
and will be valid and binding special obligations of the Issuer
according to the terms thereof. All the obligations and duties
of the Issuer and its officers in its behalf, under the Loan
Agreement, this Bond Legislation and the Indenture are hereby
established as duties specifically enjoined by law and resulting
from an office, trust or station of the Issuer and its officers
within the meaning of Section 2731.01 of the Ohio Revised Code.
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(c) Maintenance of Lien. The Issuer will not pledge or
assign the Revenues, or create or suffer to be created any debt,
lien or charge thereon other than the pledge and assignment under
this Bond Legislation and Indenture.
(d) Inspection of Books. The Issuer covenants and
agrees that all books and documents in its possession relating to
the Facilities and the Revenues shall at all times be open to
inspection by such accountants or other agencies as the Trustee
may from time to time designate.
(e) Recordinqs and Filings. The Issuer covenants that
it will do, execute, acknowledge and deliver or cause to be done,
executed, acknowledged and delivered such indentures supplemental
hereto and such further acts, instruments and transfers as the
Trustee may reasonably require for better pledging and confirming
unto the Trustee any right, title and interest assigned,
transferred and pledged hereby. The Issuer will cause the Loan
Agreement and the Indenture, and any amendments or supplements to
either, and 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 Bonds, to be registered, recorded and filed and
re-registered, re-recorded and re-filed in such manner and in
such places as may be required by law in order at all times fully
to preserve and protect the security of the holders of the Bonds
and the rights of the Trustee under the Indenture.
(f) Rights Under Loan Aqreement. The Loan Agreement,
a duly executed counterpart of which upon delivery of the Bonds
will have been filed with the Trustee, sets forth the covenants
and obligations of the Issuer and the Company, including a
provision in Section 7.8 thereof that subsequent to the issuance
of Bonds and prior to payment of the Bonds in full or provision
for payment thereof in accordance with the provisions hereof and
of the Indenture, the Loan Agreement may not be amended, changed,
modified, altered, or terminated (other than as provided therein
or herein) without the prior written consent of the Trustee, and
- reference is hereby made to the Loan Agreement for a detailed
statement of said covenants and obligations of the Company under
the Loan Agreement.
(g) Enforcement of Loan Agreement. The Issuer
covenants that it shall do all things on its part necessary to
keep the Loan Agreement in effect in accordance with the terms
thereof and will take all actions necessary to enforce and
protect the rights of the Issuer under the Loan Agreement,
including actions at law and in equity, as may be appropriate.
Section 14. Investments. Any moneys held as a part of
the Bond Fund, the Construction Fund, the Issuance Expense Fund
or any other fund or account held by the Trustee pursuant to the
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Indenture or the Loan Agreement shall, at the written-direction
of the Authorized Company Representative, as defined in the Loan
Agreement, or at the oral direction of such Authorized Company
Representative, confirmed as soon as practicable in writing, be
held as a cash account or be invested or reinvested by the
Trustee in Eligible Investments. The type, amount and maturity
(which shall be such so that the moneys invested will be
available to make payments from the respective funds in
accordance with the provisions of the Bond Legislation) of such
investments shall be as specified by said Authorized Company
Representative. Any such investment made by the Trustee may be
purchased from or through the Trustee or any affiliate of the
Trustee, and such investments shall be held by or under the
control of the Trustee and shall be deemed at all times a part of
the Bond Fund, the Construction Fund, the Issuance Expense Fund
or such other fund or account, as the case may be, and the
interest accruing thereon and any profit realized therefrom shall
be credited to. such respect i ve fund or account and any loss
resulting from such investments shall be charged to such
respective fund or account. The Trustee shall sell and reduce to
cash a sufficient portion of investments held in any fund or
account under the provisions of this Section whenever the cash
balance in any such fund or account is insufficient to pay the
obligations properly chargeable to such fund or account when due
and shall advise the Company when any such action is taken. The
Issuer covenants that the Loan Agreement will include a covenant
by the Company that moneys in all funds and accounts will be so
invested as not to make any of the Bonds arbitrage bonds within
the meaning of Section I03(c) of the Code.
