EXHIBIT 10.8
THIRTY-EIGHTH SUPPLEMENTAL TRUST AGREEMENT
Pertaining to
STATE OF OHIO
$8,100,000 STATE ECONOMIC DEVELOPMENT REVENUE BONDS
(OHIO ENTERPRISE BOND FUND)
SERIES 1993-5
(FOREMOST MGMT., INC. PROJECT)
(TAXABLE BONDS)
This Thirty-Eighth Supplemental Trust Agreement, dated as of September
1, 1993 (the "Supplement Number 38") by and between the STATE OF OHIO (the
"State"), and THE PROVIDENT BANK, a bank organized and existing under and by
virtue of the laws of the State and authorized to exercise corporate trust
powers in the State, with its principal place of business located in Cincinnati,
Ohio (the "Trustee"), as trustee under the Trust Agreement, dated as of April 1,
1988 (the "Trust Agreement"), between the State and the Trustee.
WITNESSETH:
WHEREAS, the State, pursuant to direction of the Director of
Development of the State under Section 166.09 of the Revised Code and the
General Bond Order of the Treasurer of the State (the "Treasurer") dated April
11, 1988, entered into the Trust Agreement providing for the issuance from time
to time of State Economic Development Revenue Bonds (Ohio Enterprise Bond Fund)
(the "Bonds"), with each issue of Bonds to be authorized by a Series Bond Order
of the Treasurer which Series Bond Order shall authorize a Supplemental Trust
Agreement, supplementing the Trust Agreement, pertaining to that issue of Bonds;
and
WHEREAS, pursuant to the certification of the Director of Development
of the State under Section 166.08(B) of the Revised Code, the Treasurer issued
Series Bond Order No. R5-93 dated September 1, 1993 providing for the issuance
and sale of $8,100,000 State of Ohio State Economic Development Revenue Bonds
(Ohio Enterprise Bond Fund), Series 1993-5 (Foremost Mgmt., Inc. Project)
(Taxable Bonds) (the "Series 1993-5 Bonds") and this Supplement Number 38, which
Series Bond Order No. R5-93 is incorporated herein, constitutes an integral part
of this Supplement Number 38 and provides in its entirety as follows:
STATE OF OHIO
STATE ECONOMIC DEVELOPMENT REVENUE BONDS
(OHIO ENTERPRISE BOND FUND)
SERIES BOND ORDER NO. R5-93
Providing for the authorization, issuance and sale of
$8,100,000 State of Ohio State Economic Development Revenue
Bonds (Ohio Enterprise Bond Fund), Series 1993-5 (Foremost
Mgmt., Inc. Project) (Taxable Bonds), pursuant to the Trust
Agreement dated as of April 1, 1988.
WHEREAS, the Treasurer of State of the State of Ohio (the "Treasurer"),
by the General Bond Order dated April 11, 1988 and included in a Trust
Agreement, dated as of April 1, 1988 (the "Trust Agreement"), between the State
of Ohio (the "State") and The Provident Bank, as trustee (the "Trustee"), has
provided for the issuance from time to time of State Economic Development
Revenue Bonds (Ohio Enterprise Bond Fund) of the State, with each issue of Bonds
to be authorized by a Series Bond Order of the Treasurer pursuant to the General
Bond Order;
WHEREAS, the General Bond Order was issued and the Trust Agreement was
entered into by the Treasurer pursuant to Chapter 166 of the Revised Code (the
"Act") enacted under authority of the Constitution of Ohio, particularly Section
13 of Article VIII thereof, which authorizes the Treasurer to issue obligations
of the State as from time to time authorized by the General Assembly or
otherwise required or permitted by the Act to provide moneys for the Facilities
Establishment Fund, including authorized transfers from that Fund, and for
funding reserves, as provided in the Act and this Order; and
WHEREAS, the Director of Development of the State has certified to the
Treasurer, pursuant to Section 166.08 (B) of the Revised Code, the need for the
sum of $8,100,000 to be allocated as provided in Section 7 of this Order; and
WHEREAS, pursuant to the foregoing and for the purposes stated in
Section 4 of this Order, the Treasurer has determined to issue $8,100,000
principal amount of Bonds and to provide the security and source of payment
therefor by this Order;
NOW, THEREFORE, THE TREASURER OF STATE OF THE STATE OF OHIO HEREBY
ORDERS as follows:
Section 1. Definitions and Interpretations. Where used in this Order,
and in addition to words and terms defined elsewhere in this Order and in the
General Bond Order the following terms shall have the following meanings:
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"Called Principal" means, with respect to any Series 1993-5 Bond, the
principal of such Series 1993-5 Bond that is to be redeemed at the option of the
State.
"Collateral Proceeds Account" means the Series 1993-5 Collateral
Proceeds Account, created pursuant to the General Bond Order and Section 7 of
this Order, in the Economic Development Bond Service Fund.
"Company" means Foremost Mgmt., Inc., a corporation organized under the
laws of the State of Ohio.
"Discounted Value" means, with respect to the Called Principal of any
Series 1993-5 Bond, the amount obtained by discounting all Remaining Scheduled
Payments with respect to the Called Principal from their respective scheduled
due dates to the Settlement Date with respect to such Called Principal, in
accordance with accepted financial practice and, at a discount factor (applied
on a quarterly basis) equal to the Reinvestment Yield with respect to such
Called Principal.
"Financing Agreement" means the Lease, dated as of September 1993
between the Director of Development of the State and the Company, as from time
to time amended.
"Issuance Expense Account" means the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ Expense
Account created in Section 7 of this Order.
"Original Purchaser" means, as to the Series ▇▇▇▇-▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇ Life Insurance Co., Manhattan Life Insurance Co. and Ohio National Life
Insurance Co.
"Placement Agent" means, as to the Series 1993-5 Bonds, The Ohio
Company.
"Private Placement Agreement" means the Private Placement Agreement
among the State, the Company and the Placement Agent providing for the private
placement of the Series 1993-5 Bonds by the Placement Agent.
