Explanation
To authorize the issuance of special obligation bonds in an amount not to exceed $2,000,000 for the purpose of providing funds necessary to pay, or reimburse the payment of, costs of certain public improvements to be acquired by the City pursuant to an Agreement between the City and National Church Residences, and to pay the costs of issuance of such special obligations.
Title
Authorizing the issuance of special obligation bonds in an amount not to exceed $2,000,000 for the purpose of providing funds necessary to pay, or reimburse the payment of, costs of certain public improvements to be acquired by the City pursuant to an Agreement between the City and National Church Residences, and to pay the costs of issuance of such special obligations. ($2,000,000)
Section 55(b) of the City Charter
Body
WHEREAS, pursuant to Ordinance 1721-02, adopted by this Council on November 25, 2002 (the "TIF Ordinance"), the City of Columbus, Ohio (the "Municipality") declared that (a) 100% of the increase in true value of certain property (described in the TIF Ordinance and herein collectively referred to as the "TIF Property") subsequent to the effective date of that ordinance is a public purpose and exempt from real property taxation, and (b) certain public improvements identified in the TIF Ordinance (the "Public Improvements") are public improvements that benefit or serve, or that once made will benefit or serve, the TIF Property; and
WHEREAS, pursuant to Section 3 of the TIF Ordinance, owners of the TIF Property are required to make service payments in lieu of real property tax payments to the County Treasurer of Franklin County, Ohio (the "Treasurer"), such service payments to be in amounts equal to the real property tax payments that would have been payable on the improvements exempted from taxation by the TIF Ordinance had no such exemption been granted; and
WHEREAS, pursuant to the TIF Ordinance, a portion of the above described service payments are to be paid by the Treasurer to the Licking Heights Local School District, and the balance of the service payments are to be paid by the Treasurer to the Municipality for deposit to the credit of the Waggoner Road Project Municipal Public Improvement Tax Equivalent Fund (the "TIF Account"), which account was established in Section 4 of the TIF Ordinance; and
WHEREAS, pursuant to an agreement to be entered into with National Church Residences (the "Developer") and authorized by separate ordinance of this Council adopted on the date of adoption of this ordinance (the "Project Acquisition Agreement"), the Municipality will agree to acquire certain public infrastructure improvements, which include streets, public alleys, road and other thoroughfares, sidewalks, public utilities, bridges, and pedestrian walkways, constructed within the public right-of-way (the "Public Improvements"), but solely from moneys deposited in the TIF Account, including, but not limited to, moneys constituting the proceeds of special obligations of the Municipality payable solely from moneys in the TIF Account;
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF COLUMBUS:
SECTION 1. Definitions
When used in this Ordinance, and in addition to the words and terms elsewhere defined in this Ordinance, the following words and terms as used in this Ordinance 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:
"Alternate Letter of Credit" means an irrevocable letter of credit, other than the Letter of Credit, issued by a commercial bank or other financial institution meeting the Letter of Credit Conditions, which Alternate Letter of Credit provides for payment of (i) principal of the Bonds, (ii) interest on the Bonds for not less than 35 days at the Maximum Interest Rate, and (iii) purchase price of Bonds in the Weekly Mode tendered or deemed tendered for purchase pursuant to Section 7 of this Ordinance and not remarketed. Any Alternate Letter of Credit must provide that if the Bond Registrar or the Tender Agent makes a drawing thereunder by 3:00 p.m., Columbus, Ohio time, on any Business Day, the Letter of Credit Issuer will provide immediately available funds to the Bond Registrar or the Tender Agent, as the case may be, prior to 1:00 p.m., Columbus, Ohio time, on the next succeeding Business Day.
"Authorized Denomination" means (i) when the Bonds are in the Weekly Mode, $100,000 or any integral multiple of $5,000 in excess thereof, and (ii) when the Bonds are in the Fixed Rate Mode, $5,000 or any integral multiple thereof.
"Bank Rate" means the rate of interest per annum to be borne by the LOC Bonds, as determined in accordance with the Letter of Credit Agreement.
"BMA Index" means, as of any date, the seven-day high grade market index of tax exempt variable rate demand obligations, as produced by Municipal Market Data or any successor thereto and published or made available by The Bond Market Association ("BMA"), or any person acting in cooperation or under the sponsorship of BMA, or, if such index is unavailable, then such other publicly available index or measurement of seven-day yields on high grade tax exempt variable rate demand obligations selected by the Municipality and agreed to by the Remarketing Agent.
"Bond Purchase Contract" means the Bond Purchase Contract between the Municipality and the Original Purchaser, providing for the sale of the Bonds to the Original Purchaser.
"Bond Register" means the books and records necessary for the registration, exchange and transfer of Bonds, maintained by the Bond Registrar pursuant to Section 10 of this Ordinance.
"Bond Registrar" means the Board of Trustees of the Sinking Fund of the City of Columbus, Ohio.
"Bond Service Charges" means, for any period of time, the principal of (including scheduled optional redemption and mandatory sinking fund payments) and interest and any premium due on the Bonds for that period.
"Bondholder" or "holder" means the person in whose name a Bond is registered.
"Bonds" means the bonds of the Municipality authorized in Section 2 of this Ordinance.
"Book entry form" or "book entry system" means a form or system under which (i) the beneficial right to payment of principal of and interest and premium, if any, on the Bonds may be transferred only through a book entry and (ii) physical Bonds in fully registered form are issued only to a Depository or its nominee as registered owner, with the Bonds "immobilized" to the custody of the Depository, and the book entry is the record that identifies the owners of beneficial interests in those Bonds.
"Business Day" means any day of the year other than: (a) a Saturday; (b) a Sunday; (c) a day on which banks in any city in which the Principal Office of the Tender Agent or the Principal Office of the Letter of Credit Issuer, if any, is located are required or authorized by law to remain closed; (d) a legal holiday in the Municipality; or (e) a day on which The New York Stock Exchange is closed.
"Capitalized Interest Subaccount" means the Capitalized Interest Subaccount in the TIF Account established in Section 13 of this Ordinance.
"Certificate of Award" means the Certificate of Award described in Section 12 of this Ordinance.
"Clerk" means the Clerk of Council of the Municipality.
"Code" means the Internal Revenue Code of 1986, 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.
"Conversion Date" means the Interest Payment Date upon which the Bonds are converted to the Fixed Rate Mode in accordance with Section 8 of this Ordinance.
"Council" means the City Council of the Municipality.
"Depository" means The Depository Trust Company (a limited purpose trust company), New York, New York, its successors and their assigns, and any successor depository appointed in accordance with Section 11 of this Ordinance. Any successor depository shall be a clearing agency under federal law operating and maintaining, together with its participants, a book entry system to record beneficial ownership of obligations such as the Bonds, and to effect transfers of obligations such as the Bonds in book entry form.
"Developer" means National Church Residences, an Ohio nonprofit corporation, and its successors and assigns.
"Director of Finance" means the Municipality's Director of the Department of Finance and any officer of the Municipality who succeeds to the functions thereof.
"Executive Officer" means the Mayor of the Municipality and any officer of the Municipality who succeeds to the function thereof.
"Expiration Date" means the date established in the Letter of Credit for the expiration thereof in accordance with its terms, initially the date set forth in the Certificate of Award, and in the event such date is extended, such date as extended; or such earlier date, if any, on which the Letter of Credit terminates pursuant to an LOC Notice of Default.
"Fiscal Officer" means the City Auditor of the Municipality and any officer of the Municipality who succeeds to the functions thereof.
"Fixed Interest Rate" means a fixed non-adjustable interest rate on the Bonds to be borne by the Bonds while the Bonds are in the Fixed Rate Mode.
"Fixed Rate Mode" means that Interest Rate Mode in which the Bonds bear interest at the Fixed Interest Rate from the Conversion Date to the Maturity Date.
