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HomeMy WebLinkAbout4873-5485-1991.1 Memorandum of Agreement - 1508 Koeller Oshkosh LLC SignedHB: 4873-5485-1991.1 MEMORANDUM OF AGREEMENT THIS MEMORANDUM OF AGREEMENT (the “Agreement”) is between the CITY OF OSHKOSH, WISCONSIN (the “Issuer”) and 1508 KOELLER OSHKOSH LLC, a Wisconsin limited company, and/or a related entity, and/or a limited liability entity to be formed (collectively, the “Borrower”). 1. Preliminary Statement. Among the matters of mutual inducement which have resulted in this Agreement are the following: (a) The Borrower wishes to finance all or a portion of the costs of the project more completely described in the Issuer’s Resolution No. 2024 – 19 (the “Resolution”), to be located in the City of Oshkosh, Wisconsin and to be owned and operated by the Borrower or its affiliate or its designee (the “Project”). The Borrower requests that the Issuer issue its taxable industrial development revenue bonds in an aggregate principal amount not to exceed $10,750,000 (the “Bonds”), to finance all or a portion of the costs of the Project pursuant to the provisions of the laws of the State of Wisconsin. (b) The Bonds shall be special, limited obligations of the Issuer payable solely and only out of the revenues and receipts and other amounts received by or on behalf of the Issuer, pursuant to a loan agreement, lease agreement or other financing agreement between the Issuer and the Borrower or its affiliate or designee. The Bonds and the interest thereon shall not constitute an indebtedness or a loan of credit of the Issuer, the State of Wisconsin or any political subdivision thereof, within the meaning of any constitutional or statutory provisions, and no owner or holder of any such revenue bonds shall have the right to compel any exercise of the taxing power of the Issuer, the State of Wisconsin or any political subdivision thereof to pay the principal of, premium, if any, or interest on the Bonds. (c) Subject to due compliance with all requirements of law and the provisions set forth in the Initial Resolution, the Issuer, by virtue of such authority as may now or hereafter be conferred, subject to receipt of adequate assurance from the Borrower or its affiliate or designee that there are one or more purchasers for the Bonds, will issue and sell the Bonds in an aggregate principal amount not to exceed a total of $10,750,000, to pay all or a portion of the costs of the Project. 2. Undertakings on the Part of the Issuer. Subject to the conditions above stated, the Issuer hereby agrees as follows: (a) Upon final determination of the details of the financing and provided that, on or before August 1, 2024, the Issuer and the Borrower shall have agreed to mutually acceptable terms for the Bonds and the contracts, agreement and proceedings related thereto, including but not limited to an agreement for the sale of the Bonds, the Issuer will use all reasonable efforts to take the further steps necessary to authorize the issuance and sale of the Bonds in an amount not to exceed an aggregate principal amount of $10,750,000, pursuant to the laws of the State of Wisconsin as then in effect. DocuSign Envelope ID: CC434167-81CE-4735-B516-329243E38498 -2- HB: 4873-5485-1991.1 (b) It will enter into a loan agreement, lease agreement or other financing agreement with the Borrower or its affiliate or designee, whereby the Borrower or its affiliate or designee will pay to, or on behalf of, the Issuer such sums as shall be sufficient to pay when due the principal of and interest and redemption premium, if any, on the Bonds as and when the same shall become due and payable. (c) It will take such further action and adopt such further proceedings as may be required to implement the aforesaid undertakings or as it may deem appropriate in pursuance thereof. 3. Undertakings on the Part of the Borrower. Subject to the conditions above stated, the Borrower hereby agrees as follows: (a) It will use all reasonable efforts to find one or more purchasers for the total amount of Bonds prior to requesting any further approval by the Issuer for such issue. (b) Contemporaneously with the delivery of the Bonds it or its affiliate or designee will enter into a loan agreement, lease agreement or other financing agreement or such other instrument, with the Issuer, under the terms of which the Borrower or its affiliate or designee will obligate itself to pay to or on behalf of the Issuer sums sufficient in the aggregate to pay the principal of and interest and redemption premium, if any, on the Bonds as and when the same shall become due and payable. (c) It, or its affiliate or designee, will pay all fees, costs and expenses related to the issuance of the Bonds and will pay directly to the Issuer the Issuer’s fees and expenses (including, without limitation the fees and expenses of its counsel) in connection with the issuance of the Bonds. (d) It will take such further action and adopt such further proceedings as may be required to implement the aforesaid undertakings or as it may deem appropriate in pursuance thereof. 4. General Provisions. (a) All commitments of the Issuer under paragraph 2 hereof and of the Borrower under paragraph 3 hereof are subject to the conditions that on or before August 1, 2024 (or such other date as shall be mutually satisfactory to the Issuer and the Borrower), the Issuer and the Borrower shall have agreed to mutually acceptable terms and conditions of the loan agreement, lease agreement or other financing agreement or other instrument referred to in paragraphs 2 and 3 above and of the Bonds and other instruments or proceedings relating to the Bonds. (b) If the events set forth in (a) of this paragraph do not take place within the time set forth or any extension thereof and the Bonds in an amount of approximately the amount stated above are not sold within such time, the Borrower agrees that it will reimburse the Issuer for all reasonable and necessary direct out-of-pocket expenses which the Issuer and its special counsel may incur at the request of the Borrower arising from the execution of this Agreement and the DocuSign Envelope ID: CC434167-81CE-4735-B516-329243E38498 -3- HB: 4873-5485-1991.1 performance by the Issuer of its obligations hereunder, and this Agreement shall thereupon terminate. IN WITNESS WHEREOF, the parties hereto have entered into this agreement by their officers thereunto duly authorized as of the 23rd day of January, 2024. CITY OF OSHKOSH, WISCONSIN By _______________________________ Mark A. Rohloff, City Manager [SEAL] ATTEST: ______________________________ Diane Bartlett, City Clerk ______________________________ Lynn A. Lorenson, City Attorney 1508 KOELLER OSHKOSH LLC By _______________________________ Its ____________________________ Manager DocuSign Envelope ID: CC434167-81CE-4735-B516-329243E38498