"Primary Reserve Account" means the Series 1993-5 Primary Reserve
Account, created pursuant to the General Bond Order and Section 7 of this Order,
in the Economic Development Bond Service Fund.
"Project" means the Project Facilities and the Project Site, which
together constitute an Eligible Project.
"Project Facilities" means the improvements to the Project Site
described on Exhibit B attached to the Financing Agreement.
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"Project Site" means that real property described on Exhibit A attached
to the Financing Agreement.
"Project Fund" means the Series 1993-5 Project Fund, established
pursuant to Section 8 of this Order.
"Reinvestment Yield" shall mean, with respect to the Called Principal
of any Series 1993- 5 Bond, the yield to maturity implied by (i) the yields
reported, as of 10:00 a.m. (New York City time) on the Business Day next
preceding the Settlement Date with respect to such Called Principal, on the
display designated as "Page 678" on the Telerate Service (or such other display
as may replace Page 678 on the Telerate Service) for actively traded U.S.
Treasury securities having a maturity equal to the Remaining Average Life of
such Called Principal as of such Settlement Date, or if such yields shall not be
reported as of such time or the yields reported as of such time shall not be
ascertainable, (ii) the Treasury Constant Maturity Series yields reported, for
the latest date for which such yields shall have been so reported as of the
Business Day next preceding the Settlement Date with respect to such Called
Principal, in Federal Reserve Statistical Release H.15 (519) (or any comparable
successor publication) for actively traded U.S. Treasury securities having a
constant maturity equal to the Remaining Average Life of such Called Principal
as of such Settlement Date. Such implied yield shall be determined, if
necessary, by (a) converting U.S. Treasury ▇▇▇▇ quotations to bond equivalent
yields in accordance with accepted financial practice and (b) interpolating
linearly between reported yields.
"Remaining Average Life" shall mean, with respect to the Called
Principal of any Series 1993-5 Bond, the number of years (calculated to the
nearest one-twelfth year) obtained by dividing (i) such Called Principal into
(ii) the sum of the products obtained by multiplying (a) each Remaining
Scheduled Payment of such Called Principal (but not of interest thereon) by (b)
the number of years (calculated to the nearest one-twelfth year) which will
elapse between the Settlement Date with respect to such Called Principal and the
scheduled due date of such Remaining Scheduled Payment.
"Remaining Scheduled Payments" shall mean, with respect to the Called
Principal of any Series 1993-5 Bond, all payments of such principal and interest
thereon that would be due on or after the Settlement Date with respect to such
Called Principal if no payment of such Called Principal were made prior to its
scheduled due date.
"Series 1993-5 Bonds" means the Bonds authorized by this Order.
"Settlement Date" means with respect to the Called Principal of any
Series 1993-5 Bond, the date on which such Called Principal is to be redeemed at
the option of the State.
"Supplement Number 38" means the Thirty-Eighth Supplemental Trust
Agreement, dated as of September 1, 1993, between the Treasurer and the Trustee,
of which this Order is a part.
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"Yield-Maintenance Premium" shall mean, with respect to any Series
1993-5 Bond, a premium equal to the excess, if any, of the Discounted Value of
the Called Principal of such Series 1993-5 Bond over the sum of (i) such Called
Principal plus (ii) interest accrued thereon as of (including interest due on)
the Settlement Date with respect to such Called Principal. If the State and the
owner of any Series 1993-5 Bond shall, prior to the Settlement Date, designate
in writing a lesser premium from that calculated as set forth in the preceding
sentence, the premium so designated shall be payable on the Settlement Date in
lieu of the Yield-Maintenance Premium as described in the preceding sentence
with respect to such Series 1993-5 Bond.
Unless the context or use clearly indicates another or different
meaning or intent, all words and terms defined in and all interpretations
provided in Section 1 of the General Bond Order shall have the same meanings and
be subject to the same interpretations as therein provided, except that this
Order is referred to herein as "this Order" and may be known as "Series Bond
Order No. R5-93", and the terms "hereof", "herein", "hereby it, "hereto " and
"hereunder", and similar terms, mean this Order.
Section 2. Authority. This Order is issued pursuant to the General Bond
Order, the Trust Agreement and the Act.
Section 3. Findings. The Treasurer finds that the conditions stated in
numbered subparagraphs (1), (2), and (4) of Subsection 3(a) of the General Bond
Order are or will be satisfied at the time of authentication of the Series
1993-5 Bonds. The Treasurer or an Authorized Officer shall confirm these
findings by a certificate in form satisfactory to and to be filed with the
Trustee prior to the authentication of the Series 1993-5 Bonds, and the
Treasurer or that Authorized Officer may provide such other evidence with
respect thereto as the Trustee may reasonably request.
Section 4. Authorization, Designation and Purposes of Series 1993-5
Bonds. It is necessary to and the State shall issue, sell and deliver, as
provided in this Order, $8,100,000 principal amount of bonds of the State, which
shall be designated "State of Ohio State Economic Development Revenue Bonds
(Ohio Enterprise Bond Fund), Series 1993-5 (Foremost Mgmt., Inc. Project)
(Taxable Bonds)", for the purpose of paying a portion of the costs or acquiring
and installing the Project Equipment constituting the Project, make a deposit to
the Primary Reserve Account and paying certain costs of issuance of the Series
1993-5 Bonds.
Section 5. Terms and Provisions Applicable to Series 1993-5 Bonds. The
Series 1993-5 Bonds shall be initially issued in fully registered form and
substantially in the form set forth in Supplement Number 33. The Series 1993-5
Bonds shall be numbered in such manner so as to distinguish each Series 1993-5
Bond from any other Series 1993-5 Bond and shall be in the denomination of
$100,000 or any integral multiple of $5,000 in excess thereof requested by the
bondholder.