"Interest Determination Date" means, with respect to Bonds in the Weekly Mode, the Wednesday immediately preceding the commencement of such Interest Period, except that (i) if such day is not a Business Day, then the Interest Determination Date shall be the next preceding Business Day, and (ii) there shall be no Interest Determination Date for the Interest Period beginning on the Original Issuance Date.
"Interest Payment Date" means (i) while the Bonds are in the Weekly Mode, the first Business Day of each month, commencing with the month and year specified in the Certificate of Award, and (ii) while the Bonds are in the Fixed Rate Mode, each June 1 and December 1.
"Interest Period" means, with respect to Bonds in the Weekly Mode, a period from and including the Thursday in each calendar week to and including the Wednesday in the following week, except that the first Interest Period shall be the period from and including the Original Issuance Date to and including the Wednesday identified in the Certificate of Award as the last day of the first Interest Period.
"Interest Rate Mode" means the Weekly Mode or and the Fixed Rate Mode.
"Letter of Credit" means the irrevocable Letter of Credit issued by the Letter of Credit Issuer providing for payment of (i) principal of the Bonds, (ii) interest on the Bonds for not less than 35 days at the Maximum Interest Rate, and (iii) purchase price of Bonds in the Weekly Mode tendered or deemed tendered for purchase pursuant to Section 7 of this Ordinance and not remarketed. After the delivery of an Alternate Letter of Credit to the Tender Agent pursuant to Section 14 of this Ordinance, the Alternate Letter of Credit shall become the Letter of Credit.
"Letter of Credit Agreement" means the Reimbursement Agreement between the Developer and the Letter of Credit Issuer, and upon the delivery of an Alternate Letter of Credit, means the agreement between the Developer and the issuer of the Alternate Letter of Credit providing for the Alternate Letter of Credit.
"Letter of Credit Conditions" means, with respect to any Letter of Credit Issuer (the initial Letter of Credit Issuer and the issuer of any Alternate Letter of Credit), the following conditions shall have been satisfied by the Developer prior to the issuance of such Letter of Credit (including an Alternate Letter of Credit): (i) the Bond Registrar shall have received, (A) with respect to the initial issuance of the Letter of Credit, on or prior to the issuance the Bonds, or (B) with respect to the issuance of an Alternate Letter of Credit, not less than thirty (30) days prior to the Interest Payment Date next preceding the Letter of Credit Termination Date, an opinion of counsel for the issuer of the Letter of Credit that it constitutes a legal, valid and binding obligation of the issuer in accordance with its terms; and (ii) the bank issuing the Letter of Credit (or the holding company of such issuer) has unsecured, uninsured and unguaranteed long-term debt rated by a nationally recognized rating agency in one of its three highest rating categories.
"Letter of Credit Event" means (a) an Expiration Date, or (b) the effective date of an Alternate Letter of Credit delivered to the Tender Agent pursuant to Section 14 of this Ordinance.
"Letter of Credit Issuer" means the issuer of the Letter of Credit, initially, such commercial bank or other financial institution meeting the Letter of Credit Conditions and specified in the Certificate of Award, and after the delivery of any Alternate Letter of Credit, the issuer of the Alternate Letter of Credit. "Principal Office" of the Letter of Credit Issuer means the office or offices designated from time to time as such by the Letter of Credit Issuer in writing to the Municipality, the Remarketing Agent, and the Tender Agent.
"LOC Bonds" mean Bonds which have been purchased and are being held by or on behalf of the Letter of Credit Issuer as a result of a draw on the Letter of Credit pursuant to subsection (g) of Section 7 of this Ordinance.
"LOC Tender Date" means the date on which all Bonds are to be purchased in accordance with subsections (b) and (o) of Section 7 of this Ordinance as a result of the delivery of a LOC Notice of Default.
"LOC Notice of Default" means a written notice from the Letter of Credit Issuer to the Municipality and the Tender Agent stating that (i) an Event of Default, as defined in the Letter of Credit Agreement, has occurred; and (ii) that the Letter of Credit will terminate on the date set forth in the notice.
"Mandatory Redemption Dates" means December 1 in the years, if any, specified in the Certificate of Award, which are dates on which the Bonds are to be redeemed pursuant to the mandatory sinking fund redemption requirements set forth in Section 5 of this Ordinance.
"Maturity Date" means the stated maturity date of the Bonds, which shall be set forth in the Certificate of Award, but which shall be on or before December 1, 2029.
"Maximum Interest Rate" means the maximum interest rate as set forth in the Letter of Credit, which shall not be less than ten per cent (10%) per annum.
"Municipality" means the City of Columbus, Ohio.
"Original Issuance Date" means the date on which the Bonds are first authenticated and delivered pursuant to the Bond Purchase Contract, which date shall be set forth in the Certificate of Award.
"Original Purchaser" means the person identified in the Certificate of Award as the purchaser of the Bonds upon initial issuance.
"Project Acquisition Agreement" means the agreement between the Municipality and the Developer authorized by separate ordinance duly adopted by this Council.
"Project Fund" means the Fund No. 768 in the City Treasury.
"Public Improvements" means those public improvements described on Exhibit B to the TIF Ordinance, including, but not limited to, streets, public alleys, road and other thoroughfares, sidewalks, public utilities, bridges, and pedestrian walkways, constructed within the public right-of-way.
"Purchase Price" means the amount paid by the Original Purchaser to the Municipality as consideration for the Bonds, which amount shall be set forth in the Certificate of Award, but such amount shall not be less than 100% of the original aggregate principal amount of the Bonds.
"Record Date" means (i) while the Bonds are in the Weekly Mode, the day preceding the related Interest Payment Date, and (ii) while the Bonds are in the Fixed Rate Mode, the fifteenth day of the month preceding the month in which occurs the related Interest Payment Date.
"Remarketing Agent" means the Remarketing Agent identified in the Certificate of Award, and any successor Remarketing Agent appointed in accordance with Section 15 of this Ordinance. "Principal Office" of the Remarketing Agent means the office or offices designated from time to time as such by the Remarketing Agent in writing to the Municipality and the Tender Agent.
"Remarketing Agent Agreement" means the Remarketing Agent Agreement between the Municipality and the Remarketing Agent, authorized by Section 16 of this Ordinance, and any and all modifications, alterations, amendments and supplements thereto, and includes any agreement between the Municipality and a successor Remarketing Agent.
"Tender Agent" means the Tender Agent identified in the Certificate of Award, and any successor Tender Agent appointed in accordance with Section 16 of this Ordinance. "Principal Office" of the Tender Agent means the office or offices designated from time to time as such by the Tender Agent in writing to the Municipality and the Remarketing Agent.
"Tender Agent Agreement" means the Tender Agent Agreement between the Municipality and the Tender Agent, authorized by Section 16 of this Ordinance, and any and all modifications, alterations, amendments and supplements thereto, and includes any agreement between the Municipality and a successor Tender Agent.
"TIF Account" means the Waggoner Road Project Municipal Public Improvement Tax Equivalent Fund No. 410 established in Section 4 of the TIF Ordinance.
"TIF Ordinance" means Ordinance 1721-02 adopted by the City Council of the Municipality on November 25, 2002.
"Weekly Mode" means that Interest Rate Mode in which the Bonds bear interest at an interest rate which is adjusted weekly in accordance with the provisions of Section 6 of this Ordinance.
SECTION 2. Authorization of the Bonds
The Bonds shall be issued in an aggregate principal of Two Million Dollars ($2,000,000), or such lesser amount as shall be specified in the Certificate of Award, for the purpose of providing funds (a) to pay the cost of acquiring the Public Improvements pursuant to the Project Acquisition Agreement, (b) to provide for the payment of capitalized interest on the Bonds and (c) to pay the costs of issuance of the Bonds.
