HomeMy WebLinkAbout04-258.doc
The City Council of the City of Oshkosh, Winnebago County, Wisconsin, met in regular,
open, public session at its regular meeting place on July 27, 2004, at 6:00 o'clock P.M., with the
following City Council members present:
Shirley Mattox
Paul Esslinger
William Castle Jr.
Frank Tower
Burk Tower
Mark Harris
Brian Poeschl
and the following City Council members absent:
none
*
*
*
(Other Business)
Thereupon, the following resolution was introduced by Mayor Harris and, pursuant to
motion made by City Council member Esslinger, and seconded by City Council member F.
Tower, was adopted by the following vote:
AYE: Mattox
Castle
B. Tower
Poeschl
Esslinger
F. Tower
Harris
NAY: none
ABSENT OR NOT VOTING: none
04-258
2084044
SECTION
Section 1.
Section 2.
Section 3.
Section 4.
Section 5.
Section 6.
Section 7.
Section 8.
Section 9.
Section 10.
Section 11.
Section 12.
Section 13.
Section 14.
Section 15.
Section 16.
Section 17.
Section 18.
Section 19.
Section 20.
Section 21.
Section 22.
Section 23.
Section 24.
Section 25.
TABLE OF CONTENTS
HEADING
PAGE
Definitions................................................................................................ 3
Determinations......................................................................................... 6
Purpose and Terms of Series 2004 Bonds; Mandatory
Redemption; Covenants ...................................................................... 7
Book-Entry...............................................................................................8
Interest; Payment Provisions.....................................................................8
Prior Redemption of Series 2004 Bonds ...................................................9
Redemption Procedure .............................................................................9
Execution; Authentication...................................................................... 14
Registration of Series 2004 Bonds; Persons Treated as
Owners .............................................................................................14
Bonds Payable Solely from Revenues.....................................................16
Form of Series 2004 Bonds.....................................................................16
Creation of Funds and Accounts .............................................................23
Application of Revenue ..........................................................................26
Covenants Regarding Operation of the Utility.........................................30
Parity Bonds...........................................................................................35
Equality of Lien................................................ ......................................36
Modification of Resolution..................................................................... 36
Sale of Series 2004 Bonds ......................................................................38
Disposition of Series 2004 Bond Proceeds; Investment;
Arbitrage; Registered Form...............................................................39
Resolution a Contract; Remedies of Owners of Bonds ............................39
List of Bondholders ................................................................................40
Duties of Bond Registrar ........................................................................40
Defeasance .............................................................................................41
Severability of Invalid Provisions ...........................................................42
Conflicting Resolutions Superceded....................................................... 42
RESOLUTION No. 04-258
A RESOLUTION providing for the issuance and sale of Taxable
Oshkosh Centre Utility Refunding Revenue Bonds, Series 2004, of
the City of Oshkosh, Winnebago County, Wisconsin, providing for
the payment of said revenue bonds and other details, providing
covenants with respect thereto and related matters.