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Each Series 1993-5 Bond shall be dated as of the interest payment date
next preceding the date of its authentication, unless authenticated on an
interest payment date in which case it shall be dated as of the date of
authentication; provided that if at the time of authentication of any Series
1993-5 Bond interest is in default thereon, such Series 1993-5 Bond shall be
dated as of the date to which interest has been paid; and provided, further,
that Series 1993-5 Bonds authenticated prior to September 1, 1993 shall be dated
the first date that the Series 1993-5 Bonds are delivered to the original
purchasers thereof against payment therefor, Interest shall be paid based upon a
year of twelve 30 day months.
The Series 1993-5 Bonds shall bear interest from their respective
dates, payable quarterly on March 1, June 1, September 1 and December 1 of each
year, beginning September 1, 1993, at the rate of 7.54% per annum and shall
mature on June 1, 2013.
The Series 1993-5 Bonds are subject to redemption at the option of the
State, but if the Company is not in default under the Financing Agreement, only
at the direction of the Company, prior to maturity on any Interest Payment Date
after September 1, 1993, in whole at a redemption price equal to the sum of the
principal amount of Series 1993-5 Bonds redeemed plus the Yield-Maintenance
Premium plus accrued interest to the redemption date.
The Series 1993-5 Bonds are subject to mandatory redemption by the
State at a redemption price equal to 100% of the principal amount redeemed plus
accrued interest to the date of redemption on the dates and in the principal
amounts set forth below:
Date Amount
---- ------
September 1, 1994 $45,000.00
December 1, 1994 $45,000.00
March 1, 1995 $50,000.00
June 1, 1995 $50,000.00
September 1, 1995 $50,000.00
December 1, 1995 $50,000.00
March 1, 1996 $50,000.00
June 1, 1996 $55,000.00
September 1, 1996 $55,000.00
December 1, 1996 $55,000.00
March 1, 1997 $55,000.00
June 1, 1997 $60,000.00
September 1, 1997 $60,000.00
December 1, 1997 $60,000.00
March 1, 1998 $60,000.00
June 1, 1998 $60,000.00
September 1, 1998 $65,000.00
December 1, 1998 $65,000.00
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March 1, 1999 $65,000.00
June 1, 1999 $65,000.00
September 1, 1999 $70,000.00
December 1, 1999 $70,000.00
March 1, 2000 $70,000.00
June 1, 2000 $75,000.00
September 1, 2000 $75,000.00
December 1, 2000 $75,000.00
March 1, 2001 $80,000.00
June 1, 2001 $80,000.00
September 1, 2001 $80,000.00
December 1, 2001 $80,000.00
March 1, 2002 $85,000.00
June 1, 2002 $85,000.00
September 1, 2002 $85,000.00
December 1, 2002 $90,000.00
March 1, 2003 $90,000.00
June 1, 2003 $95,000.00
September 1, 2003 $95,000.00
December 1, 2003 $95,000.00
March 1, 2004 $100,000.00
June 1, 2004 $100,000.00
September 1, 2004 $100,000.00
December 1, 2004 $105,000.00
March 1, 2005 $105,000.00
June 1, 2005 $110,000.00
September 1, 2005 $110,000.00
December 1, 2005 $115,000.00
March 1, 2006 $115,000.00
June 1, 2006 $115,000.00
September 1, 2006 $120,000.00
December 1, 2006 $120,000.00
March 1, 2007 $125,000.00
June 1, 2007 $125,000.00
September 1, 2007 $130,000.00
December 1, 2007 $130,000.00
March 1, 2008 $135,000.00
June 1, 2008 $135,000.00
September 1, 2008 $140,000.00
December 1, 2008 $145,000.00
March 1, 2009 $145,000.00
June 1, 2009 $150,000.00
September 1, 2009 $150,000.00
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December 1, 2009 $155,000.00
March 1, 2010 $160,000.00
June 1, 2010 $160,000.00
September 1, 2010 $165,000.00
December 1, 2010 $170,000.00
March 1, 2011 $170,000.00
June 1, 2011 $175,000.00
September 1, 2011 $180,000.00
December 1, 2011 $180,000.00
March 1, 2012 $185,000.00
June 1, 2012 $190,000.00
September 1, 2012 $190,000.00
December 1, 2012 $195,000.00
March 1, 2013 $200,000.00
Unless otherwise retired prior to maturity, the remaining principal amount of
Series 1993-5 Bonds ($205,000.00), will be payable at their maturity on June 1,
2013.
The State shall have the option to deliver to the Trustee for
cancellation Series 1993-5 Bonds in any aggregate principal amount and receive a
credit against the then current applicable mandatory redemption requirement as
set forth above for the Series 1993-5 Bonds. A credit shall also be received for
any Series 1993-5 Bonds which prior thereto have been redeemed (other than
through the operation of the mandatory redemption requirements) or purchased for
cancellation and canceled pursuant to Section 2.06 of the Trust Agreement and
not theretofore applied as a credit against any mandatory redemption requirement
for the Series 1993-5 Bonds. Each Series 1993-5 Bond so delivered, or previously
redeemed or canceled, shall be credited by the Trustee at 100% of its principal
amount against the applicable mandatory redemption requirement on that mandatory
redemption date, the principal amount of the Series 1993-5 Bonds to be redeemed
by operation of the mandatory redemption requirements on that date shall be
accordingly reduced, and any excess of that amount may be credited against
future applicable mandatory redemption requirements. The Treasurer will on or
before the 45th day preceding each mandatory redemption date furnish the Trustee
with a certificate, signed by the Treasurer or an Authorized Officer, stating
the extent of the credit to be applied with respect to the applicable mandatory
redemption requirement of that payment date. If that certificate is not timely
furnished to the Trustee, the applicable mandatory redemption requirement shall
not be reduced.
If fewer than all of the outstanding Series 1993-5 Bonds are called for
optional or mandatory redemption at one time, the selection of the Series 1993-5
Bonds (including portions thereof) to be called for redemption shall be made in
the manner provided in Section 3.03 of the Trust Agreement, provided that any
such redemption shall be made pro rata among the holders of the outstanding
Series 1993-5 Bonds, based on the principal amount of outstanding Series 1993-5
Bonds held by each holder; provided, that the principal amount to be redeemed
from each such holder shall be rounded, in a manner that the Trustee considers
fair and appropriate, to the
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nearest whole multiple of $5,000. Notice of call for redemption of Series 1993-5
Bonds shall be given in the manner provided in Section 5(d) of the General Bond
Order.