SECTION 3. Special Obligations
The Bonds shall be special obligations of the Municipality, and principal of and interest and premium, if any, on the Bonds shall be payable solely from amounts in the TIF Account. The Bonds shall not be general obligations of the Municipality and neither the full faith and credit nor the taxing power of the Municipality shall be pledged to the payment of the Bonds. The bonds shall not be deemed to be "obligations" within the meaning of Section 325.05 of the Columbus City Code.
SECTION 4. Designation
The Bonds shall be designated "City of Columbus, Ohio Adjustable Rate Tax Increment Financing Bonds (Waggoner Road Project)", and shall be issued and sold on or before December 31, 2004.
SECTION 5. Form; Maturity and Redemption
(a) The Bonds shall be issued only as fully registered bonds in an Authorized Denomination but not exceeding the aggregate principal amount of Bonds; shall be numbered as determined by the Bond Registrar; shall be dated the Original Issuance Date; shall bear interest payable on Interest Payment Dates, until the principal sum is paid; shall bear interest at the rates determined pursuant to Section 6 of this Ordinance; and shall mature on the Maturity Date. If any Interest Payment Date, Mandatory Redemption Date, if any, or Maturity Date is not a Business Day, the payment of Bond Service Charges otherwise due and payable on that day may be made on the next succeeding Business Day with the same force and effect as if made on such Interest Payment Date, Mandatory Redemption Date, or Maturity Date; provided, however, that if the Bonds are in the Weekly Mode the interest portion of the Bond Service Charges shall be calculated and paid based upon a period ending and including the day immediately preceding the day of payment of such Bond Service Charges.
(b) While the Bonds are in the Weekly Mode, Bonds shall be subject to redemption, at the option of the Municipality, on any Business Day, in whole or in part in the Authorized Denomination at a redemption price equal to 100% of the principal amount redeemed plus accrued interest to the redemption date.
(c) While the Bonds are in the Fixed Rate Mode, on or after the December 1 occurring in the year which is a number of years after the Conversion Date equal to the number of full years between the Conversion Date and the Maturity Date, multiplied by 1/2 and rounded up to the nearest whole number, the Bonds shall be subject to redemption at the option of the Municipality in whole at any time or in part (in integral multiples of $5,000) on any Interest Payment Date at a redemption price equal to the par amount of Bonds redeemed plus accrued interest to the date fixed for redemption.
(d) If specified in the Certificate of Award, the Bonds shall be subject to mandatory sinking fund redemption at a redemption price equal to 100% of the principal amount redeemed plus accrued interest to the redemption date on the Mandatory Redemption Dates and in the principal amounts to be set forth in the Certificate of Award.
(e) The Municipality will take all necessary steps (including sending written instructions to the Bond Registrar) to cause the Bonds to be optionally redeemed at a redemption price of one hundred percent (100%) of the principal amount redeemed plus interest accrued to the redemption date, beginning on the first day in December in the year specified in the Certificate of Award, in the principal amounts and on the dates to be certified by the Fiscal Officer to the Bond Registrar on the Original Issuance Date, which certificate shall be deemed to be a notice of optional redemption as described in paragraph (f) below. The Fiscal Officer may modify an optional redemption notice and schedule by certifying a new schedule for optional redemption to the Bond Registrar; provided that the Bond Registrar shall not accept a new schedule for optional redemption unless such new schedule is acknowledged and agreed to, in writing, by the Letter of Credit Issuer and the Developer.
(f) Except in the case of redemption pursuant to any mandatory redemption provisions hereof, Bonds shall be redeemed only by written notice from the Municipality to the Bond Registrar and the Letter of Credit Issuer. That notice shall specify the redemption date and the principal amount of each maturity of Bonds to be redeemed, and shall be given at least 45 days prior to the redemption date or such shorter period as shall be acceptable to the Bond Registrar. Except with the prior written consent of the Letter of Credit Issuer, in the case of any optional redemption of Bonds, there shall be deposited with the Bond Registrar concurrently with the notice specified in the immediately preceding sentence funds which, in addition to any other monies available therefor and held by the Bond Registrar, will be sufficient to redeem at the redemption price thereof, plus interest accrued to the redemption date, all of the redeemed Bonds for which notice of redemption is to be given.
(g) The Municipality shall have the option to deliver to the Bond Registrar for cancellation Bonds in any aggregate principal amount and to receive a credit against (i) in the case of Bonds for which the Certificate of Award specifies that the Bonds are subject to mandatory sinking fund redemption, the then current mandatory sinking fund requirement for Bonds (and corresponding mandatory redemption obligation), and (ii) in the case of Bonds for which a notice of optional redemption has been given, the amount of the next succeeding optional redemption amount for the Bonds. A credit against (x) in the case of Bonds for which the Certificate of Award specifies that the Bonds are subject to mandatory sinking fund redemption, the then current mandatory sinking fund requirement (and corresponding mandatory redemption obligation) or (y) in the case of Bonds for which a notice of optional redemption has been given, , the amount of the next succeeding optional redemption amount for the Bonds, also shall be received by the Municipality for any Bonds, which prior thereto have been redeemed (other than through the operation of the mandatory sinking fund requirements) or purchased for cancellation and canceled by the Bond Registrar, to the extent not applied theretofore as a credit against any redemption obligation.
(h) Each Bond delivered pursuant to subsection (g) above, previously redeemed, or purchased and canceled, shall be credited by the Bond Registrar at 100% of the principal amount thereof against the then current mandatory sinking fund obligation or required optional redemption payment of Bonds. Any excess of that amount over the then current mandatory sinking fund requirement or required optional redemption payment shall be credited against subsequent mandatory sinking fund redemption obligations or required optional redemption with respect to the Bonds in the order directed by the Municipality.
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(i) If fewer than all of the Bonds are to be redeemed, the selection of Bonds to be redeemed, or portions thereof in an Authorized Denomination, shall be made by the Bond Registrar in any such manner as the Bond Registrar may determine, except that LOC Bonds shall be redeemed prior to the redemption of any other Bonds. If it is determined that a Bond shall be partially redeemed, then the Bondholder of that Bond shall surrender the Bond to the Bond Registrar (i) for payment of the redemption price of the portion called for redemption (including without limitation, the interest accrued to the date fixed for redemption), and (ii) for issuance, without charge to the Bondholder thereof, of a new Bond or Bonds in the Authorized Denomination in an aggregate principal amount equal to the unmatured and unredeemed portion of the Bond surrendered.
(j) The right of redemption shall be exercised by notice specifying by numbers the Bonds to be called, the redemption price to be paid, the date fixed for redemption and the places where amounts due upon such redemption are payable. The Bond Registrar shall cause such notice to be given by first class mail, postage prepaid, to the holder or holders of the Bonds to be redeemed, mailed to the address shown on the registration books. Such notice may set forth any additional information relating to such redemption. Such notice shall be given at least fifteen (15) days prior to the redemption date if the Bonds are in the Weekly Mode and at least thirty (30) days prior to the redemption date if the Bonds are in the Fixed Rate Mode. All Bonds so called for redemption shall cease to bear interest on the redemption date, provided moneys for the redemption of said Bonds are on deposit at the office of the Bond Registrar at that time. If, because of the temporary or permanent suspension of regular mail service, or for any other reason, it is impossible or impractical to give such notice of redemption by mail in the manner herein provided, then such other manner of giving notice in lieu thereof as the Bond Registrar shall, in its discretion, select shall constitute a sufficient notice. Any defect in the notice or any failure to give or receive such notice with respect to any Bond shall not affect the validity of any proceedings for the redemption of any other Bond.
SECTION 6. Interest Rates
(a) The Bonds shall be issued in the Weekly Mode. For the first Interest Period, the Bonds shall bear interest at the rate per annum set forth in the Certificate of Award. Thereafter, for each Interest Period while the Bonds are in the Weekly Mode, 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 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 interest rate necessary) to enable the Remarketing Agent to remarket all outstanding Bonds on the first day of such Interest Period at a price equal to 100% of the principal amount thereof.