WHEREAS, the City of Oshkosh, Winnebago County, Wisconsin (the "Municipality") in
March 1982, established Tax Increment District Number 4 for the purpose of redeveloping a
specific area of the Municipality and providing for the construction therein by private parties of a
hotel and the construction by the Municipality of a convention center known as the "Oshkosh
Centre," together with ancillary parking facilities of both a surface configuration and parking
ramp configuration; and
WHEREAS, pursuant to the Constitution and the laws of the State of Wisconsin, and
particularly Section 66.0621, Wisconsin Statutes, as supplemented and amended, Wisconsin
cities conducting a revenue producing facility or enterprise are permitted to issue revenue bonds
to finance the purchase, acquisition, construction, extension, addition, improvement, conduct,
control, operation and management of such a revenue producing facility or enterprise having a
maturity not in excess of forty (40) years; and
WHEREAS, pursuant to the Constitution and the laws of the State of Wisconsin, and
particularly Section 66.0621, Wisconsin Statutes, as supplemented and amended, Wisconsin
cities are permitted to issue revenue bonds for the purpose of refunding revenue bonds issued
with respect to such a revenue producing facility or enterprise; and
WHEREAS, Section 66.0621(1)(b), Wisconsin Statutes, as supplemented and amended,
provides that a "public utility" means any revenue producing facility or enterprise owned by a
municipality and operated for public purpose or undertaken by a municipality, as defined in
Section 67.04(1)(b), Wisconsin Statutes, as supplemented and amended; and
WHEREAS, the Oshkosh Centre constitutes a revenue producing facility or enterprise; and
WHEREAS, the Oshkosh Centre is used by the general public in connection with programs
undertaken at the Oshkosh Centre; and
WHEREAS, the Oshkosh Centre is a revenue producing facility or enterprise which attracts
people to the Municipality, and cause hotels and motels within the Municipality to have higher
occupancy than would be the case without the existence of the Oshkosh Centre; and
WHEREAS, pursuant to Section 66.0615, Wisconsin Statutes, as supplemented and
amended, the governing body of the Municipality has enacted Ordinance No. 8-1A imposing a
tax (the "HotellMotel Tax") on the privilege of furnishing, at retail, rooms or lodging to
transients by hotel keepers, motel operators and other persons furnishing accommodations
available to the public; and
WHEREAS, the Municipality may use the receipts from the imposition and collection of
the HotellMotel Tax for any lawful municipal purpose, subject to certain adjustments required by
law; and
WHEREAS, it is considered desirable to apply the proceeds of the HotellMotel Tax
(subject to certain adjustments required by law) to the payment of obligations issued in respect of
the Oshkosh Centre, together with other revenues received with respect thereto; and
WHEREAS, pursuant to the Constitution and the laws of the State of Wisconsin,
particularly Section 66.0621 (previously cited as Section 66.066), Wisconsin Statutes, as
supplemented and amended, the Municipality has previously issued $4,750,000 aggregate
principal amount of its Oshkosh Centre Utility Revenue Bonds, Series 1992, which are currently
outstanding in the aggregate principal amount of $2,015,000 (the "Prior Bonds"), for the
purpose of financing or refinancing of the Oshkosh Centre; and
WHEREAS, pursuant to the Constitution and the laws of the State of Wisconsin, and
particularly Section 66.0621, Wisconsin Statutes, as supplemented and amended, the
Municipality has now determined that it is necessary and desirable to issue its revenue bonds to
refund the Prior Bonds; and
WHEREAS, after providing for the principal of, premium, if any, and interest on the Prior
Bonds, no other bonds or obligations will be outstanding and secured by a pledge of the
Revenues (as hereinafter defined); and
Now, THEREFORE, BE IT RESOLVED by the City Council of the City of Oshkosh,
Winnebago County, Wisconsin, as follows:
Section 1.
Definitions. In addition to those terms defined in the preamble hereto and
in the body of this Resolution, the following terms shall have the following meanings in this
Resolution, unless the text expressly or by necessary implication requires otherwise:
(a)
"Bond" or "Bonds" shall mean one or more of the Series 2004 Bonds and
anyone or more of the Parity Bonds;
(b)
"Bond Register" shall mean the books of the Municipality kept by the Bond
Registrar to evidence the registration and transfer of the Series 2004 Bonds.
(c)
"Bond Registrar" shall mean US. Bank National Association, Milwaukee,
Wisconsin, or a successor designated as Bond Registrar hereunder, the same being the
fiscal agent of the Municipality and paying agent for the Series 2004 Bonds.
(d)
"Business Day" shall mean any day which is not a Saturday, a Sunday or a
day on which: (i) banks in the State of Wisconsin are authorized by law or executive
order to be closed, (ii) the Federal Reserved System is closed, (iii) the designated office
of the Bond Registrar or the Paying Agent are authorized by law or executive order to be
closed, or (iv) the offices of the Municipality are closed for the purpose of conducting the
business of the Municipality.
(e)
"Construction Fund" shall mean the fund into which the proceeds of any
Parity Bonds issued to purchase, acquire, construct, extend, add to, improve, conduct,
control, operate or manage the Utility shall be deposited, as created in the resolution
authorizing the issuance of such Parity Bonds.