Principal of and redemption premium on the Series 1993-5 Bonds when due
shall be payable to the registered owners, as provided in Section 5(e) of the
General Bond Order, upon presentation and surrender thereof, at the office of
the Trustee. Interest on the Series 1993-5 Bonds when due shall be payable,
except as otherwise provided in Section 5(e) of the General Bond Order, to the
registered owners by check or draft mailed by the Trustee as provided in Section
5(e) of the General Bond Order.
The Trustee may enter into an agreement with the registered owner of a
Series 1993-5 Bond providing for making all payments to that owner of principal
and interest on that Series 1993-5 Bond or any portion thereof (other than any
payment of the entire unpaid principal amount thereof) at a place and in a
manner (including wire transfer of federal funds) other than as provided above
in this Section 5, without prior presentation or surrender of the Series 19935
Bond, upon any conditions which shall be satisfactory to the Trustee and the
Treasurer. That payment in any event shall be made to the person who is the
registered owner of that Series 1993-5 Bond on the date that principal is due,
or, with respect to the payment of interest, as of the applicable date agreed
upon as the case may be. The Trustee will furnish a copy of each of those
agreements, certified to be correct by the Trustee, to other Paying Agents for
the Series 1993-5 Bonds and to the Treasurer. Any payment of principal or
interest pursuant to such an agreement shall constitute payment thereof pursuant
to, and for all purposes of, this Order.
The Series 1993-5 Bonds shall be executed and authenticated by the
persons and in the manner provided in the Trust Agreement.
The Series 1993-5 Bonds shall express on their face that they have not
been registered under the Securities Act of 1933, as amended, or the securities
laws of any state, and that the Series 1993-5 Bonds may not be sold,
transferred, pledged or hypothecated unless and until the Treasurer has received
an opinion of legal counsel satisfactory to the Treasurer that such sale,
transfer, pledge or hypothecation is in compliance with all applicable federal
and state securities laws. Any such opinions shall be furnished to the
Treasurer, with a copy to the Trustee, at the expense of the transferor
Bondholder.
Section 6. Sale of Series 1993-5 Bonds. The Series 1993-5 Bonds shall
be sold pursuant to the terms of the Private Placement Agreement, which is
hereby approved in all respects. The Private Placement Agreement shall be
substantially in the form now on file with the Treasurer, together with such
changes and insertions therein as may be approved by the Treasurer in executing
the Private Placement Agreement with that execution being conclusive evidence of
that approval. The State hereby ratifies the use of the Preliminary Private
Placement Memorandum and consents to the use of the Private Placement
Memorandum, each as identified in the Private Placement Agreement, in connection
with the initial sale of the Series ▇▇▇▇-▇
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▇▇▇▇▇. The forms of the Preliminary Private Placement Memorandum and the Private
Placement Memorandum are hereby approved.
Section 7. Allocation of Proceeds of Series 1993-5 Bonds; Creation of
Accounts. The proceeds from the sale of the Series 1993-5 Bonds, including any
premium and accrued interest, shall be received and receipted by the Treasurer,
and shall be allocated, deposited and credited as follows:
(i) To the Debt Service Account, accrued interest and any
premium received on the sale of the Series 1993-5 Bonds;
(ii) To the Issuance Expense Account, the sum of $195,000;
(iii) To the Primary Reserve Account, the sum of $810,000 (the
"Original Deposit"); and
(iv) To the Program Transfer Account, the balance of the
proceeds.
There is hereby created as a separate deposit account in the custody of
the Trustee the Series 1993-5 Issuance Expense Account. Moneys in the Issuance
Expense Account shall be disbursed by the Trustee, upon the written direction of
the Director of Development, for payment of issuance expenses incurred in
connection with the issuance of the Series 1993-5 Bonds, including, but not
limited to, the fees of the Original Purchasers,-the acceptance fee of the
Trustee, the fees and disbursements of bond counsel, Placement Agent's counsel,
printing fees and rating agency fees. On October 1, 1993, the Trustee shall
transfer any balance remaining in the Issuance Expense Account to the Project
Fund. Moneys in the Issuance Expense Account may be invested and reinvested by
the Trustee, at the direction of the Treasurer, in Eligible Investments, and the
earnings from any such investments shall be credited to the Project Fund.
In accordance with Section 7 of the General Bond Order, there are
hereby created as separate deposit accounts in the custody of the Trustee the
Series 1993-5 Primary Reserve Account (the "Primary Reserve Account") and the
Series 1993-5 Collateral Proceeds Account (the "Collateral Proceeds Account").
Moneys in the Primary Reserve Account shall be invested and disbursed in
accordance with the provisions of the General Bond Order. Moneys in the
Collateral Proceeds Account shall be invested and disbursed in accordance with
the provisions of the Financing Agreement and the General Bond Order.
Section 8. Project Fund. In accordance with Section 16 of the General
Bond Order, there is hereby created as a separate deposit account in the custody
of the Trustee the Series 1993-5 Project Fund (the "Project Fund"). Promptly
after the deposit of Series 1993-5 Bonds proceeds in the Program Transfer
Account in accordance with Section 7 of this Order, an amount of money equal to
the amount so deposited shall be transferred from the Program Transfer Account
to the Project Fund. Moneys in the Project Fund shall be invested and disbursed
by the Trustee
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in accordance with the provisions of the Financing, Agreement. Funds loaned to
the Company pursuant to that certain Loan Agreement dated September 21, 1993 by
and between the Director and the Company may be deposited in the Project Fund.
Section 9. Payments to Debt Service Account. The Treasurer hereby
acknowledges and confirms its agreement, pursuant to Section 14 of the General
Bond Order, to pay to the Trustee for deposit in the Debt Service Account at the
times set forth in said section, but only from the sources described in said
Section and only to the extent that such moneys are available from such sources,
moneys, which together with other moneys held by the Trustee and available for
such purpose, will be sufficient to permit the Trustee to pay the Debt Service
Charges on the Series 1993-5 Bonds.