(b) For the second Interest Period and each Interest Period thereafter while the Bonds are in the Weekly Mode, the interest rate to be borne by Bonds shall be determined as provided in subsection (a) of this Section 6, and shall be made available to the Municipality, the Bond Registrar, the Letter of Credit Issuer, if any, the Developer, and the Tender Agent on the Interest Determination Date for such Interest Period. If, for any Interest Period, the Remarketing Agent fails to determine the interest rate to be borne by the Bonds as provided for in this Section 6, the interest rate for such Interest Period shall be equal to the BMA Index on the Interest Determination Date for such Interest Period.
(c) The Interest Rate Mode may be changed from the Weekly Mode to the Fixed Rate Mode, in which event the Bonds will bear interest at the Fixed Interest Rate as determined in Section 8 of this Ordinance. Subsequent to the conversion of the Bonds to the Fixed Rate Mode, no further changes in Interest Rate Mode shall be permitted.
(d) While the Bonds are in the Weekly Mode, interest shall be computed on the basis of a year of 365 or 366 days, as appropriate, and on the actual number of days elapsed. While the Bonds are in the Fixed Rate Mode, interest shall be computed on the basis of a 360-day year consisting of twelve 30 day months.
(e) Notwithstanding anything to the contrary contained in this Ordinance, each LOC Bond shall bear interest (i) on the principal amount thereof at the Bank Rate for each day it is an LOC Bond, (ii) on any interest that accrued on such Bond to but excluding the date it became an LOC Bond (the "Purchase Date"), but only to the exent that such accrued interest was included in the price for such Bond on the Purchase Date, at the Bank Rate for each day from and including the Purchase Date to but excluding the first Interest Payment Date after the Purchase Date, and (iii) on any overdue interest on such Bond (including, without limitation, interest described in clause (ii) which is not paid on the first Interest Payment Date after the Purchase Date) for each day until paid, at the Bank Rate for such day. All interest on an LOC Bond shall be payable on the Interest Payment Dates, on the date that such LOC Bond ceases to be an LOC Bond, on the date of redemption or maturity, and after maturity on demand.
(f) Notwithstanding anything to the contrary contained in this Ordinance, while the Bonds are in the Weekly Mode, the interest rate borne by the Bonds shall not exceed the Maximum Interest Rate.
(g) The determination of the interest rate borne by Bonds as provided in this Section 6 with respect to Bonds in the Weekly Mode or in Section 8 of this Ordinance with respect to Bonds in the Fixed Rate Mode shall be conclusive and binding upon the Municipality, the Bond Registrar, the Remarketing Agent, the Tender Agent, the Letter of Credit Issuer, if any, and the holders of the Bonds.
SECTION 7. Purchase of Bonds.
(a) A Bond in the Weekly Mode, other than an LOC Bond, shall be purchased, on the demand of the holder thereof, on any Business Day at a purchase price equal to the principal amount thereof plus accrued interest, if any, to the date of purchase, upon delivery of an irrevocable written notice of tender substantially in the form of Exhibit A attached to this Ordinance, or irrevocable telephonic notice of tender promptly confirmed in writing, to the Remarketing Agent at its Principal Office, which notice states the date on which such Bond shall be purchased pursuant to this subsection, which date shall be a Business Day not prior to the seventh (7th) day next succeeding the date of the delivery of such notice. The holder of a Bond described in the notice shall deliver such Bond (with instruments of transfer) to the Principal Office of the Tender Agent at or prior to 12:00 noon, Columbus, Ohio time, on the date specified in such notice. Payment of the purchase price of a Bond purchased pursuant to this subsection (a) shall be made to the holder thereof by wire transfer of immediately available funds by the Tender Agent by the close of business on the date of purchase; provided, however, that payment of the purchase price shall be made only if the Bond is so delivered to the Tender Agent and only if the Bond so delivered to the Tender Agent conforms in all respects to the description thereof in the notice described in this subsection (a). A holder who gives notice of tender as set forth above may repurchase the Bonds so tendered on the purchase date specified in such notice if the Remarketing Agent agrees to sell the Bonds so tendered to such holder. If such holder decides to repurchase such Bonds and the Remarketing Agent agrees to sell such Bonds to such holder, the delivery requirements set forth above shall be waived and the Remarketing Agent shall notify the Tender Agent of such waiver by telecopy, telegraph, telex, facsimile transmission or other similar means of communication. In the event a holder of Bonds has given a written notice of tender and has failed to deliver the amount of Bonds specified in such notice and such amount represents less than all of the Bonds registered in such holder's name, Bonds owned by such holder selected by the Bond Registrar, in such manner as the Bond Registrar shall determine, shall be deemed to have been tendered. The determination by the Remarketing Agent as to whether or not a written notice of tender conforms to the provisions of this subsection (a) shall be binding upon the Municipality, the Tender Agent and the holder delivering such notice to the Remarketing Agent.
(b) All Bonds shall be purchased (i) on each Conversion Date, (ii) on the Interest Payment Date immediately preceding each Letter of Credit Event, and (iii) on the LOC Tender Date at a purchase price equal to the principal amount thereof plus accrued interest, if any, to the date of purchase. Holders of the Bonds shall deliver such Bonds (with instruments of transfer) to the Principal Office of the Tender Agent at or prior to 12:00 noon, Columbus, Ohio time, on each Conversion Date, on the Interest Payment Date immediately preceding each Letter of Credit Event and on the LOC Tender Date. Payment of the purchase price of a Bond purchased pursuant to this subsection (b) shall be made to the holder thereof by wire transfer of immediately available funds by the Tender Agent by the close of business on the date of purchase; provided, however, that payment of the purchase price shall be made only if the Bond is so delivered to the Tender Agent.
(c) Upon (i) receipt of written notice from a Bondholder pursuant to subsection (a) of this Section 7 or (ii) receipt of notice from the Bond Registrar that the Bonds will become subject to mandatory tender as a result of the establishment of a Conversion Date or an LOC Tender Date or the occurrence of a Letter of Credit Event, the Remarketing Agent shall offer for sale and use its best efforts to sell the Bonds described in any such notice, any such sale to be made on or after the date such Bonds are to be delivered to the Tender Agent in accordance with subsection (a) of this Section 7 or on or after the date on which the Bonds are subject to mandatory tender in accordance with subsection (b) of this Section 7, as the case may be, at a price equal to 100% of the principal amount thereof plus accrued interest. Notwithstanding the foregoing, the Remarketing Agent shall not offer for sale or sell Bonds purchased pursuant to this Section 7 if the Letter of Credit Issuer, pursuant to provisions of the Letter of Credit Agreement, has directed the Remarketing Agent not to remarket the Bonds.
(d) The purchase price of any Bonds, or portions thereof, purchased in accordance with subsection (a) or (b) of this Section 7 shall be derived from the following sources in the order of priority indicated, and the Tender Agent shall not be obligated to provide funds from any other source:
(i) proceeds of the sale of such Bonds by the Remarketing Agent;
(ii) moneys furnished pursuant to the Letter of Credit.
(e) Not later than 2:00 p.m., Columbus, Ohio time, on the Business Day immediately preceding any day on which Bonds are tendered or deemed tendered pursuant to subsection (a) or (b) of this Section 7, the Remarketing Agent shall give notice, by telecopy, telegraph, telex, facsimile transmission or other similar means of communication, to the Municipality, the Letter of Credit Issuer, the Developer, and the Tender Agent specifying the principal amount of such Bonds, if any, not remarketed by it as of such day pursuant to subsection (c) of this Section 7.
(f) Not later than 10:00 a.m., Columbus, Ohio time, on the day on which Bonds are to be purchased pursuant to subsection (a) or (b) of this Section 7, the Remarketing Agent shall deliver to the Tender Agent, in immediately available funds, the proceeds from the sale of all Bonds remarketed pursuant to subsection (c) of this Section 7.
