This Section will apply to an issue of Notes only to the extent specifically adopted in a Note Resolution.
(a) Primary Offering Disclosure-Official Statement. Upon the adoption of a Note Resolution, the Authorized Officer shall be authorized and directed to:
(1) Prepare or cause to be prepared and to make or authorize modifications, completions, or changes of or supplements to, a disclosure document in the form of an official statement,
(2) Determine, and certify or otherwise represent, when the official statement is to be "deemed final" (except for permitted omissions) or is a final official statement for purposes of the SEC Rule,
(3) Use and distribute, or authorize the use and distribution of, that official statement and any supplements in connection with the original issuance of the Notes, and
(4) Complete and sign the final official statement together with certificates, statements, or other documents in connection with the finality, accuracy, and completeness of that official statement.
(b) Secondary Market Disclosure-Continuing Disclosure Agreement. For the benefit of the Holders of the Notes and the beneficial owners of the Notes, the County shall agree, as the only obligated person with respect to the Notes under the SEC Rule, to provide financial information and operating data, financial statements, and notices, in the manner required for purposes of paragraph (b)(5)(i) of the SEC Rule.
(1) Information filing. The County further agrees, in particular, to provide:
A. To each NRMSIR and to the SID:
1. Annual Information for each County fiscal year not later than nine months following the end of the fiscal year, and
2. When and if available, audited County financial statements for each of those fiscal years;
B. To each NRMSIR or to the MSRB, and to the SID, in a timely manner, notice of:
1. Any Specified Event if that Specified Event is material,
2. The County's failure to provide the Annual Information within the time specified above, and
3. Any change in the accounting principles applied in the preparation of its annual financial statements, any change in its fiscal year, its failure to appropriate funds to meet costs to be incurred to perform the Continuing Disclosure Agreement, and the termination of the Continuing Disclosure Agreement; and
C. If the filing is due after the effective date of the EMMA System, to EMMA, in a timely manner, the filings required by subsections (b)(1) A. and B. hereof, to the extent required by the SEC Rule. The filings required by subsections (b)(1) A. and B. hereof need not be made with the NRMSIRs, SID, or MSRB to the extent that filing with the EMMA System is sufficient under the SEC Rule.
(2) Continuing disclosure certificate. To further describe and specify certain terms of the Continuing Disclosure Agreement, the Authorized Officer shall:
A. Complete, sign, and deliver the Continuing Disclosure Certificate, in the name and on behalf of the County and
B. To specify in reasonable detail the Annual Information to be provided (which may be provided by specific reference to other documents previously filed and available in accordance with the SEC Rule), whether the County has obtained any credit enhancement for the Notes, and the County's expectations as to whether audited financial statements will be prepared, the accounting principles to be applied in their preparation, and whether they will be available together with, or separately from, the Annual Information.
(3) Disclosure procedures. The Authorized Officer shall establish procedures to ensure compliance by the County with the Continuing Disclosure Agreement, including timely provision of information and notices as described above. Before making any filing in accordance with subsection (b)(2) hereof or providing notice of the occurrence of any other events, the Authorized Officer may consult with and obtain legal advice from bond counsel or other qualified independent special counsel selected by the County. The Authorized Officer, acting in the name and on behalf of the County, may rely upon that legal advice in determining whether a filing should be made.
(4) Amendments. The County reserves the right to amend the Continuing Disclosure Agreement, and to obtain the waiver of noncompliance with any provision of the Continuing Disclosure Agreement, as may be necessary or appropriate to achieve its compliance with any applicable federal securities law or rule, to cure any ambiguity, inconsistency, formal defect, or omission, and to address any change in circumstances arising from a change in legal requirements, change in law, or change in the identity, nature, or status of the County. Any amendment or waiver will not be effective unless the Continuing Disclosure Agreement (as amended or taking into account that waiver) would have complied with the requirements of the SEC Rule at the time of the primary offering of the Notes, after taking into account any applicable amendments to or official interpretations of the SEC Rule, as well as any change in circumstances, and until the County has received either:
A. A written opinion of bond counsel or other qualified independent special counsel selected by the County that the amendment or waiver would not materially impair the interests of Holders or beneficial owners of the Notes, or
B. The written consent to the amendment or waiver by the Holders of at least a majority of the principal amount of the Notes then outstanding.
Annual information containing any revised operating data or financial information must explain, in narrative form, the reasons for any amendment or waiver and the impact of the change on the type of operating data or financial information being provided.
(5) Enforcement. The Continuing Disclosure Agreement will be solely for the benefit of the Holders and beneficial owners from time to time of the Notes.
The exclusive remedy for any breach of the Continuing Disclosure Agreement by the County will be limited, to the extent permitted by law, to a right of Holders and beneficial owners to institute and maintain proceedings authorized at law or in equity to obtain the specific performance by the County of its obligations under the Continuing Disclosure Agreement. Any individual Holder or beneficial owner may institute and maintain those proceedings to require the County to provide a pertinent filing if the filing is due and has not been made. Any proceedings to require the County to perform any other obligation under the Continuing Disclosure Agreement (including any proceedings that contest the sufficiency of any filing) may be instituted and maintained only:
A. By a trustee appointed by the Holders and beneficial owners of not less than twenty-five percent (25%) in principal amount of the issue of Notes then outstanding, or
B. By Holders and beneficial owners of not less than ten percent (10%) in principal amount of the issue of Notes then outstanding, in accordance with Section 133.25(B)(4)(b) or (C)(l) of the Ohio Revised Code, as applicable (or any successor provisions).
(6) Appropriation. The performance by the County of the Continuing Disclosure Agreement will be subject to the annual appropriation of any funds that may be necessary to perform it.
(7) Term. The Continuing Disclosure Agreement will remain in effect only for the period that the Notes are outstanding in accordance with their terms and the County remains an obligated person with respect to the Notes within the meaning of the SEC Rule. The obligation of the County to provide the Annual Information, audited financial statements, and notices of the events described above will terminate if and when the County no longer remains an obligated person with regard to the Notes.
(Ord. 2009-139. Adopted 4-13-09.)