Section 10. Supplement Number 38. The Treasurer shall in connection
with the issuance of the Series 1993-5 Bonds execute and deliver to the Trustee,
in the name of and on behalf of the State, Supplement Number 38 pursuant to the
Trust Agreement and containing provisions as permitted by the Act and the Trust
Agreement and approved by the Treasurer. Approval by the Treasurer shall be
conclusively evidenced by the execution of Supplement Number 38 by the
Treasurer.
Section 11. Taxes. The State does not represent or intend that interest
on the Series 1993-5 Bonds will be excluded from gross income for purposes of
federal income taxation. However, as provided in Section 166.08(T) of the Act,
the Series 1993-5 Bonds, the transfer thereof, and the income therefrom,
including any profit made on the sale thereof, shall at all times be free from
taxation within the State.
Section 12. General. The appropriate officers of the State will do all
things necessary and proper to implement and carry out the orders and agreements
set forth in or approved in the General Bond Order and this Order, for the
proper fulfillment of the purposes thereof. The Treasurer shall furnish to the
Original Purchasers a true certified transcript of all proceedings had with
reference to the authorization and issuance of the Series 1993-5 Bonds along
with other information as is necessary or proper with respect to the Series
1993-5 Bonds.
Order dated: September 1, 1993 /s/ Marry ▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Treasurer of State
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and
WHEREAS, the text of the Series 1993-5 Bonds, the form of assignment to
be printed thereon, the certificate of authentication to be endorsed thereon and
other provisions to be included therein are to be substantially in the following
forms with appropriate omissions, additions, insertions and variations as in the
Trust Agreement provided or permitted or as requested by the Trustee or
Authenticating Agent:
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BOND FORM
[Form of Series 1993-5 Bond]
REGISTERED NO. REGISTERED
$
THIS SERIES 1993-5 BOND HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF
ANY STATE. THIS BOND SERIES 1993-5 MAY NOT BE SOLD,
TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL THE
TREASURER OF STATE OF THE STATE OF OHIO HAS RECEIVED AN
OPINION OF LEGAL COUNSEL SATISFACTORY TO THE TREASURER OF
STATE THAT SUCH SALE, TRANSFER, PLEDGE OR HYPOTHECATION IS IN
COMPLIANCE WITH ALL APPLICABLE FEDERAL AND STATE SECURITIES
LAWS.
United States of America
State of Ohio
State Economic Development Revenue Bond (Ohio Enterprise Bond Fund)
Series 1993-5
(Foremost Mgmt., Inc. Project)
(Taxable Bond)
Interest Rate Per Annum Maturity Date Dated Date
7.54% June 1, 2013 September 21, 1993
Registered Owner:
Principal Amount: DOLLARS
THE STATE OF OHIO (the "State"), for value received, promises to pay to
the Registered Owner named above, or registered assigns, but, solely from the
sources and in the manner hereinafter referred to, the principal amount stated
above on the Maturity Date stated above (subject to applicable provisions for
prior redemption in whole or in part described herein) and interest thereon from
the Dated Date stated above until the principal amount is paid or provided for
at the Interest Rate stated above on March 1, June 1, September I and December I
of each year, commencing December 1, 1993 (the "Interest Payment Dates").
Interest will be based upon a year of twelve 30-day months.
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Principal, interest and any redemption premium ("Debt Service Charges")
are payable in lawful money of the United States of America, without deduction
for the services of any paying agent, to the person in whose name this Series
1993-5 Bond (or, if applicable, one or more predecessor Series 1993-5 Bonds) is
registered on the applicable record date (the "owner") on the Register
maintained by the Trustee as Bond Registrar. Principal and any redemption
premium are payable upon presentation and surrender of this Bond at the
principal corporate trust office of the Trustee, at present The Provident Bank,
Cincinnati, Ohio (the "Trustee"). Interest payable on each Interest Payment Date
is payable by check or draft mailed by the Trustee to the owner of this Series
1993-5 Bond (or one or more predecessor Series 1993-5 Bonds) as shown on the
Register at the close of business on the 15th day of the calendar month next
preceding that Interest Payment Date (the "Regular Record Date"), at the address
appearing thereon. The Trust Agreement contains provisions for a Special Record
Date in any case of interest not timely paid or provided for by the State.
DEBT SERVICE CHARGES ARE PAYABLE SOLELY FROM AND THAT PAYMENT IS
SECURED BY A PRIOR PLEDGE OF THE DEBT SERVICE ACCOUNT AND THE PLEDGED RECEIPTS
AS DEFINED IN AND TO THE EXTENT AND IN THE MANNER PROVIDED IN THE TRUST
AGREEMENT. THE RIGHT OF OWNERS OF THE SERIES 1993-5 BONDS TO PAYMENT OF DEBT
SERVICE CHARGES SHALL BE LIMITED TO THOSE PLEDGED RECEIPTS, AND THOSE OWNERS
SHALL HAVE NO RIGHT TO HAVE MONEYS RAISED BY TAXATION OBLIGATED OR PLEDGED FOR
THE PAYMENT OF DEBT SERVICE CHARGES.
This Series 1993-5 Bond is one of the State Economic Development
Revenue Bonds (Ohio Enterprise Bond Fund) (collectively, the "Bonds") authorized
and from time to time to be authorized in various series under and pursuant to
Section 13 of Article VIII of the Ohio Constitution, Chapter 166 of the Ohio
Revised Code (the "Act"), the General Bond Order issued by the Treasurer of
State of the State of Ohio (the "Treasurer") on April 11, 1988, and the Trust
Agreement dated as of April 1, 1988 between the State and the Trustee as the
same has been and may be supplemented or amended in accordance with its terms
(collectively, the "Trust Agreement"), to provide moneys for the purposes of the
State's Facilities Establishment Fund, including transfers from those Funds
authorized by the General Bond Order, to fund reserves and for other Authorized
Purposes as provided for in the Act, all relating to providing capital
facilities and improvements for industry, commerce, research and distribution
under the State's economic development financing program provided for in the
Act. As provided in and subject to the Trust Agreement, the Bonds may be issued
from time to time in one or more series, in various principal amounts, with
different maturities and interest rates, and may otherwise vary. The aggregate
principal amount of Bonds that may be issued under the Trust Agreement is not
limited except as provided in the Trust Agreement and as is or may hereafter be
provided by law or a Series Bond Order, and all Bonds will be equally and
ratably secured by the pledges and covenants made therein except as it otherwise
expressly provides or permits.