(g) Not later than 3:00 p.m., Columbus, Ohio time, on the Business day immediately preceding the day on which Bonds are to be purchased pursuant to subsection (a) or (b) of this Section 7, the Tender Agent shall draw on the Letter of Credit, if any, in accordance with its terms and in an amount (the "Required Amount") equal to the amount of additional funds, if any, which the Tender Agent will need, after taking into account the funds expected to be received from the Remarketing Agent pursuant to subsection (f) of this Section 7, in order to pay the purchase price of Bonds payable on such day.
(h) The Tender Agent shall hold in a separate account moneys representing the purchase price of Bonds purchased in accordance with this Section 7 until such Bonds are delivered to the Tender Agent by the holders thereof. Such moneys shall not be invested by the Tender Agent.
(i) Any Bonds sold by the Remarketing Agent pursuant to subsection (c) of this Section 7 shall be delivered to the purchasers thereof identified by the Remarketing Agent. Any Bonds purchased with moneys described in clause (ii) of subsection (d) of this Section 7 shall be held by the Tender Agent on behalf of the Letter of Credit Issuer or transferred to or at the direction of the Letter of Credit Issuer.
(j) Notwithstanding any failure by a holder of Bonds to deliver Bonds which have been tendered pursuant to subsection (a) of this Section 7 or which are to be purchased pursuant to subsection (b) of this Section 7 to the Tender Agent, such Bonds shall be deemed to have been tendered, and funds necessary to purchase such tendered Bonds shall be set aside for such holder and held by the Tender Agent without liability for interest thereon. From and after the date on which such Bonds are deemed to have been tendered, and to the extent the Tender Agent is holding funds to pay the purchase price of such Bonds, such Bonds shall be deemed to be no longer outstanding with respect to the tendering Holder and interest thereon shall cease to accrue, and such holder shall look only to the funds held by the Tender Agent on its behalf for payment.
(k) The Tender Agent shall notify the Bond Registrar of any failure to deliver a Bond tendered pursuant to subsection (a) of this Section 7 or which is to be purchased pursuant to subsection (b) of this Section 7 and the Bond Registrar shall thereupon notify the holder of such Bond by first class mail, postage prepaid, that such Bond is no longer an outstanding Bond and that funds equal to the purchase price of such Bond are being held for such holder without interest, by the Tender Agent. The Bond Registrar shall make note on the registration books that such Bond has been deemed to be no longer an outstanding Bond. Upon delivery to the Tender Agent of a Bond which was deemed tendered pursuant to subsection (j) of this Section 7 but was not timely delivered, the holder thereof shall be entitled to receive the amount held on its behalf by the Tender Agent.
(l) If, by noon, Columbus, Ohio time, on the Business Day immediately succeeding the day on which any Bonds are to be purchased pursuant to subsections (a) or (b) of this Section 7, the Tender Agent shall not have received funds sufficient to purchase such Bonds, the Tender Agent shall give notice of such insufficiency, by telecopy, telegraph, telex, facsimile transmission or other similar means of communication, to the Fiscal Officer, the Developer, and the Bond Registrar, and the Tender Agent shall (i) return any Bonds delivered to it pursuant to subsections (a) or (b) of this Section 7 to the persons from whom such Bonds were received, and (ii) return any moneys delivered to it pursuant to subsections (f) or (g) of this Section 7 to the persons from whom such money was received.
(m) After the Bond Registrar has given notice of the establishment of the Conversion Date or the occurrence of a Letter of Credit Event, pursuant to subsection (d) of Section 8 of this Ordinance, any Bonds purchased pursuant to subsection (a) of this Section 7 shall not be remarketed except to a buyer who, at the time of purchase, specifically acknowledges in writing to the Remarketing Agent that repurchase of such Bonds will occur on the Conversion Date or on the Interest Payment Date immediately preceding the Letter of Credit Event, as the case may be, pursuant to subsection (b) of this Section 7.
(n) The Remarketing Agent shall use its best efforts to remarket LOC Bonds at a price equal to 100% of the principal amount thereof plus accrued interest thereon. If LOC Bonds are remarketed, the Remarketing Agent shall notify the Municipality, the Bond Registrar, the Letter of Credit Issuer, and the Tender Agent of such remarketing not later than 4:00 p.m., Columbus, Ohio time, on the Business Day immediately preceding the day on which the LOC Bonds are to be purchased pursuant to such remarketing. Not later than 10:00 a.m., Columbus, Ohio time, on the day of such purchase (i) the Remarketing Agent shall deliver or cause to be delivered to the Tender Agent, in immediately available funds, an amount equal to the proceeds from the remarketing of the LOC Bonds, and the Municipality shall deliver or cause to be delivered to the Tender Agent, in immediately available funds, an amount equal to the difference between the accrued interest payable with respect to such LOC Bonds calculated based upon the interest rate or rates applicable to such LOC Bonds and the accrued interest included in the remarketing proceeds; provided, however, that amounts payable by the Municipality pursuant to this clause (ii) shall be derived only from amounts on deposit in the TIF Account, and the Municipality shall have no obligation to pay such amounts from any other source of funds. Upon receipt of such moneys, the Tender Agent shall deliver (x) the remarketed Bonds to the purchasers thereof (provided, however, that if the Letter of Credit is then in effect, the Bonds shall not be so delivered until the Tender Agent has received notice from the Letter of Credit Issuer that the Letter of Credit has been reinstated with respect to the Bonds), and (y) the moneys from the Remarketing Agent and the Municipality to the Letter of Credit Issuer.
(o) Upon receipt of an LOC Notice of Default by the Municipality, the Bond Registrar shall establish the LOC Tender Date, which date shall be on or prior to the Business Day immediately preceding the Expiration Date.
SECTION 8. Change of Interest Rate Mode; Notices
(a) At any time subsequent to June 1, 2004, the Municipality may change the Interest Rate Mode from the Weekly Mode to the Fixed Rate Mode for the Bonds by giving written notice, by first class mail postage prepaid, to the Tender Agent, the Letter of Credit Issuer, and the Remarketing Agent, which notice shall specify (i) the Conversion Date, which shall be an Interest Payment Date not earlier than 30 days after the date of such notice, and (ii) the date the Fixed Interest Rate shall be determined (which shall not be less than five Business Days prior to the proposed Conversion Date). Such notice shall be sent not less than 30 days prior to the proposed Conversion Date.
(b) The notice described in subsection (a) of this Section 8 shall be accompanied by a written opinion of nationally recognized bond counsel selected by the Municipality stating that conversion of the Interest Rate Mode is authorized or permitted by this Ordinance and will not adversely affect the exclusion from gross income for purposes of federal income taxation of the interest on the outstanding Bonds.
(c) On the date specified in the notice described in subsection (a) of this Section 8, the Remarketing Agent shall give notice to the Municipality and the Tender Agent of the interest rate applicable to the Bonds effective on the Conversion Date. The Fixed Interest Rate shall be the lowest rate of interest at which the Remarketing Agent has received commitments on or prior to the fifth Business Day next preceding the proposed Conversion Date to purchase all outstanding Bonds on the proposed Conversion Date at a purchase price of 100% of the principal amount thereof.
(d) The Bond Registrar, on behalf of the Municipality, shall give written notice, by first class mail postage prepaid, to the holders of the Bonds of the establishment of a Conversion Date or the LOC Tender Date or the occurrence of a Letter of Credit Event, which notice shall include a statement (i) of the date on which Bonds are to be purchased as a result of the establishment of the Conversion Date or the LOC Tender Date or the occurrence of a Letter of Credit Event, (ii) that this Ordinance provides that the Bonds are required to be delivered to the Tender Agent for purchase on the date specified in such notice, and that Bonds not delivered to the Tender Agent on or before such date shall nonetheless be deemed to have been purchased and, accordingly, no interest subsequent to the date specified in such notice shall be payable to such holders, and (iii) that on the purchase date specified in such notice the Tender Agent shall hold moneys equal to the purchase price for all Bonds in trust for the holders of the Bonds, which moneys shall be paid upon surrender of the Bonds to the Tender Agent. Such notice shall be given at least fifteen (15) days prior to the Conversion Date, the LOC Tender Date or the Interest Payment Date immediately preceding the Letter of Credit Event, as the case may be. If, because of the temporary or permanent suspension of regular mail service, or for any other reason, it is impossible or impractical to give such notice of purchase by mail in the manner herein provided, then such other manner of giving notice in lieu thereof as the Bond Registrar shall, in its discretion, select shall constitute a sufficient notice. Any defect in the notice or any failure to give or receive such notice with respect to any Bond shall not affect the validity of any proceedings for the purchase of any other Bond.