(f)
"Debt Service Reserve Requirement" shall mean an amount equal to the
Maximum Annual Debt Service payable on the Bonds in any Fiscal Year.
(g)
"Fiscal Year" shall mean the twelve (12) month period beginning on
January 1 of each year and ending on December 31 of the same year.
(h)
"HotellMotel Tax" means the tax imposed by Ordinance No. 8-1-A adopted
by the City Council of the City on the privilege of furnishing, at retail, rooms or lodging
to transients by hotel keepers, motel operators and other persons furnishing
accommodations available to the public, pursuant to Section 66.0615, Wisconsin Statutes,
as supplemented and amended.
(i)
"Maximum Annual Debt Service" shall mean, at any time, the maximum
amount required to be deposited in the then current or any succeeding Fiscal Year into
the Interest and Principal Account for the payment of the principal of and interest on the
Bonds, as provided in this Resolution;
G)
"Municipality" shall mean the City of Oshkosh, Winnebago County,
Wisconsin, and any successor to the duties or functions of the Municipality;
(k)
"Net Revenues" shall mean the Revenues after deduction of the Operation
and Maintenance Expenses.
(I)
"Operation and Maintenance Expenses" shall mean salaries, wages, cost of
material and supplies, including routine repairs and renewals, management fees paid to
third parties, insurance and such other reasonable current expenses as shall be determined
in accordance with generally accepted accounting principles, but excluding the costs of
depreciable capital equipment, capital improvements, depreciation, debt service, debt
service reserves (including repayments with respect thereto), special assessments or
payments of or in lieu of property taxes.
(m)
"Original Purchaser" shall mean the purchaser or purchasers of the Series
2004 Bonds from the Municipality pursuant to Section 18 of this Resolution.
(n)
"Parity Bonds" shall mean Bonds payable from the Revenues of the Utility,
other than the Series 2004 Bonds, issued on a parity with the Series 2004 Bonds pursuant
to the restrictive provisions of Section 15 of this Resolution.
(0)
"Paying Agent" shall mean US. Bank National Association, Milwaukee,
Wisconsin, and its successors or assigns.
(p)
"Prior Bonds" shall mean the $4,750,000 aggregate principal amount of
Oshkosh Centre Utility Revenue Bonds, Series 1992 of the Issuer, currently outstanding
in the aggregate principal amount of $2,015,000.
(q)
"Prior Paying Agent" shall mean US. Bank National Association (as
successor in interest to Firstar Trust Company), as paying agent with respect to the Prior
Bonds.
(r)
"Registered Owner" or "owner" or "holder" shall mean the person, firm,
corporation, trust or partnership in the name of which a Bond is registered on the Bond
Register of the Municipality.
(s)
"Resolution" shall mean this resolution authorizing the Issuance of the
Series 2004 Bonds and providing for the issuance of Parity Bonds.
(t)
"Revenues" shall mean:
(i) all rates, fees, charges and other income,
including interest income, received by the Utility from all sources, but expressly
excluding income from the sale of property of the Utility (except as otherwise provided
herein), collections of insurance awards or condemnation proceeds, special assessments
and other contributions in aid of construction, if any; (ii) all Hotel/Motel Tax receipts
(subject to certain adjustments required by law); and (iii) all other revenues and receipts
pledged to the payment of the principal of, premium, if any, and interest on the Bonds by
subsequent ordinance or resolution adopted by the City Council of the Municipality.
(u)
"Series 2004 Bonds" means the $2,065,000 aggregate principal amount of
Taxable Oshkosh Centre Utility Refunding Revenue Bonds, Series 2004 of the
Municipality, authorized to be issued by this Resolution.
(v)
"Utility" or "Oshkosh Centre Utility" shall mean the Oshkosh Centre of the
Municipality, except as otherwise herein provided, including all real and personal
property of every nature now or hereafter owned by the Municipality with respect to the
Oshkosh Centre, including all improvements thereto and extensions thereof, located
within or outside of the Municipality, while any of the Bonds remain outstanding,
including all appurtenances, contracts, leases, franchises and other intangibles.