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Reference is made to the Trust Agreement for a more complete
description of the provisions, among others, with respect to the nature and
extent of the security, the rights, duties and obligations of the State, the
Trustee, the Bond Registrar, the Authenticating Agent and the owners, and the
terms and conditions upon which the Bonds are issued and secured. Each owner, by
the acceptance hereof, assents to all of the provisions of the Trust Agreement.
This Series 1993-5 Bond is one of a series of the Bonds (the "Series
1993-5 Bonds"), in the aggregate principal amount of $8,100,000, specifically
authorized by and issued pursuant to Series Bond Order No. R5-93 issued by the
Treasurer on September I , 1993, and the Trust Agreement, including the
Thirty-Eighth Supplemental Trust Agreement dated as of September 1, 1993, for
the purpose of providing funds for the acquisition of real property located in
Jackson, Ohio and the construction thereon of certain improvements and paying
the costs of issuance of the Series 1993-5 Bonds. The Project will be leased to
Foremost Mgmt., Inc., an Ohio corporation, (the "Company"), pursuant to a Lease,
dated as of September 21, 1993 (the "Financing Agreement"), between the Director
of Development of the State of Ohio and the Company.
The Series 1993-5 Bonds are issuable only as fully registered bonds in
the denominations of $100,000 and any integral multiple of $5,000 in excess
thereof. This Bond is transferable, and is exchangeable for Series 1993-5 Bonds
of authorized denominations in equal aggregate principal amounts, at the
principal corporate trust office of the Trustee, by the owner in person or by
attorney authorized in writing, upon presentation and surrender hereof to such
office, all subject to the terms, limitations and conditions provided in the
Trust Agreement. The Trustee and Authenticating Agent are not required to
transfer or exchange (i) any Bond during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Bonds and ending at the close of business on the day of that mailing, or (ii)
any Bonds so selected for redemption (in whole or in part) within the next
succeeding 90 days. The Trustee shall not record any transfer of this Series
1993-5 Bond nor authenticate or deliver any Series 1993-5 Bond to a transferee
unless and until the Treasurer has directed the Trustee, in writing, to record
such transfer and deliver such Series 1993-5 Bond. Any such written direction
from the Treasurer to the Trustee shall be accompanied by an opinion of legal
counsel satisfactory to the Treasurer, as indicated in such written direction,
addressed to the Treasurer and the Trustee, to the effect that such transfer is
in compliance with all applicable federal and state securities laws. Such legal
opinion shall be furnished at the expense of the transferor of the Series 1993-5
Bond.
The Series 1993-5 Bonds are subject to redemption at the option of the
State, but if the Company is not in default under the Financing Agreement, only
at the direction of the Company, prior to maturity on any Interest Payment Date
after September 1, 1993, in whole at a redemption price equal to the sum of the
principal amount of Series 1993-5 Bonds redeemed plus the Yield-Maintenance
Premium plus accrued interest to the redemption date.
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"Called Principal" means, with respect to any Series 1993-5 Bond, the
principal of such Series 1993-5 Bond that is to be redeemed at the option of the
State.
"Yield-Maintenance Premium" shall mean, with respect to any Series
1993-5 Bond, a premium equal to the excess, if any, of the Discounted Value of
the Called Principal of such Series 1993-5 Bond over the sum of (i) such Called
Principal plus (ii) interest accrued thereon as of (including interest due on)
the Settlement Date with respect to such Called Principal. If the State and the
owner of any Series 1993-5 Bond shall, prior to the Settlement Date, designate
in writing a lesser premium from that calculated as set forth in the preceding
sentence, the premium so designated shall be payable on the Settlement Date in
lieu of the Yield-Maintenance Premium as described in the preceding sentence
with respect to such Series 1993-5 Bond.
"Discounted Value" means, with respect to the Called Principal of any
Series 1993-5 Bond, the amount obtained by discounting all Remaining Scheduled
Payments with respect to the Called Principal from their respective scheduled
due dates to the Settlement Date with respect to such Called Principal, in
accordance with accepted financial practice and at a discount factor (applied on
a quarterly basis) equal to the Reinvestment Yield with respect to such Called
Principal.
"Remaining Scheduled Payments" shall mean, with respect to the Called
Principal of any Series 1993-5 Bond, all payments of such principal and interest
thereon that would be due on or after the Settlement Date with respect to such
Called Principal if no payment of such Called Principal were made prior to its
scheduled due date.
"Settlement Date" means with respect to the Called Principal of any
Series 1993-5 Bond, the date on which such Called Principal is to be redeemed at
the option of the State.
"Reinvestment Yield" shall mean, with respect to the Called Principal
of any Series 1993- 5 Bond, the yield to maturity implied by (i) the yields
reported, as of 10:00 a.m. (New York City time) on the Business Day next
preceding the Settlement Date with respect to such Called Principal, on the
display designated as "Page 678" on the Telerate Service (or such other display
as may replace Page 678 on the Telerate Service) for actively traded U.S.
Treasury securities having a maturity equal to the Remaining Average Life of
such Called Principal as of such Settlement Date, or if such yields shall not be
reported as of such time or the yields reported as of such time shall not be
ascertainable, (ii) the Treasury Constant Maturity Series yields reported, for
the latest date for which such yields shall have been so reported as of the
Business Day next preceding the Settlement Date with respect to such Called
Principal, in Federal Reserve Statistical Release H.15 (519) (or any comparable
successor publication) for actively traded U.S. Treasury securities having a
constant maturity equal to the Remaining Average Life of such called Principal
as of such Settlement Date. Such implied yield shall be determined, if
necessary, by (a) converting U.S. Treasury ▇▇▇▇ quotations to bond equivalent
yields in accordance with accepted financial practice and (b) interpolating
linearly between reported yields.
