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HomeMy WebLinkAbout01-482.docDECEMBER 11, 2001 01- 482 RESOLUTION (CARRIED 7-0 LOST LAID OVER WITH DRAWN PURPOSE: INITIATED BY: APPROVE INDUSTRIAL DEVELOPMENT REVENUE BONDS/EVCO PLASTICS CITY ADMINISTRATION AUTHORIZING CITY OF OSHKOSH, WISCONSIN INDUSTRIAL DEVELOPMENT REVENUE BONDS, SERIES 2001 (DON EVANS, INC. PROJECT) WHEREAS, in resolutions adopted August 14, 2001 by the Common Council of the City of Oshkosh, Wisconsin (the "Municipality" or the "Issuer"), the Issuer expressed its intent, and authorized and directed its officers, to work toward the consummation of a financing agreement with Don Evans, Inc., a Wisconsin corporation (the "Borrower"), pursuant to which the Municipality would issue its industrial revenue bonds pursuant to Section 66.1103, Wisconsin Statutes, as amended (the "Act"), in an amount not to exceed $7,500,000 for the purpose of financing costs of, among other things, the acquisition of land and construction and equipping of a facility and related improvements in the Municipality. The Borrower will own and operate the facility and equipment in connection with its business of injection molding manufacturing and related manufacturing and service activities to be located at 450 West Ripple Avenue in the Municipality (which acquisition, construction and equipping of such facility is referred to herein as the "Project"); and WHEREAS, it has been determined that the Borrower will undertake the Project and in reliance upon such resolution, the Borrower has commenced the Project and the payment of related costs, has entered into negotiations for the sale of the Bonds to be so issued and caused to be prepared and herewith submitted to this Common Council forms of the following documents: (a) Loan Agreement between the Issuer and the Borrower pursuant to which the Issuer agrees to loan the proceeds of the Bonds to the Borrower to finance the Project and related costs, together with the Promissory Note containing the Borrower's promise to repay such loan with interest as set forth therein (annexed hereto as Exhibit "A", incorporated herein by reference and referred to herein as the "Loan Agreement" and "Promissory Note", respectively); and (b) Indenture of Trust between the Issuer and Bank One Trust Company, National Association, Milwaukee, Wisconsin as Trustee (annexed hereto as Exhibit "B", incorporated herein by reference, and referred to herein as the "Indenture"); and (c) Bond Purchase Agreement among the Issuer, the Borrower and M&I Marshall & Ilsley Bank (the "Underwriter") (annexed hereto as Exhibit "C", incorporated herein by reference, and referred to as the "Agreement"); and WHEREAS, the issuance of the Bonds by the Issuer and the assignment of the Loan Agreement and its revenues to the Trustee under the Indenture, as herein recited and provided, in the judgment of this Council will serve the intended accomplishments and in all respects conform to the provisions and requirements of the Act; and WHEREAS, the Borrower has made representations to the Issuer (to be supported by appropriate documentation) that the estimated cost of the Project, together with related costs, is an amount which will be at least $5,000,000; and WHEREAS, the Borrower represents and agrees that it will enter into the Loan Agreement with respect to the Project as described above, issue the Promissory Note, pay all expenses with respect thereto, and comply with all the terms and provisions of the Promissory Note and Loan Agreement so that full debt service will be provided in order to meet payments of principal of, premium, if any, and interest on the Bonds and the Borrower agrees that its representations have been expressly relied upon by the Issuer in the adoption of this Resolution; WHEREAS, as security for the repayment of the Bonds, the Borrower will be required to deliver to the Trustee under the Indenture a letter of credit (the "Credit Facility") of M&I Marshall & Ilsley Bank (the "Bank"), against which the Trustee shall be entitled to draw, in accordance with the terms thereof, up to (a) an amount sufficient (i) to pay the aggregate principal amount of the Bonds, or (ii) to pay the purchase price or a portion of the purchase price equal to the aggregate principal amount of Bonds or Beneficial Ownership Interests (as defined by the Indenture) delivered to it for purchase, plus (b) an amount equal to One Hundred Five (105) days' accrued interest on the Bonds or Beneficial Ownership Interests, calculated at the interest rate provided for in the Indenture. NOW, THEREFORE, BE IT RESOLVED BY THE COMMON COUNCIL OF THE CITY OF OSHKOSH, WISCONSIN, THAT: 1. Definitions. The terms "Trustee", "Bonds", "Bondowner", and "Bond Fund" shall have the same meanings as defined in the Indenture. 2. Determination. Based on the representations hereinbefore described, this Council hereby finds and determines that: (a) the estimated cost of the Project as more particularly defined in the Indenture including all costs in connection therewith permitted to be financed with the Bonds under the Act is at least $5,000,000; (b) the loan payments to be made in each year as specified in the Loan Agreement are sufficient to pay the principal of, premium, if any, and interest on the Bonds; and (c) no reserve fund need be established in connection with the retirement of the Bonds or maintenance of the Project. 