EXHIBIT 10.6
TWENTIETH SUPPLEMENTAL TRUST AGREEMENT
Pertaining to
STATE OF OHIO
$6,715,000 STATE ECONOMIC DEVELOPMENT REVENUE BONDS
(OHIO ENTERPRISE BOND FUND)
SERIES 1991-10
(LUIGINO'S, INC. PROJECT)
This Twentieth Supplemental Trust Agreement, dated as of September 1, 1991
(the "Supplement Number Twenty"), 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.
W I T N E S S E T H:
WHEREAS, the State, pursuant to direction of the Director of Development
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 under
Section 166.08(B) oi the Revised Code, the Treasurer issued Series Bond order
No. R10-91 dated September 18, 1991 providing for the issuance and sale of
$6,715,000 State Economic Development Revenue Bonds (Ohio Enterprise Bond Fund),
Series 1991-10 (Luigino's, Inc. Project) (the "Series 1991-10 Bonds") and this
Supplement Number Twenty, which Series Bond Order No. R10-91 is incorporated
herein, constitutes an integral part of this Supplement Number Twenty, and
provides in its entirety as follows:
STATE OF OHIO
STATE ECONOMIC DEVELOPMENT REVENUE BONDS
(OHIO ENTERPRISE BOND FUND)
SERIES BOND ORDER NO. R10-91
Providing for the authorization, issuance and sale of $6,715,000
State Economic Development Revenue Bonds (Ohio Enterprise
Bond Fund), Series 1991-10 (Luigino's, Inc. Project), pursuant to
Trust Agreement dated as of April 1, 1998.
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; and
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 $6,715,000 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 $6,715,000 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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"▇▇▇▇ ▇▇▇▇▇▇▇▇ Agreement" means the Bond Purchase Agreement among the
State, the Company and the Original Purchaser, providing for the sale of the
Series 1991-10 Bonds to the Original Purchaser.
"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 on the Series
1991-10 Bonds may be transferred only through a book entry and (ii) physical
Series 1991-10 Bonds in fully registered form are issued only to a Depository or
its nominee as registered owner, with the Series 1991-10 Bonds "immobilized" to
the custody of the Depository, and the book entry is the record that identifies
the owners of beneficial interests in those Series 1991-10 Bonds.
"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 or under the Internal Revenue Code of 1954, as
amended, and any successor provisions to such Sections, regulations or proposed
regulations.
"Collateral Proceeds Account" means the Series 1991-10 Collateral Proceeds
Account, created pursuant to the General Bond Or-der and Section 7 of this
Order, in the Economic Development Bond Service Fund.
"Company" means Luigino's, Inc., a corporation organized under the laws of
the State of Minnesota.
"Depository" means any securities depository that is a clearing agency
under federal law operating and maintaining, together with its participants, a
book entry system to record beneficial ownership of Series 1991-10 Bonds, and to
effect transfers of Bonds, In book entry form, and includes The Depository Trust
Company (a limited purpose trust company), New York, New York.
"Determination of Taxability" means the receipt by the Trustee or a
Bondholder of a ruling or technical advice by the Internal Revenue Service in
which the Company has participated or a written opinion by an attorney or firm
of attorneys of recognized standing on the subject of municipal bonds selected
by the Trustee or a Bondholder and approved by the Company, which approval shall
not be unreasonably withheld, to the effect that interest on the Series 1991-10
Bonds is includable in the gross income for federal income tax purposes of a
holder (other than a holder who Is a "substantial user" of the Project or a
"related person" as such terms are used in Section 147(a) of the Code).
"Federal Income Tax Compliance Agreement" means the Federal Income Tax
Compliance Agreement among the Treasurer, the Trustee and the Company relating
to the Series 1991-10 Bonds.
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"Financing Agreement" means the Lease, dated as of September 1, 1991,
between the Director of Development and the Company, as from time to time
amended.
"Independent Counsel" means any attorney duly admitted to practice before
the highest court of any state and not an officer or a full time employee of the
State or the Company.
"Independent Tax Counsel" means Independent Counsel, selected by the
Treasurer and satisfactory to the Trustee, experienced in matters relating to
the exclusion from gross income for purposes of federal income taxation of
interest on obligations issued by states or their political subdivisions."