Section 2.
Determinations.
(a) The Utility is hereby determined to be a "public
utility" for purposes of issuing revenue bonds pursuant to, and shall be operated in accordance
with the provisions of, Section 66.0621, Wisconsin Statutes, as supplemented and amended, and
this Resolution.
(b)
All Revenues are hereby determined to be "revenues" of the Utility while any of the
Bonds remain outstanding.
(c)
It is appropriate for the purpose of refunding the Prior Bonds to issue the
Series 2004 Bonds with respect to the Utility.
(d)
The Revenues are hereby pledged for the purpose of paying the principal of,
premium, if any, and interest on the Bonds, operating and maintaining the Utility and funding the
other funds and accounts established under this Resolution.
(e)
The schedule of maturities of the Series 2004 Bonds set out below is such that the
Bonds mature in a fashion attractive to potential investors and in accordance with prudent utility
system management.
(f)
The aggregate principal amount of the Series 2004 Bonds, which shall encompass
sums sufficient to provide for the costs hereinbelow mentioned, is necessary to refund the Prior
Bonds and to pay the costs of issuance of the Series 2004 Bonds.
Section 3.
Purpose and Terms of Series 2004 Bonds; Mandatory Redemption;
Covenants. It is hereby determined that for the purpose of paying the cost of refunding the Prior
Bonds, and paying the legal, fiscal, accounting, printing and other expenses in connection with
the issuance of the Series 2004 Bonds, it is necessary and desirable that the fully registered
Series 2004 Bonds of the Municipality in the aggregate principal amount of $2,065,000 shall be
issued. The Series 2004 Bonds shall be designated "Taxable Oshkosh Centre Utility Refunding
Revenue Bonds, Series 2004, " shall be dated the date of issuance thereof, and shall also bear the
date of authentication thereof by the Bond Registrar, shall be issued in fully registered form,
shall be issued in denominations of $5,000 or any integral multiple thereof (but no single Series
2004 Bond shall represent principal maturing on more than one date), and shall be lettered Rand
numbered consecutively from 1 and upward. The Series 2004 Bonds shall mature on January 1
of each of the years, except as the provisions hereinafter set forth with respect to redemption
prior to maturity may become applicable, and shall bear interest at the rates per annum, as
follows:
YEAR
AMOUNT
INTEREST
RATE
2005
2006
2007
2008
2009
2010
2011
$310,000
265,000
275,000
285,000
295,000
310,000
325,000
2.40%
3.10
3.70
4.20
4.60
5.00
5.20
Section 4.
Book-Entry. The Municipality and/or the Bond Registrar may enter into an
agreement with a securities depository registered under Section 17 A of the Securities Exchange
Act of 1934, as amended, including without limitation The Depository Trust Company, which is
the record owner of the Bonds, to establish procedures with respect to the Series 2004 Bonds
owned by such depository. Such agreement may impose additional requirements on the Bond
Registrar with respect to the Series 2004 Bonds.
Section 5.
Interest; Payment Provisions. The Series 2004 Bonds shall bear interest
from the later of their dated date or from the most recent interest payment date to which interest
has been paid or duly provided for, at the above stated rates per annum, calculated on the basis of
a 360-day year of twelve 30-day months, and shall be payable on January 1, 2005, and
semiannually thereafter on January 1 and July 1 of each year. Interest on each Series 2004 Bond
shall be paid on the due date by check or draft of the Paying Agent in lawful money of the
United States of America to the registered owner in whose name such Series 2004 Bond is
registered at the close of business on the fifteenth (15th) day of the calendar month immediately
preceding the interest payment date (the "Record Date "). The principal of the Series 2004
Bonds shall be payable in lawful money of the United States of America at the designated office
of the Paying Agent in Milwaukee, Wisconsin, upon presentation and surrender of the Series
2004 Bond. Notwithstanding the foregoing, the principal of and premium, if any, and interest on
any Series 2004 Bond shall be payable by wire transfer in immediately available funds to such
wire transfer address within the continental United States of America as shall be requested by
any owner of the Series 2004 Bonds in an aggregate principal amount of at least $1,000,000, if
such owner shall have requested payment by such method in writing, and shall have provided the
Paying Agent with an account number and other necessary information for such purpose by the
applicable Record Date; provided, that the payment of the principal of and premium, if any, on
each Series 2004 Bond shall be made only upon presentation and surrender of such Series 2004
Bond at the designated office of the Paying Agent in Milwaukee, Wisconsin.