Section 15. Arbitraqe Provisions. The Issuer will
restrict the use of the proceeds of the Bonds in such manner and
to such extent, if any, as may be necessary, after taking into
account reasonable expectations at the time of the delivery of
and payment for the Bonds, so that they will not constitute
arbitrage bonds within the meaning of Section l03(c) of the
Code. The City Manager and the Director of Finance of the
Issuer, and either of them, are authorized and directed, alone or
in conjunction with any other officer, employee, consultant or
agent of the Issuer, or with the Company or any employee,
consultant or agent of the Company, to give an appropriate
certificate of the Issuer for inclusion in the transcript of
proceedings for the Bonds, setting forth the reasonable
expectations of the Issuer regarding the amount and use of the
proceeds of the Bonds and the facts and estimates on which they
are based, all as of the date of delivery of and payment for the
Bonds. The Issuer shall furnish to the Original Purchaser a true
transcript of proceedings, certified by the Clerk or Assistant
Clerk of the Legislative Authority, of all proceedings with
reference to the issuance of the Bonds along with such other
information from the records as is necessary to determine the
regularity and validity of the issuance of the Bonds.
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Section 16. Indenture and Loan Aqreement. In order to
secure the payment of the principal of and premium, if any, and
interest on the Bonds, the City Manager or the Director of
Finance of the Issuer shall execute, acknowledge and deliver, as
may be appropriate, in the name and on behalf of the Issuer, the
Indenture and the Loan Agreement, in substantially the forms
submitted to the Issuer, which instruments are hereby approved in
all respects with such changes therein not inconsistent with this
Bond Legislation and not substantially adverse to the Issuer as
may be permitted by law and approved by the officer executing the
same. The approval of such changes by such officer, and that
such are not substantially adverse to the Issuer, shall be
conclusively evidenced by the execution of the Indenture and the
Loan Agreement, respectively, by such officer. The Clerk of
Council of the Issuer is hereby directed to insert copies thereof
in the record of proceedings of the Issuer with the minutes of
this meeting and to certify thereon that the same is in the form
so submitted to the Issuer and approved by this Bond Legislation
and identified herein as the Indenture and the Loan Agreement.
The Indenture contains provisions authorized and permitted by
Chapter 165 of the Ohio Revised Code, and this Bond Legislation
shall constitute a part thereof as therein provided and for all
purposes of the Indenture, including the provisions thereof
relating to supplemental indentures and to the severability of
provisions of the Indenture.
Section 17. Remarketinq Aqent. The Ohio Company,
Columbus, Ohio, is hereby appointed the Remarketing Agent for the
Bonds. The Remarketing Agent shall designate to the Trustee, the
Company, the Issuer and the Bank its principal office and signify
the acceptance of the duties and obligations imposed upon it
under the Indenture by a written instrument of acceptance
delivered to the Issuer and the Trustee under which the
Remarketing Agent will agree, particularly:
(a) to deliver to the Trustee all moneys delivered
to it for the purchase of Bonds pursuant to Section 7(c)
,- of this Bond Legislation;
(b) to keep such books and records as shall be
consistent with prudent industry practice and to make
such books and records available for inspection by the
Issuer, the Company, the Bank and the Trustee at all
reasonable times; and
(c) not later than the twelfth Business Day
preceding each Adjustment Date, to give telegraphic or
telephonic notice, promptly confirmed by a written
notice, to the Company, the Trustee and the Bank
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specifying the interest rate on the Bonds for the
Interest Period commencing on such Adjustment Date,
determined pursuant to and in accordance with Section 4
of this Bond Legislation.
The Issuer shall cooperate with the Trustee to cause the
necessary arrangements to be made and to be thereafter continued
whereby Bonds executed by the Issuer and authenticated by the
Trustee shall be made available to the Remarketing Agent to the
extent necessary for delivery to purchasers thereof.
The Remarketing Agent may at any time resign and be
discharged of the duties and obligations created by the Indenture
by giving at least ninety (90) days' written notice to the
Issuer, the Company, the Bank and the Trustee. The Remarketing
Agent may be removed at any time, at the direction of the Company
upon at least 90 days written notice, by an instrument signed by
the City Manager or the Director of Finance of the Issuer and
filed with the Remarketing Agent, the Bank and the Trustee. In
the event of the resignation or removal of the Remarketing Agent,
a successor Remarketing Agent shall be designated by the City
Manager or the Director of Finance of the Issuer, at the
direction of the Company. Any successor Remarketing Agent shall
be authorized by law to perform all the duties imposed upon it by
the Indenture and shall be a commercial bank having an aggregate
of capital, paid in surplus and retained earnings of not less
than $50,000,000 or a member of the National Association of
Securities Dealers, Inc. having a capitalization of at least
$15,000,000 or having a line of credit with a commercial bank in
the amount of at least $15,000,000.