"Issuance Expense Account" means the Series 1991-10 Issuance Expense
Account created in Section 7 of this order.
"Original Purchaser" means, as to the Series 1991-10 Bonds, ▇▇▇▇▇▇▇▇
Company Securities, Inc. and ▇▇▇▇▇▇ Securities Incorporated.
"Primary Reserve Account" means the Series 1991-10 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 Equipment, constituting an Eligible Project.
"Project Equipment" means the equipment, machinery and other personal
property described on Exhibit A attached to the Financing Agreement.
"Project Fund" means the Series 1991-10 Project Fund, established pursuant
to Section 8 of this order.
"Project Site" means the Company's frozen food production facility located
in Jackson, Ohio.
"Series 1991-10 Bonds" means the Bonds authorized by this Order.
"Supplement Number Twenty" means the Twentieth Supplemental Trust
Agreement, dated as of September 1, 1991, between the Treasurer and the Trustee,
of which this Order is a part.
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
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Bond order No. R10-91", and the terms "hereof", "herein", "hereby", "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), (3) and (4) of Subsection 3(a) of the General
Bond Order are or will be satisfied at the time of authentication of the Series
1991-10 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 1991-10 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 1991-10 Bonds.
It is necessary to and the State shall issue, sell and deliver, as provided in
this Order, $6,715,000 principal amount of bonds of the State, which shall be
designated "State Economic Development Revenue Bonds (Ohio Enterprise Bond
Fund), Series 1991-10 (Luigino's, Inc. Project)", for the purpose of acquiring
the Project and paying certain costs of issuance of the Series 1991-10 Bonds.
Section 5. Terms and Provisions Applicable to Series 1991-10 Bonds. The
Series 1991-10 Bonds shall be initially issued in fully registered form and
substantially in the form set forth in Supplement Number Twenty. The Series
1991-10 Bonds shall be numbered in such manner so as to distinguish each Series
1991-10 Bond from any other Series 1991-10 Bond and shall be in the denomination
of $5,000 or any integral multiple thereof requested by the bondholder.
Each Series 1991-10 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
1991-10 Bond interest is in default thereon, such Series 1991-10 Bond shall be
dated as of the date to which interest has been paid; and provided, further,
that Series 1991-10 Bonds authenticated prior to December 1, 1991 shall be dated
September 1, 1991. Interest shall be paid based upon a year of twelve 30 day
months.
The Series 1991-10 Bonds shall bear interest from their respective dates,
payable semiannually on June 1 and December I of each year, beginning December
1, 1991, at the rates and shall mature on the dates and in the principal amounts
set forth in the following table:
Date Amount Rate Date Amount Rate
---- -------- ---- ---- -------- ----
December 1, 1992 $370,000 5.25% December 1, 1996 $375,000 6.20%
June 1, 1993 370,000 5.60 June 1, 1997 375,000 6.40
December 1, 1993 370,000 5.60 December 1, 1997 375,000 6.40
June 1, 1994 370,000 5.80 June 1, 1998 375,000 6.50
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Date Amount Rate Date Amount Rate
---- -------- ---- ---- -------- ----
December 1, 1994 370,000 5.80 December 1, 1998 375,000 6.50
June 1, 1995 370,000 6.00 June 1, 1999 375,000 6.60
December 1, 1995 370,000 6.00 June 1, 2001 1,500,000 6.85
June 1, 1996 375,000 6.20
In the event of exercise by the Company of its option to purchase the
Project upon the occurrence of certain events as described and provided for in
Section 10.2 of the Financing Agreement, the Series 1991-10 Bonds are subject to
redemption by the State in whole at any time at a redemption price of 100% of
the principal amount thereof plus accrued interest to the redemption date.