3. Issue of Series 2001 Bonds. The Issuer shall issue its Bonds in the aggregate principal amount of Five Million Dollars ($5,000,000) for the purpose of financing the Project and other authorized costs. The Bonds shall be sold to the initial purchasers in accordance with the terms and conditions set forth in the Agreement. The Bonds shall be issued pursuant to the Act, shall be designated, dated, in the form, and have the maturities and bear interest as provided in the Indenture. All details pertaining to the Bonds as provided in the Indenture are hereby adopted as and for the details approved by this Issuer. The Bonds shall not be a general obligation or indebtedness of the Issuer within the meaning of any state constitutional provision or statutory limitation and shall not constitute nor give rise to a pecuniary liability of the Issuer or a charge against its general credit or taxing powers, but shall be payable solely from the payments and other revenues that may be available therefor from the Loan Agreement and Promissory Note or in the event of default thereon as otherwise provided herein or in the Indenture and permitted by law, and in no event shall the Bonds or the interest thereon or any other costs or expenses in connection, therewith or with the Project ever be payable from any funds of the Issuer other than the payments and other revenues to be received by the Issuer under the Loan Agreement and Promissory Note. The payments when paid by the Issuer, pursuant to the Loan Agreement and Promissory Note, shall be paid directly to the Trustee for the account of the Issuer so long as the Bonds shall be outstanding and unpaid. The Bonds shall be executed on behalf of the Issuer by its City Manager and City Clerk or their authorized deputies in their absence, shall have its corporate seal impressed or imprinted thereon and may be in typewritten form. Facsimile signatures may be used as permitted by law. 4. Designation, Denomination, Tenor and Maturity of Bonds Created for Issuance. The Bonds shall be issued in an aggregate principal amount of $5,000,000 and shall be designated: $5,000,000 CITY OF OSHKOSH, WISCONSIN INDUSTRIAL DEVELOPMENT REVENUE BONDS, SERIES 2001 (DON EVANS, INC. PROJECT) 5. Approval and Execution of Documents. Subject to such changes or revisions therein as Quarles & Brady LLP as Bond Counsel ("Bond Counsel") and Counsel for the Issuer may approve or require, the Indenture, Promissory Note, Loan Agreement, and Agreement, in substantially their respective forms presented to this meeting and attached hereto, are hereby approved. The City Manager and City Clerk or any of their authorized deputies if necessary, are authorized on behalf of the Issuer to execute and deliver the Indenture, Loan Agreement, Promissory Note and Agreement in substantially the respective forms attached hereto, with any changes in the execution copies being deemed approved by their respective signatures. Said City Manager and City Clerk and their authorized deputies and other officials of the Issuer are hereby authorized to prepare or to have prepared and to execute, file and deliver, as appropriate, all such documents, financing statements, opinions, certificates, affidavits, and closing or post-closing instruments as may be required by this resolution or deemed necessary by said officials or by Bond Counsel. 6. Appointment of Trustee; Funds; Investment Directions. Bank One Trust Company, National Association, is hereby designated as Trustee under the Indenture. The Trustee shall establish the Issuance Expense Fund, Construction Fund, Surplus Construction Fund, Bond Fund, Redemption Fund and any other funds or accounts set forth in the Indenture. Facility. Additional Security. The Bonds will be further secured by the Credit 8. Certain Provisions of the Loan Aqreement. The Loan Agreement provides, inter alia, that: (a) The maintenance and repair costs of the Project, taxes in connection therewith, and other charges and insurance with respect to the Project will be taken out, assumed and paid by the Borrower. The Issuer has no obligation with respect thereto. The proceeds of any recovery under the foregoing insurance policies shall be used and disposed of in the manner provided in the Loan Agreement and the Indenture. (b) The Borrower shall make payments pursuant to the Promissory Note and Loan Agreement in the amounts sufficient for payment when due of the principal of, premium, if any, and interest on the Bonds. 9. Covenants Bindinq Upon Issuer. All covenants, stipulations, obligations and agreements of the Issuer contained in this resolution and in the Bonds, the Loan Agreement, the Indenture, and the Agreement shall be deemed to be the covenants, stipulations, obligations and agreements of the Issuer to the full extent authorized or permitted by law, and such covenants, stipulations, obligations and agreements shall be binding upon the Issuer and its successors from time to time and upon any body to which any powers or duties affecting such covenants, stipulations, obligations and agreements shall be transferred by or in accordance with law. Except as otherwise provided in this resolution, all rights, powers and privileges conferred and duties and liabilities imposed upon the Issuer or the officers thereof by the provisions of this resolution, the Bonds, the Loan Agreement, the Indenture or Agreement shall be exercised or performed by the Issuer or by such officers, board or body as may be required by law to exercise such powers and to perform such duties. No covenant, stipulation, obligation or agreement herein contained or contained in the Bonds, the Loan Agreement, the Indenture or the Agreement shall be deemed to be a covenant, stipulation, obligation or agreement of any officer, agent or employee of the Issuer or of this Common Council in his or her individual capacity and neither the members of this Common Council nor any officer executing the Bonds nor any other officer or employee of the Issuer shall be liable personally on the Bonds or be subject to any personal liability or accountability for any act or omission related to the authorization or issuance thereof. 10. Persons Responsible for Issuinq the Bonds. The City Manager, City Clerk and their authorized deputies are hereby designated as the officers responsible for issuing the Bonds within the meaning of the Income Tax Regulations for the Internal Revenue Code of 1986, as amended. 11. Statement of Election. The Municipality hereby elects to issue the Bonds in an aggregate principal amount exceeding $1,000,000 but not exceeding $10,000,000 as provided in Section 144 of the Internal Revenue Code, as amended. 12. Approval. This Resolution is our approval as required by Section 147(f) of the Internal Revenue Code of 1986, as amended, and the regulations thereunder. This Resolution was adopted after a public hearing was held on November 27, 2001 pursuant to reasonable public notice. The Project and the location of the Project, maximum aggregate face amount of the Bonds and the initial owner, operator or manager of the Project will be as described in this Resolution. (SEAL) Approved December 11, 2001 Mayor Adopted December 11, 2001 City Clerk