SECTION 9. Execution and Authentication; Payment
(a) The Bonds shall set forth the purpose for which they are issued and that they are issued pursuant to this Ordinance, and shall be executed by the Mayor and the City Auditor of the Municipality, in their official capacities, provided that either or both of those signatures may be a facsimile. No Bond shall be valid or become obligatory for any purpose or shall be entitled to any security or benefit under this Ordinance unless and until a certificate of authentication, as printed on the Bond, is signed by the Bond Registrar as authenticating agent. Authentication by the Bond Registrar shall be conclusive evidence that the Bond so authenticated has been duly issued and delivered under this Ordinance and is entitled to the security and benefit of this Ordinance.
(b) The Bond Service Charges on the Bonds shall be payable in lawful money of the United States of America without deduction for the services of the Bond Registrar as paying agent. The principal of and premium, if any, on the Bonds shall be payable upon presentation and surrender of the Bonds at the office of the Bond Registrar. Each Bond shall bear interest from the later of the date thereof, or the most recent Interest Payment Date to which interest has been paid or duly provided for, unless the date of authentication of a Bond is after the Record Date for an Interest Payment Date, in which case interest on such Bond shall accrue from such Interest Payment Date. Interest on any Bond shall be paid on each Interest Payment Date by check or draft mailed to the Bondholder as of the close of business on Record Date for such Interest Payment Date, as reflected on the Bond Register at the address appearing therein.
(c) Principal of and interest on the Bonds shall be paid only from the following sources and in the following order:
(i) Moneys in the TIF Account, provided that interest on the Bonds shall be paid from, and to the extent of, moneys in the Capitalized Interest Subaccount before other moneys in the TIF Account are applied to the payment of such interest, and
(ii) While the Bonds are in the Weekly Mode, moneys obtained by drawing on the Letter of Credit.
If as of the close of business on the second Business Day immediately preceding any Interest Payment Date and while the Bonds are in the Weekly Mode, the balance to the credit of the TIF Account is less than the amount required to pay principal of and interest on the Bonds (including any mandatory sinking fund requirement) on that Interest Payment Date, then prior to 3:00 p.m. Columbus, Ohio time on the Business Day immediately preceding that Interest Payment Date, the Bond Registrar shall draw on the Letter of Credit in an amount equal to the difference between the amount required to pay principal of and interest on the Bonds on that Interest Payment Date and the amount available in the TIF Account to make such payment.
(d) While the Letter of Credit is in effect, or if any amount is owed to the Letter of Credit Issuer pursuant to the Letter of Credit Agreement, and the Letter of Credit Issuer is not in default with respect to the Letter of Credit, without the prior written consent of the Letter of Credit Issuer, moneys in the TIF Account shall be used only for payment of (i) costs of issuance of the Bonds, (ii) the principal of and interest on the Bonds, (iii) amounts payable to the Letter of Credit Issuer pursuant to the Letter of Credit Agreement, including, but not limited to, reimbursement of amounts drawn under the Letter of Credit, (iv) amounts payable to the Developer to reimburse the Developer for amounts paid by the Developer to the Letter of Credit Issuer pursuant to the Letter of Credit Agreement, but excluding amounts constituting drawing fees or commitment fees, which are provided for in the Project Acquisition Agreement, (v) amounts payable to the Remarketing Agent pursuant to the Remarketing Agent Agreement and to the Tender Agent pursuant to the Tender Agent Agreement, (vi) any other amounts payable to the Developer pursuant to the Project Acquisition Agreement, and (vii) any arbitrage rebate required to be paid under the Code. Investment earnings allocable to moneys credited to the Project Fund or the TIF Account shall be credited to the TIF Account.
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(e) Any interest on any Bond which is payable, but is not punctually paid or provided for, on any Interest Payment Date (herein called "Defaulted Interest") shall forthwith cease to be payable to the Bondholder on the relevant Record Date by virtue of having been such owner and such Defaulted Interest shall be paid to the Bondholder in whose name the Bond is registered at the close of business on a date (the "Special Record Date") to be fixed by the Bond Registrar, such Special Record Date to be not more than 15 nor less than 10 days prior to the date of proposed payment. The Bond Registrar shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first class postage prepaid, to each Bondholder, at its address as it appears in the Bond Register, not less than 10 days prior to such Special Record Date, and may, in its discretion, cause a similar notice to be published once in a newspaper in each place where Bonds are payable, but such publication shall not be a condition precedent to the establishment of such Special Record Date.
(f) Subject to the foregoing provisions of this Section 9, each Bond delivered by the Bond Registrar upon transfer of or in exchange for or in lieu of any other Bond shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Bond.
SECTION 10. Registration; Transfer
(a) So long as any of the Bonds remain outstanding, the Municipality will cause the Bond Register to be maintained and kept by the Bond Registrar at the office of the Bond Registrar. Subject to the provisions of Section 9 of this Ordinance, the person in whose name any Bonds shall be registered on the Bond Register shall be regarded as the absolute owner thereof for all purposes, and payment of or on account of the Bond Service Charges on any Bond shall be made only to or upon the order of that person. Neither the Municipality nor the Bond Registrar shall be affected by any notice to the contrary, but the registration may be changed as herein provided. All payments shall be valid and effectual to satisfy and discharge the liability upon the Bonds, including the interest thereon, to the extent of the amount or amounts so paid.
(b) Any Bond, upon presentation and surrender at the office of the Bond Registrar, together with a request for exchange signed by the registered owner or by a person authorized by the owner to do so by a power of attorney in a form satisfactory to the Bond Registrar, may be exchanged for Bonds of any authorized denomination or denominations equal in the aggregate to the unmatured principal amount of the Bonds surrendered, and bearing interest at the same rate and maturing on the same date.
(c) A Bond may be transferred only on the Bond Register upon presentation and surrender thereof at the principal office of the Bond Registrar, together with an assignment executed by the registered owner or by a person authorized by the owner to do so by a power of attorney in a form satisfactory to the Bond Registrar. Upon that transfer, the Bond Registrar shall complete, authenticate and deliver a new Bond or Bonds of any authorized denomination or denominations equal in the aggregate to the unmatured principal amount of the Bonds surrendered, and bearing interest at the same rate and maturing on the same date.
(d) In all cases in which Bonds are exchanged or transferred hereunder, the Municipality shall cause to be executed and the Bond Registrar shall authenticate and deliver Bonds in accordance with the provisions of this Ordinance. The exchange or transfer shall be without charge to the owner; except that the Municipality and Bond Registrar may make a charge sufficient to reimburse them for any tax or other governmental charge required to be paid with respect to the exchange or transfer. The Municipality or the Bond Registrar may require that those charges, if any, be paid before it begins the procedure for the exchange or transfer of the Bonds. All Bonds issued upon any transfer or exchange shall be the valid obligations of the Municipality, evidencing the same debt, and entitled to the same benefits under this Ordinance, as the Bonds surrendered upon that transfer or exchange.