If, after the occurrence of a Determination of Taxability, (1) the Company
has purchased and paid for the Project in accordance with Section 10.6 of the
Financing Agreement, or (ii) the State has delivered to the Trustee moneys,
received by the Director from the exercise of remedies under the Financing
Agreement, sufficient to provide for redemption of its Series 199110 Bonds, the
Series 1991-10 Bonds are subject to mandatory redemption by the State at a
redemption price of 103% of the principal amount redeemed plus accrued interest
to the redemption date on a date selected by the Trustee but not less than
thirty (30) nor more than sixty (60) days following the earliest date upon which
the Trustee has in its possession moneys sufficient to redeem the Series 1991-10
Bonds. The Series 1991-10 Bonds shall be redeemed in whole unless, in the
opinion of Independent Tax Counsel, the redemption of a portion of the
outstanding principal amount of the Series 1991-10 Bonds would have the result
that the interest payable on the Series 1991-10 Bonds remaining outstanding
after such redemption would not be included in the gross income for federal
income tax purposes of any holder of the Series 1991-10 Bonds (other than a
holder who is a "substantial user" of the Project or a "related person" within
the meaning of Section 147(a) of the Code), in which event only such portion of
the outstanding Series 1991-10 Bonds shall be redeemed.
If, after the occurrence of a Determination of Taxability, the Company has
failed to purchase and pay for the Project in accordance with Section 10.6 of
the Financing Agreement, the interest rates on the Series 1991-10 Bonds shall
increase by 2.25% per annum over rates set forth in the immediately preceding
table effective on the 31st day after the occurrence of the Determination of
Taxability.
The Series 1991-10 Bonds maturing after June 1, 1996 are also 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 or after June 1, 1996, in whole at any time or in part on any
Interest Payment Date, at the redemption prices (expressed as a percentage of
the principal amount) set forth below, plus accrued interest to the redemption
date:
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Redemption Period Redemption Price
----------------- ----------------
June 1, 1996 through May 31, 1997, inclusive 102%
June 1, 1997 through May 31, 1998, inclusive 101
June 1, 1998 and thereafter 100
The Series 1991-10 Bonds maturing an June 1, 2001 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
---- ------
December 1, 1999 $375,000
June 1, 2000 375,000
December 1, 2000 375,000
Unless otherwise retired prior to maturity, the remaining principal amount of
Series 1991-10 Bonds ($375,000), will be payable at their maturity on June 1,
2001.
The State shall have the option to deliver to the Trustee for cancellation
Series 1991-10 Bonds maturing on June 1, 2001, in any aggregate principal amount
and receive a credit against the then current applicable mandatory redemption
requirement as set forth above for such Series 1991-10 Bonds. A credit shall
also be received for any Series 1991-10 Bonds maturing an June 1, 2001, 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 such Series 1991-10
Bonds. Each Series 1991-10 Bond maturing on June 1, 2001, 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 such Series 1991-10 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 1991-10 Bonds are called for
optional or mandatory redemption at one time, the selection of the Series
1991-10 Bonds (including portions thereof) to be called for redemption shall be
made in the manner provided in Section 3.03 of the Trust Agreement. Notice of
call for redemption of Series 1991-10 Bonds shall be given in the manner
provided in Section 5(d) of the General Bond Order.
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Principal of and redemption premium on the Series 1991-10 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 1991-10 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 1991-10 Bond providing for making all payments to that owner of principal
and interest on that Series 1991-10 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 1991-10
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 1991-10 Bond an 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 1991-10 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 1991-10 Bonds shall be executed and authenticated by the persons
and in the manner provided in the Trust Agreement.
The Series 1991-10 Bonds shall be initially issued to a Depository for use
in a book entry system, and the following provisions of this Section 5 shall
apply notwithstanding any other provision of this order: (i) there shall be a
single Series 1991-10 Bond of each maturity, (ii) those Series 1991-10 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 Series 1991-10 Bonds in
the form of physical securities or certificates; (iv) ownership of beneficial
interests in any Series 1991-10 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 Series 1991-10 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 State. Debt
Service Charges on series 1991-10 Bonds in book entry form registered in the
name of a Depository or its nominee shall be payable in next day funds delivered
to the Depository or its authorized representative (1) in the case of interest,
on each interest payment date, and (ii) in all other cases, upon presentation
and surrender of Series 1991-10 Bonds as provided in this Order.
The Treasurer and the Trustee shall execute and deliver the letter
agreement among the State, the Trustee and The Depository Trust Company, as
Depository, to be delivered in
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connection with the issuance of the Series 1991-10 Bonds to a Depository for use
in a book entry system.