-16-
"Remaining Average Life" shall mean, with respect to the Called
Principal of any Series 1993-5 Bond, the number of years (calculated to the
nearest one-twelfth year) obtained by dividing (i) such Called Principal into
(ii) the sum of the products obtained by multiplying (a) each Remaining
Scheduled Payment of such Called Principal (but not of interest thereon) by (b)
the number of years (calculated to the nearest one-twelfth year) which will
elapse between the Settlement Date with respect to such Called Principal and the
scheduled due date of such Remaining Scheduled Payment.
The Series 1993-5 Bonds are subject to mandatory redemption by the
State at a redemption price equal to 100% of the principal amount redeemed plus
accrued interest to the date of redemption on the dates and in the principal
amounts set forth below:
Date Amount
---- ------
September 1, 1994 $45,000.00
December 1, 1994 $45,000.00
March 1, 1995 $50,000.00
June 1, 1995 $50,000.00
September 1, 1995 $50,000.00
December 1, 1995 $50,000.00
March 1, 1996 $50,000.00
June 1, 1996 $55,000.00
September 1, 1996 $55,000.00
December 1, 1996 $55,000.00
March 1, 1997 $55,000.00
June 1, 1997 $60,000.00
September 1, 1997 $60,000.00
December 1, 1997 $60,000.00
March 1, 1998 $60,000.00
June 1, 1998 $60,000.00
September 1, 1998 $65,000.00
December 1, 1998 $65,000.00
March 1, 1999 $65,000.00
June 1, 1999 $65,000.00
September 1, 1999 $70,000.00
December 1, 1999 $70,000.00
March 1, 2000 $70,000.00
June 1, 2000 $75,000.00
September 1, 2000 $75,000.00
December 1, 2000 $75,000.00
March 1, 2001 $80,000.00
June 1, 2001 $80,000.00
September 1, 2001 $80,000.00
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December 1, 2001 $80,000.00
March 1, 2002 $85,000.00
June 1, 2002 $85,000.00
September 1, 2002 $85,000.00
December 1, 2002 $90,000.00
March 1, 2003 $90,000.00
June 1, 2003 $95,000.00
September 1, 2003 $95,000.00
December 1, 2003 $95,000.00
March 1, 2004 $100,000.00
June 1, 2004 $100,000.00
September 1, 2004 $100,000.00
December 1, 2004 $105,000.00
March 1, 2005 $105,000.00
June 1, 2005 $110.000.00
September 1, 2005 $110,000.00
December 1, 2005 $115,000.00
March 1, 2006 $115,000.00
June 1, 2006 $115,000.00
September 1, 2006 $120,000.00
December 1, 2006 $120,000.00
March 1, 2007 $125,000.00
June 1, 2007 $125,000.00
September 1, 2007 $130,000.00
December 1, 2007 $130,000.00
March 1, 2008 $135,000.00
June 1, 2008 $1315,000.00
September 1, 2008 $140,000.00
December 1, 2008 $145,000.00
March 1, 2009 $145,000.00
June 1, 2009 $150,000.00
September 1, 2009 $150,000.00
December 1, 2009 $155,000.00
March 1, 2010 $160,000.00
June 1, 2010 $160,000.00
September 1, 2010 $165,000.00
December 1, 2010 $170,000.00
March.1, 2011 $170,000.00
June 1, 2011 $175,000.00
September 1, 2011 $180,000.00
December 1, 2011 $180,000.00
March 1, 2012 $185,000.00
June 1, 2012 $190,000.00
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September 1, 2012 $190,000.00
December 1, 2012 $195,000.00
March 1, 2013 $200,000.00
Unless otherwise retired prior to maturity, the remaining principal amount of
Series 1993-5 Bonds ($205,000.00), will be payable at their maturity on June 1,
2013.
If fewer than all Series 1993-5 Bonds are to be redeemed at one time,
the selection of the Series 1993-5 Bonds (including portions thereof) to be
called for redemption shall be made in the manner provided in Section 3.03 of
the Trust Agreement, provided that any such redemption shall be made pro rata
among the holders of the outstanding Series 1993-5 Bonds, based on the principal
amount of outstanding Series 1993-5 Bonds held by each holder; provided, that
the principal amount to be redeemed from each such holder shall be rounded, in a
manner that the Trustee considers fair and appropriate, to the nearest whole
multiple of $5,000. Optional and mandatory redemption will be exercised by
notice mailed by the Trustee at least 30 days prior to the redemption date to
the owner, as shown on the Register on the 15th day preceding, the mailing, of
each Series 1993-5 Bond subject to redemption in whole or part at the owner's
address then shown thereon. If Series 1993-5 Bonds or portions of Series 1993-5
Bonds are called for redemption and if on that redemption date moneys for the
redemption thereof are held in an appropriate fund or account so as to be
available therefor, then from and after that redemption date those Series 1993-5
Bonds or portions of Series 19935 Bonds shall cease to bear interest and shall
cease to be secured by and shall not be deemed to be outstanding under the Trust
Agreement.
The owners of the Series 1993-5 Bonds and other Bonds issued under the
Trust Agreement will not be entitled to enforce the provisions of, or to
institute, appear in or defend any suit, action or proceeding to enforce any
rights, remedies or covenants granted or contained in, or to take any action
with respect to any event of default under, the Trust Agreement, except as
provided in the Trust Agreement.
The Trust Agreement permits certain amendments to the Trust Agreement
to be made without the consent of or notice to the owners, and other amendments
to be made with the consent of the owners of a majority in aggregate principal
amount of the Bonds then outstanding to be affected thereby.
This Series 1993-5 Bond shall not constitute the personal obligation of
the Treasurer of State.