SECTION 11. Book Entry System
(a) The Bonds shall be initially issued to a Depository for use in a book entry system, and the provisions of this Section shall apply notwithstanding any other provision of this Ordinance: (i) there shall be a single Bond of each maturity, (ii) those Bonds shall be registered in the name of the Depository or its nominee, as registered owner, and immobilized in the custody of the Depository; (iii) the beneficial owners in book entry form shall have no right to receive Bonds in the form of physical securities or certificates; (iv) ownership of beneficial interests in any Bonds in book entry form shall be shown by book entry on the system maintained and operated by the Depository, and transfers of the ownership of beneficial interests shall be made only by the Depository and by book entry; and (v) the Bonds as such shall not be transferable or exchangeable, except for transfer to another Depository or to another nominee of a Depository, without further action by the Municipality.
(b) If any Depository determines not to continue to act as a depository for the Bonds for use in a book entry system, the Municipality and the Bond Registrar may attempt to have established a securities depository/book entry relationship with another qualified Depository under this Ordinance. If the Municipality and the Bond Registrar do not or are unable to do so, the Municipality and the Bond Registrar, after the Bond Registrar has made provision for notification of the beneficial owners by the then Depository, shall permit withdrawal of the Bonds from the Depository, and authenticate and deliver Bond certificates in fully registered form to the assigns of the Depository or its nominee, all at the cost and expense (including costs of printing definitive Bonds), if the event is not the result of action or inaction by the Municipality or the Bond Registrar, of those persons requesting such issuance.
(c) Notwithstanding anything in this Ordinance to the contrary, so long as the Bonds are held under a book entry system, Bonds will not be delivered in connection with the provisions of this Ordinance relating to the tender or deemed tender of Bonds; rather, transfer of beneficial ownership of Bonds tendered or deemed tendered pursuant to this Ordinance shall be effected pursuant to the rules and procedures established by the Depository.
SECTION 12. Sale of Bonds; Certificate of Award; Official Statement
(a) The sale and award of the Bonds shall be evidenced by the Certificate of Award signed by the Director of Finance or the Fiscal Officer. The Certificate of Award shall identify the Original Purchaser, the Remarketing Agent, and the Tender Agent, and shall state, among other things, the Purchase Price, the Original Issuance Date, the Initial Interest Rate and the Wednesday that is the last day of the first Interest Period, the first Interest Payment Date, the Mandatory Redemption Dates, if any, and the Maturity Date for the Bonds.
(b) The Bonds shall be awarded and sold to the Original Purchaser, in accordance with the Bond Purchase Contract, at the Purchase Price. The Bond Purchase Contract shall be in such form and shall contain such terms, covenants and conditions not inconsistent with this Ordinance and permitted by applicable law as shall be approved by the Director of Finance. The approval of the Bond Purchase Contract shall be conclusively evidenced by the execution of the Bond Purchase Contract by the Director of Finance. It is hereby determined that the Purchase Price, the provisions for the determination of the interest rates and the Conversion Date for the Bonds, the manner of sale and the terms of the Bonds, all as provided in this Ordinance and in the Bond Purchase Contract, will be in the best interests of the Municipality and consistent with all legal requirements.
(c) The Director of Finance, the Fiscal Officer and the Clerk are directed to make the necessary arrangements on behalf of the Municipality to establish the date, location, procedure and conditions for the delivery of the Bonds to the Original Purchaser. hose officers are further directed to take all steps necessary to effect due execution, authentication and delivery of the Bonds under the terms of this Ordinance and the Bond Purchase Contract. Moneys in the TIF Account and proceeds of the sale of the Bonds may be used to pay the cost of issuance of the Bonds. All moneys necessary t carry out the purpose of this ordinance, including costs of issuance of the Bonds and all Bond Service Charges for the Bonds, are hereby deemed appropriated.
(d) The distribution of an Official Statement of the Municipality relating to the original issuance of the Bonds is hereby authorized, and the Director of Finance is hereby authorized and directed to prepare and execute, on behalf of the Municipality and in his official capacity, the Official Statement and any supplements thereto as so executed in connection with the original issuance of the Bonds, and he is authorized and directed to advise the Original Purchaser in writing regarding limitations on the use of the Official Statement and any supplements thereto for purposes of marketing or reoffering the Bonds as he deems necessary or appropriate to protect the interests of the Municipality.
SECTION 13. Establishment of Capitalized Interest Subaccount; Application of Proceeds
There is hereby established and ordered to be maintained in the City Treasury a subaccount of the TIF Account, to be designated the "Capitalized Interest Subaccount". The proceeds from the sale of the Bonds shall be deposited in the City Treasury. The Certificate of Award shall designate the portion of the proceeds of the sale of the Bonds that shall be credited to the Project Fund and the portion that shall be credited to the Capitalized Interest Subaccount. Moneys in the Project Fund shall be applied to the payment or reimbursement of costs of the Public Improvements in accordance with the provisions of the Project Acquisition Agreement. If any balance remains in the Project Fund after all amounts payable pursuant to the provisions of the Project Acquisition Agreement have been paid, that balance shall be transferred to the credit of the TIF Account.
SECTION 14. Letter of Credit; Alternate Letter of Credit; Release of Letter of Credit
(a) The Developer shall cause the Letter of Credit to be delivered to the Tender Agent, with a copy to the Bond Registrar, at or prior to the initial authentication and delivery of the Bonds to the Original Purchaser.
(b) The Developer may arrange for the extension of the Expiration Date for any integral multiples of one year periods, provided that written evidence of any such extension is furnished by the Letter of Credit Issuer to the Bond Registrar, the Tender Agent and the Remarketing Agent at least 45 days prior to the Expiration Date then in effect.
(c) At any time the Developer may deliver, and the Bond Registrar and the Tender Agent shall accept, an Alternate Letter of Credit for an existing Letter of Credit, subject to the limitations set forth in this Section 14. Any Alternate Letter of Credit must be effective on the Expiration Date of the Letter of Credit then in effect, and the stated Expiration Date of the Alternate Letter of Credit must be no earlier than the first anniversary of its effective date.
(d) The Developer shall notify the Municipality, the Bond Registrar, the Tender Agent and the Remarketing Agent of its intention to deliver an Alternate Letter of Credit at least 45 days prior to the effective date of the Alternate Letter of Credit. The notice shall be accompanied by (i) a written opinion of nationally recognized bond counsel selected by the Municipality stating that delivery of the Alternate Letter of Credit will not adversely affect the exemption from federal income taxation of the interest on the outstanding Bonds, and (ii) a written opinion of counsel to the issuer of the Alternate Letter of Credit to the effect that, upon its delivery to the Tender Agent, the Alternate Letter of Credit will be a valid and binding obligation of the issuer thereof, enforceable in accordance with its terms, subject to customary exceptions relating to bankruptcy and insolvency. The Developer shall cause any Alternate Letter of Credit to be delivered to the Bond Registrar and the Tender Agent not less than 20 days prior to the effective date of that Alternate Letter of Credit.
(e) The Letter of Credit shall be delivered to the Letter of Credit Issuer for cancellation after the Bonds have been converted to the Fixed Rate Mode.
SECTION 15. Remarketing Agent
(a) The Remarketing Agent shall be identified in the Certificate of Award. The Director of Finance and the Fiscal Officer, and either of them acting alone, are authorized and directed to execute and deliver, as may be appropriate, in the name and on behalf of the Municipality, the Remarketing Agent Agreement. The Remarketing Agent Agreement shall be in such form and contain such terms, covenants and conditions not inconsistent with this Ordinance, including but not limited to, the agreements of the Remarketing Agent:
(i) 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 Municipality and the Tender Agent at all reasonable times;
(ii) to deliver to the Municipality and the Tender Agent, within one Business Day of the receipt thereof by the Remarketing Agent, advice of each notice delivered to it in accordance with subsection (a) of Section 7 of this Ordinance;
(iii) not later than 4:00 p.m., Columbus, Ohio time, on the Business Day immediately preceding any day on which Bonds are tendered or deemed tendered pursuant to subsection (a) or (b) of Section 7 of this Ordinance, to give notice, by telecopy, telegraph, telex, facsimile transmission or other similar means of communication, to the Municipality, the Developer, the Letter of Credit Issuer, and the Tender Agent specifying the principal amount of such Bonds, if any, not remarketed by it as of such day pursuant to subsection (c) of Section 7 of this Ordinance;
(iv) not later than the close of business on each Interest Determination Date, to give notice, by telecopy, telegraph, telex, facsimile transmission or other similar means of communication, to the Municipality, the Developer, and the Letter of Credit Issuer, if any, specifying the interest rate for the Bonds for the next Interest Period, determined pursuant to and in accordance with Section 6 of this Ordinance; and
(v) to deliver any Bonds delivered to it pursuant to this Ordinance to the persons to whom the same are to be delivered in accordance with subsection (i) of Section 7 of this Ordinance.