Section 18. Other Documents. The City Manager and the
Director of Finance of the Issuer, and either of them, are hereby
further authorized and directed to execute such certifications,
financing statements, assignments and instruments and to accept
delivery of such instruments as are in the opinion of the counsel
to the Issuer necessary to perfect the pledges set forth in the
Indenture and to consummate the transactions provided for in the
Indenture, the Loan Agreement and the Contract of Purchase.
Section 19. Prevailinq Waqe Rates. All wages paid to
laborers and mechanics employed on the Facilities shall be paid
at the prevailing rates of wages of laborers and mechanics for
the class of work called for by the Facilities, 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 such requirements shall not apply where the
federal government or any of its agencies furnished by loan or
grant all or any part of the funds used in connection with the
Facilities and prescribes predetermined minimum wages to be paid
to such laborers and mechanics; and provided, further, that
should the Company or other non public user beneficiary undertake
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~
,.
construction of the Facilities to be performed by its regular
bargaining unit employees who are covered under a collective
bargaining agreement which was in existence prior to the
Commitment Date, as defined in the Loan Agreement, the rate of
pay provided under the collective bargaining agreement may be
paid to such employees. To the extent required by Section
4115.032 of the Ohio Revised Code, the Company shall comply, and
shall require compliance by all contractors and subcontractors
working on the Facilities, with Sections 4115.03 through 4115.16,
inclusive, of the Ohio Revised Code.
i Section 20. Open Meetinqs. It is found and determined
that all formal actions of the Issuer concerning and relating to
the adoption of this resolution were adopted in an open meeting
of the Legislative Authority, and that all deliberations of the
Legislative Authority and any of its committees that resulted in
such formal action were in meetings open to the public, in
compliance with all legal requirements, including Section 121.22
of the Ohio Revised Code.
Section 21. Determination and Approval of Leqislative
Authority. Pursuant to Section 165.03, Ohio Revised Code, the
Legislative Authority hereby ~inds and determines that the
Facilities constitute a "project" as defined in Chapter 165 of
the Ohio Revised Code and are consistent with the provisions of
Section 13 of Article VIII, Ohio Constitution.
The Legislative Authority, as the "applicable elected
representative" of the Issuer for purposes of Section 103(k) of
the Code, hereby approves the issuance of the Bonds in the
principal amount of $2,100,000, the proceeds of which will be
loaned to the Company to assist the Company in acquiring,
constructing and equipping the Facilities, office building
complex (consisting of five office buildings aggregating
approximately 29,000 square feet) and the site thereof, which
Facilities are located on the east side of U.S. 33 south of Ohio
Route 161 in Dublin, Ohio. The Facilities will be owned by the
Company and leased to various commercial tenants.
-
Section 22. Emergency; Effective Date. This ordinance
is hereby determined to be an emergency measure, the immediate
passage of which is necessary for the preservation of the public
peace, health, safety or welfare and for the further reason that
the ordinance must be immediately effective so that completion of
the acquisition, construction and equipping of the Facilities can
be effective as soon as possible in order that the Issuer and its
residents may enjoy the benefits of the additional employment
opportunities at the earliest time; wherefore, this ordinance
shall be in full force and effect immediately f . its passage.
Passed: October 6, 1986
Mayor
Attest :J/-vfh1,(.k ~ ~~ ' hereby corf( th .
v I Y I at COPIPS of th" .
II.we DC:::rri in IRe ";/1 - ,,;S OrdlrJanr;p/Reso'ulion
"VtL:c ^~ . ,as:; rr..'.' _.'. I
Clerk of C cil " e31 'M~ 0:;0 "j . "v~,:;dance w;t1;
-28- U """;"". ..
.. ,Z/rLl~dQ!/; ~
Clerk of Cow/c:. . - - "'-- --
. - '1..,1 _