If any Depository determines not to continue to act as a depository for the
Series 1991-10 Bonds for use in a book entry system, the State and the Trustee
may attempt to have established a securities depository/book entry relationship
with another qualified Depository. If the State and the Trustee do not or are
unable to do so, the State and the Trustee, after the Trustee has made provision
for notification of the beneficial owners by the then Depository, shall permit
withdrawal of the Series 1991-10 Bonds from the Depository, and authenticate and
deliver Series 1991-10 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 Series 1991-10 Bonds), if the event is not the result of
action or inaction by the State or the Trustee, of those persons requesting such
issuance.
Section 6. Sale of Series 1991-10 Bonds. The Series 1991-10 Bonds shall be
sold pursuant to the terms of the Bond Purchase Agreement, which is hereby
approved in all respects. The Bond Purchase 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 Bond
Purchase Agreement with this execution being conclusive evidence of that
approval. The State hereby ratifies the use of the Preliminary official
Statement and consents to the use of the Official Statement, each identified in
the Bond Purchase Agreement, in connection with the initial sale of the Series
1991-10 Bonds. The forms of the Preliminary official Statement and the Official
Statement are hereby approved.
Section.7. Allocation of Proceeds of Series 1991-10 Bonds; Creation of
Accounts. The proceeds from the sale of the Series 1991-10 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 1991-10 Bonds;
(ii) To the Issuance Expense Account, the sum of $73,865;
(iii) To the Primary Reserve Account, the sum of $671,500 (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 1991-10 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 1991-10 Bonds,
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including, but not limited to-1 the fees of the Original Purchasers, the
acceptance fee of the Trustee, the fees and disbursements of bond counsel,
printing fees and rating agency fees. On October 31, 1991, 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, which
are not "investment property" within the meaning of Section 148.of the Code, 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
1991-10 Primary Reserve Account (the "Primary Reserve Account") and the Series
1991-10 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 1991-10 Project Fund (the "Project Fund"). Promptly after
the deposit of Series 1991-10 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 in accordance with the provisions of the Financing Agreement.
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 1991-10 Bonds.
Section 10. Supplement Number Twenty. The Treasurer shall in connection
with the issuance of the Series 1991-10 Bonds execute and deliver to the
Trustee, in the name of and on behalf of the State, Supplement Number Twenty
pursuant to the Trust Agreement and containing provisions as permitted by the
Act ind the Trust Agreement and approved by the Treasurer. Approvals by the
Treasurer shall be conclusively evidenced by the execution of Supplement Number
Twenty by the Treasurer.
Section 11. Federal Income Tax Exemption. The State covenants that it will
restrict the use of the proceeds of the Series 1991-10 Bonds in such manner and
to such extent as may be necessary so that the Series 1991-10 Bonds will not
constitute arbitrage bonds under Section 148 of the Code. The Treasurer or an
Authorized Officer, alone or in conjunction with the Company
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or any officer, employee or agent of or consultant to the Company, shall give an
appropriate certificate of the State for inclusion in the transcript of
proceedings for the Series 1991-10 Bonds, setting forth the reasonable
expectations of the State regarding the amount and use of the proceeds of the
Series 1991-10 Bonds, the facts, estimates and circumstances on which they are
based, and other facts and circumstances relevant to the tax treatment of
interest on the Series 1991-10 Bonds.
The State covenants that it (i) will take, or require to be taken, all
actions that may be required of it for the interest on the Series 1991-10 Bonds
to be and remain excluded from gross income for federal income tax purposes, and
(ii) will not take or authorize to be taken any actions that would adversely
affect that exclusion under the provisions of the Code. The Treasurer or an
Authorized Officer shall take any and all actions and make or give such reports
and certifications as may be appropriate to assure such exclusions of that
interest.
The Treasurer shall join the Company and the Trustee in executing and
delivering the Federal Income Tax Compliance Agreement.
Section 12. Section 144(a)(4) Election. The State hereby elects to have the
$10 million dollar limit in Section 144(a)(4) of the Code apply with respect to
the Series 1991-10 Bonds.
Section 13. General. The appropriate officers of the State will do all
things necessary and proper to implement and carry out the orders and agreements
met 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 1991-10 Bonds- along
with other information as is necessary or proper with respect to the Series
1991-10 Bonds.