The State does not represent or intend that interest on the Series
1993-5 Bonds will be excluded from gross income for purposes of federal income
taxation.
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This Series 1993-5 Bond shall not be entitled to any security or
benefit under the Trust Agreement or become valid or obligatory for any purpose
until the certificate of authentication hereon shall have been signed.
It is hereby certified and recited that all acts and conditions
necessary to be done or to happen or exist precedent to and in the issuance of
the Series 1993-5 Bonds in order to make them legal, valid and binding special
obligations of the State, in accordance with their terms, and in the execution
and delivery of the Trust Agreement and Thirty-Eighth Supplemental Trust
Agreement described herein, have been done and happened or exist as required by
law; that payment in full for the Series 1993-5 Bonds has been received; and
that the Series 1993-5 Bonds do not exceed or violate any constitutional or
statutory limitation.
IN WITNESS WHEREOF, the State of Ohio, under the authority described in
this Series 1993-5 Bond, has caused this Series 1993-5 Bond to be executed by
the facsimile signature of the Treasurer of State of the State of Ohio, and a
facsimile of the Great Seal of the State of Ohio to be affixed hereon, as of the
Dated Date stated above.
--------------------------------
Treasurer of State
[Great Seal]
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CERTIFICATE OF AUTHENTICATION
This Series 1993-5 Bond is one of the Series 1993-5 Bonds issued under
the provisions of the within mentioned Trust Agreement and Thirty-Eighth
Supplemental Trust Agreement.
The Provident Bank, as Trustee
By
-----------------------------
Authorized Officer
Date of Registration and
Authentication: ____________________________
[Form of Assignment]
For value received, the undersigned sells, assigns and transfers unto
_________________ the within Series 1993-5 Bond and irrevocably constitutes and
appoints _________________ attorney to transfer this Bond on the Register, with
full power of substitution in the premises.
Dated:
--------------------------
Signature Guaranteed:
--------------------------
Notice: The assignor's signature to this assignment must correspond exactly
with the name as it appears on the face of this Bond.
-21-
WHEREAS, the State has, or will have, in all respects complied with the
provisions of the Trust Agreement so as to be entitled to execute and to have
authenticated and delivered the Series 1993-5 Bonds.
WHEREAS, pursuant to Section 4 of the General Bond Order and the
applicable provisions of Article VIII of the Trust Agreement, the State desires
by this Supplement Number 38 and the Series Bond Order above to provide for the
issuance pursuant to the Trust Agreement of the Series 1993-5 Bonds;
NOW, THEREFORE, THIS THIRTY-EIGHTH SUPPLEMENTAL TRUST AGREEMENT,
WITNESSETH that in order to secure the payment of the principal of and interest
on the Series 1993-5 Bonds according to their true intent and meaning, and to
secure the performance and observance of all covenants and conditions therein,
herein, and in the Trust Agreement contained, and for and in consideration of
the premises and of the purchase and acceptance of the Series 1993-5 Bonds by
the holders thereof from time to time, and the acceptance by the Trustee of the
further trust hereby created, and for other good and valuable consideration, the
receipt of which is acknowledged, the State has executed and delivered this
Supplement Number 38.
IN TRUST, NEVERTHELESS, upon the terms and trusts in the Trust
Agreement and this Supplement Number 38 set forth for the security of all
present and future holders of the Bonds issued or to be issued under and secured
by the Trust Agreement, without priority of any one Bond over any other by
reason of series designation, form, number, date of authorization, issuance,
sale, execution or delivery, or date of the Bond or of maturity, except as may
be otherwise permitted by the Trust Agreement.
Section 1. Incorporation of Order. The terms and provisions of the
Series Bond Order No. R5-93 as set forth above, constitute part of this
Supplement Number 38 as if those terms and provisions were here set forth.
Section 2. Form, Execution, Authentication and Delivery. The Series
1993-5 Bonds shall be executed, authenticated and delivered as provided herein
and in the Trust Agreement, and in the Series 1993-5 Bonds, and the certificate
of authentication to be endorsed thereon shall be substantially in the form
provided herein with any necessary modifications to conform hereto.
Section 3. Transfer, Exchange and Registration. The Series 1993-5 Bonds
are subject to all the terms and conditions of the Trust Agreement relating to
transfer, exchange and registration; provided, however, that the Trustee, in its
capacity as Bond Registrar, shall not record any transfer of a Series 1993-5
Bond on the Register for such Bonds nor authenticate or deliver any Series
1993-5 Bond to a transferee unless and until the Treasurer has directed the
Trustee, in writing, to record such transfer and deliver such Series 1993-5
Bond. Any such written direction from the Treasurer to the Trustee shall be
accompanied by an opinion of legal counsel satisfactory to the Treasurer, as
indicated in such written direction, addressed to the
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Treasurer and the Trustee, to the effect that such transfer is in compliance
with all applicable federal and state securities laws. Such legal opinion shall
be furnished at the expense of the transferor of the Series 1993-5 Bond.
Section 4. Proceeds of Sale. The proceeds from the sale of the Series
1993-5 Bonds shall be applied as provided in Series Bond Order No. R5-93.
Section 5. Concerning the Trustee. The Trustee accepts the trusts
herein declared and provided and agrees to perform the same upon the terms and
conditions in the Trust Agreement and in this Supplement Number 38.
The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Supplement Number 38 or the due
execution thereof by the State, or for or in respect of the recitals herein
contained, all of which recitals are made by the State solely.
IN WITNESS WHEREOF, the State has caused this Thirty-Eighth
Supplemental Trust Agreement to be executed by its duly authorized Treasurer of
State, and The Provident Bank, Cincinnati, Ohio, as Trustee, in token of its
acceptance of the trusts created hereunder, has caused this Thirty-Eighth
Supplemental Trust Agreement to be executed in its name, all as of the date
first written above.
STATE OF OHIO
By: /s/ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Treasurer of State
THE PROVIDENT BANK, Trustee
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------
▇▇▇▇▇ ▇. ▇▇▇▇, Vice President
By: /s/▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Trust Officer