(b) The Remarketing Agent may at any time resign and be discharged of the duties and obligations created by this Ordinance by giving at least ninety (90) days' notice to the Municipality, the Developer, the Tender Agent and the Letter of Credit Issuer. The Remarketing Agent may be removed at any time upon ten (10) days written notice, at the direction of the Municipality, by an instrument signed by the Executive Officer, the Director of Finance or the Fiscal Officer, filed with the Remarketing Agent, the Tender Agent, the Developer, and the Letter of Credit Issuer. Subject to the provisions of the Letter of Credit Agreement, if any, a successor Remarketing Agent shall be selected by the Municipality and shall have a capitalization of at least $5,000,000, shall be a member of the National Association of Securities Dealers, Inc. and be authorized by law to perform all the duties imposed upon it by this Ordinance.
(c) In the event that the Remarketing Agent shall resign or be removed, or be dissolved, or if the property or affairs of the Remarketing Agent shall be taken under the control of any state or federal court or administrative body because of bankruptcy or insolvency, or for any other reason, and the Municipality shall not have appointed a successor Remarketing Agent, the Bond Registrar shall, to the extent permitted by law, be deemed to be the Remarketing Agent for all purposes of this Ordinance until the appointment by the Municipality of a successor Remarketing Agent; provided, however, that the Bond Registrar acting in the capacity of Remarketing Agent shall not be obligated to (i) offer for sale any Bonds delivered to the Tender Agent pursuant to Section 7 of this Ordinance or (ii) determine an interest rate for the Bonds pursuant to Section 6 or Section 8 of this Ordinance.
SECTION 16. Tender Agent
(a) The Tender Agent shall be identified in the Certificate of Award. The Director of Finance and the Fiscal Officer, and either of them acting alone, are authorized and directed to execute and deliver, as may be appropriate, in the name and on behalf of the Municipality, the Tender Agent Agreement. The Tender Agent Agreement shall be in such form and contain such terms, covenants and conditions not inconsistent with this Ordinance, including but not limited to, the agreements of the Tender Agent:
(i) to hold all Bonds delivered to it pursuant to this Ordinance in trust for the benefit of the respective Bondholders who shall have so delivered such Bonds until moneys representing the purchase price of such Bonds shall have been delivered to or for the account of or to the order of such Bondholders;
(ii) to hold all moneys delivered to it for the purchase of Bonds in trust for the benefit of the person who shall have so delivered such moneys until the Bonds purchased with such moneys shall have been delivered to or for the account of such person;
(iii) 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 Municipality, the Bond Registrar, the Developer, and the Remarketing Agent; and
(iv) not later than the close of business on any day on which Bonds are deemed tendered pursuant to subsections (a) or (b) of Section 7 of this Ordinance, to notify the Municipality of any failure of delivery of such Bonds.
(b) The Tender Agent may at any time resign and be discharged of the duties and obligations created by this Ordinance by giving at least sixty (60) days' notice to the Municipality, the Bond Registrar, the Letter of Credit Issuer, if any, the Developer, and the Remarketing Agent. The Tender Agent may be removed at any time upon ten (10) days' written notice, at the direction of the Municipality, by an instrument signed by the Executive Officer, the Director of Finance or the Fiscal Officer, filed with the Tender Agent, the Bond Registrar, the Letter of Credit Issuer, if any, the Developer, and the Remarketing Agent. Subject to the provisions of the Letter of Credit Agreement, if any, a successor Tender Agent shall be appointed by the Municipality and shall be a bank or trust company having an aggregate of capital, paid in surplus and retained earnings of not less than $15,000,000. If the Tender Agent resigns or is removed, the Bond Registrar shall assume the duties and responsibilities of Tender Agent for all purposes of this ordinance and the Bonds until a successor Tender Agent is appointed. If the Bonds have been withdrawn from a book entry system and delivered in certificated form, any successor Tender Agent shall have its Principal Office in New York, New York.
SECTION 17. Federal Income Tax Compliance
(a) The Municipality hereby covenants that it will comply with the requirements of all existing and future laws which must be satisfied in order that interest on the Bonds is and will continue to be excluded from gross income for federal income tax purposes, including without limitation restrictions on the use of the property financed with the proceeds of the Bonds so that the Bonds will not constitute "private activity bonds" within the meaning of Section 141 of the Code. The Municipality further covenants that it 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 the debt is incurred, so that they will not constitute arbitrage bonds under the Code.
(b) The Fiscal Officer and the Director of Finance, and each of them acting alone, is hereby authorized and directed (a) to make or effect any election, selection, designation, choice, consent, approval or waiver on behalf of the Municipality with respect to the Bonds as permitted or required to be made or given under the federal income tax laws, for the purpose of assuring, enhancing or protecting favorable tax treatment or the status of the Bonds or interest thereon or assisting compliance with requirements for that purpose, reducing the burden or expense of such compliance, reducing any rebate amount or any payment of penalties, or making any payments of special amounts in lieu of making computations to determine, or paying, any excess earnings as rebate, or obviating those amounts or payments, as determined by the Fiscal Officer or the Director of Finance, which action shall be in writing and signed by the Fiscal Officer or the Director of Finance; (b) to take any and all actions, make or obtain calculations, and make or give reports, covenants and certifications of and on behalf of the Municipality, as may be appropriate to assure the exclusion of interest from gross income and the intended tax status of the Bonds; and (c) to give an appropriate certificate on behalf of the Municipality for inclusion in the transcript of proceedings, setting forth the facts, estimates and circumstances, and reasonable expectations of the Municipality pertaining to the representations, warranties and covenants of the Municipality regarding compliance by the Municipality with Sections 141 through 150 of the Code.
(c) The Fiscal Officer shall keep and maintain adequate records pertaining to investment of all proceeds of the Bonds sufficient to permit, to the maximum extent possible and presently foreseeable, the Municipality to comply with any federal law or regulation now or hereafter having applicability to the Bonds which limits the amount of Bond proceeds which may be invested at an unrestricted yield or requires the Municipality to rebate arbitrage profits to the United States Department of the Treasury. The Fiscal Officer is hereby authorized and directed to file such reports with, and rebate arbitrage profits to, the United States Department of the Treasury, to the extent that any federal law or regulation having applicability to the Bonds requires any such reports or rebates.
SECTION 18. Valid and Binding Obligations
It is hereby found and determined that all acts, conditions and things necessary to be done precedent to and in the issuing of the Bonds in order to make them legal, valid and binding special obligations of the Municipality have happened, been done and been performed in regular and due form as required by law; and that no limitation of indebtedness or taxation, either statutory or constitutional, has been exceeded in issuing the Bonds.
SECTION 19. Open Meeting Compliance
It is hereby found and determined that all formal actions of this Council concerning and relating to the adoption of this Ordinance were adopted in an open meeting of this Council, and that all deliberations of this Council and of 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 20. Effective Date
In accordance with Section 55(b) of the Charter of the City of Columbus, Ohio, this Ordinance shall take effect and be in force from and immediately after its passage and approval by the Mayor, or ten days after passage if the Mayor neither approves nor vetoes the same.