Order dated: September 18, 1991 /s/ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Treasurer of State
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and
WHEREAS, the text of the Series 1991-10 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 1991-10 Bond)
REGISTERED NO. REGISTERED
$
United States of America
State of Ohio
State Economic Development Revenue Bond (Ohio Enterprise Bond Fund)
Series 1991-10
(Luigino's, Inc. Project)
Interest Rate Per Annum Maturity Date Dated Date
% (June 1)(December 1, ____ _________
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 June I and December 1 of each year, commencing
December 1, 1991 (the "Interest Payment Dates"). Interest will be based upon a
year of twelve 30-day months.
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
1991-10 Bond (or, if applicable, one or more predecessor Series 1991-10 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
1991-10 Bond (or one or more predecessor Series 1991-10 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.
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DEBT SERVICE CHARGES ARE PAYABLE SOLELY FROM AND THAT PAYMENT IS SECURED BY
A PRIOR PLEDGE OF TEE 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 1991-10 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 1991-10 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.
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 1991-10 Bond is one of a series of the Bonds (the Series
1991-10 Bonds"), in the aggregate principal amount of $6,715,000, specifically
authorized by and issued pursuant to Series Bond Order No. R10-91 issued by the
Treasurer on September 18, 1991, and the Trust Agreement, including the
Twentieth Supplemental Trust Agreement dated as of September 1, 1991, for the
purpose of providing funds for the acquisition of equipment for a frozen food
production facility (the "Project") and paying a portion of the costs of
issuance of the Series 1991-10 Bonds. The Project will be leased to Luigino's,
Inc. (the "Company") pursuant to a Lease, dated as of September 1, 1991 (the
"Financing Agreement"), between the Director of Development of the State of Ohio
and the Company.
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The Series 1991-10 Bonds are issuable only as fully registered bonds in the
denominations of $5,000 and any integral multiple thereof. This Bond is
transferable, and Is exchangeable for Series 1991-10 Bonds of authorized
denominations in equal aggregate principal amounts, at the office of the
Trustee, by the owner in person or by attorney authorized in writing, upon
presentation and surrender hereof to one of these offices, 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 1991-10 Bond nor authenticate or
deliver any Series 1991-10 Bond to a transferee unless and until the Treasurer
has directed the Trustee, in writing, to record such transfer and deliver such
Series 1991-10 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 1991-10 Bond.
In the event of exercise by the Company of its option to purchase the
Project upon the occurrence of certain events as described and provided for in
Section 10.2 of the Financing Agreement, the Series 199110 Bonds are subject to
redemption by the State in whole at any time at a redemption price of 100% of
the principal amount thereof plus accrued interest to the redemption date.
If, after the occurrence of a Determination of Taxability, (i) the Company
has purchased and paid for the Project in accordance with Section 10.6 of the
Financing Agreement, or (ii) the state has delivered to the Trustee moneys,
received by the Director from the exercise of remedies under the Financing
Agreement, sufficient to provide for redemption of its Series 1991-10 Bonds, the
Series 1991-10 Bonds are subject to mandatory redemption by the State at a
redemption price of 103% of the principal amount redeemed plus accrued interest
to the redemption date on a date selected by the Trustee but not less than
thirty (30) nor more than sixty (60) days following the earliest date upon which
the Trustee has in its possession moneys sufficient to redeem the Series 1991-10
Bonds. The Series 1991-10 Bonds shall be redeemed in whole unless, in the
opinion of Independent Tax Counsel, the redemption of a portion of the
outstanding principal amount of the Series 1991-10 Bonds would have the result
that the interest payable on the Series 1991-10 Bonds remaining outstanding
after such redemption would not be included in the gross income for federal
income tax purposes of any holder of the Series 1991-10 Bonds (other than a
holder who is a "substantial user" of the Project or a "related person" within
the meaning of Section 147(a) of the Code), in which event only such portion of
the outstanding Series 1991-10 Bonds shall be redeemed. "Determination of
Taxability" means the receipt by the Trustee or a Bondholder of a ruling or
technical advice by the Internal Revenue Service in which the Company has
participated or a written opinion by an attorney or firm of attorneys of
recognized standing on the subject of municipal bonds selected by the Trustee or
a Bondholder
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and approved by the Company, which approval shall not be unreasonably withheld,
to the effect that interest on the Series 1991-10 Bonds is includable in the
gross income for federal income tax purposes of a holder (other than a holder
who is a "substantial user" of the Project or a "related person" as such terms
are used in Section 147(a) of the Internal Revenue Code of 1986, as amended).
If, after the occurrence of a Determination of Taxability, the Company has
failed to purchase and pay for the Project in accordance with Section 10.6 of
the Financing Agreement, the interest rates on the Series 1991-10 Bonds shall
increase by 2.25% per annum over rates set forth in the immediately preceding
table effective on the 31st day after the occurrence of the Determination of
Taxability.
The Series 1991-10 Bonds maturing after June 1, 1996 are also 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 or after June 1, 1996, in whole at any time or in part on any
Interest Payment Date, at the redemption prices (expressed as a percentage of
the principal amount) set forth below, plus accrued interest to the redemption
date:
Redemption Period Redemption Price
----------------- ----------------
June 1, 1996 through May 31, 1997, inclusive 102%
June 1, 1997 through May 31, 1998, inclusive 101
June 1, 1998 and thereafter 100
The Series 1991-10 Bonds maturing on June 1, 2001 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
---- --------
December 1, 1999 $375,000
June 1, 2000 375,000
December 1, 2000 375,000
Unless otherwise retired prior to maturity, the remaining principal amount of
such Series 1991-10 Bonds ($375,000), will be payable at their maturity on June
1, 2001.
If fewer than all Series 1991-10 Bonds are to be redeemed at one time they
shall be selected by lot by the Trustee. 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 1991-10 Bond subject to redemption in whole or part
at the owner's address then shown thereon. If Series 1991-10 Bonds or portions
of Series 1991-10 Bonds are called for redemption and if on that redemption date
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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 1991-10 Bonds or portions of Series 1991-10 Bonds shall cease to bear
interest and shall cease to be secured by and shall not be deemed to be
outstanding under the Agreement.
The owners of the Series 1991-10 Bonds and other bonds issued under the
Trust Agreement (collectively, the "Bonds") 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 1991-10 Bond shall not constitute the personal obligation of
the Treasurer of State.
This Series 1991-10 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
1991-10 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 Twentieth Supplemental Trust Agreement described
herein, have been done and happened or exist as required by law; that payment in
full for the Series 1991-10 Bonds has been received; and that the Series 1991-10
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 1991-10 Bond, has caused this Series 1991-10 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 State of Ohio to be affixed hereon, as of the
date stated above.
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Treasurer of State
(Great Seal)
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CERTIFICATE OF AUTHENTICATION
This Series 1991-10 Bond is one of the Series 1991-10 Bonds issued under
the provisions of the within mentioned Trust Agreement and Twentieth
Supplemental Trust Agreement.
The Provident Bank, as Trustee
By
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Authorized Officer
Date of Registration and
Authentication:
----------------------
[Form of Assignment]
For value received, the undersigned sells, assigns and transfers unto
________________ the within Series 1991-10 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.
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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 1991-10 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 Twenty and the Series Bond Order above to provide for the
issuance pursuant to the Trust Agreement of the Series 1991-10 Bonds;
NOW, THEREFORE, THIS Twentieth SUPPLEMENTAL TRUST AGREEMENT, WITNESSETH
that in order to secure the payment of the principal of and interest on the
Series 1991-10 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 1991-10 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 Twenty.
IN TRUST, NEVERTHELESS, upon the terms and trusts in the Trust Agreement
and this Supplement Number Twenty 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. R10-91, as set forth above, constitute part of this Supplement
Number Twenty as if these terms and provisions were here set forth.
Section 2. Form, Execution, Authentication and Delivery. The Series 1991-10
Bonds shall be executed, authenticated and delivered as provided herein and in
the Trust Agreement, and in the Series 1991-10 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 199110 Bonds are
subject to all the terms and conditions of the Trust Agreement relating to
transfer, exchange and registration.
Section 4. Proceeds of Sale. The proceeds from the sale of the Series
1991-10 Bonds shall be applied as provided in Series Bond Order No. R10-91.
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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 Twenty.
The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Supplement Number Twenty 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 Twentieth 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 Twentieth 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/ ▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇, Vice President
By:
-----------------------------------
___________________ , Trust Officer
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