Section 6.
Prior Redemption of Series 2004 Bonds. The Series 2004 Bonds coming
due on and after January 1, 2010, shall be subject to redemption prior to maturity at the option of
the Municipality, from any available funds, in whole or in part, on January 1, 2009, and on any
date thereafter, and if in part in such order as the Municipality may determine and, if less than a
single maturity is redeemed, in integral multiples of $5,000, selected by lot by the Bond
Registrar as hereinafter provided, at a redemption price of 100% of the principal amount thereof
being redeemed, plus accrued interest to the date fixed for redemption.
The Series 2004 Bonds shall also be subject to extraordinary optional redemption by the
Municipality, from the proceeds of the sale of the Utility, together with all other Bonds then
outstanding, as a whole, on any date, at a redemption price equal to 100% of the principal
amount thereof being redeemed, plus accrued interest to the date fixed for redemption.
Section 7.
Redemption Procedure. For redemptions at the option of the Municipality,
the Municipality shall, at least forty-five (45) days prior to the date fixed for redemption (unless
a shorter time period shall be satisfactory to the Bond Registrar), notify the Bond Registrar of
such date fixed for redemption and of the principal amount of the Series 2004 Bonds to be
redeemed. For purposes of any redemption of less than all of the Series 2004 Bonds of a single
maturity, if the Series 2004 Bonds are not held by a single registered owner, the particular Series
2004 Bonds or portions of Series 2004 Bonds to be redeemed shall be selected by such method
as the Bond Registrar shall deem fair and appropriate, and which shall provide for the selection
for redemption of Series 2004 Bonds or portions thereof in principal amounts of $5,000 and
integral multiples thereof.
The Bond Registrar shall promptly notify the Municipality in writing of the Series 2004
Bonds or portions of Series 2004 Bonds selected for redemption and, in the case of any Series
2004 Bond selected for partial redemption, the principal amount thereof to be redeemed.
Unless waived by the registered owner of Series 2004 Bonds to be redeemed, official
notice of any such redemption shall be given by the Bond Registrar on behalf of the Municipality
by mailing the redemption notice by first class mail not less than thirty (30) days prior to the date
fixed for redemption to each registered owner of the Series 2004 Bond or Series 2004 Bonds to
be redeemed at the address shown on the Bond Register or at such other address as is furnished
in writing by such registered owner to the Bond Registrar. Failure to give such notice by mailing
to any owner of any Series 2004 Bond, or any defect therein, shall not affect the validity of any
proceedings for the redemption of any other Series 2004 Bonds.
All official notices of redemption shall include the name of the Series 2004 Bonds to be
redeemed and include at least the information as follows:
(1)
(2)
the dated fixed for redemption;
the redemption price;
(3)
if less than all of the Series 2004 Bonds of a single maturity are to be
redeemed, the identification, including CUSIP numbers (and, in the case of partial
redemption of any Series 2004 Bonds, the respective principal amounts) of the Series
2004 Bonds to be redeemed;
(4)
a statement that on the date fixed for redemption the redemption price will
become due and payable upon each such Series 2004 Bond or portion thereof called for
redemption and that interest thereon shall cease to accrue from and after said date; and
(5)
the place where such Series 2004 Bonds are to be surrendered for payment
of the redemption price, which place of payment shall be the principal corporate trust
office of the Bond Registrar.
Prior to any dated fixed for redemption, the Municipality shall have on deposit with the
Bond Registrar an amount of money sufficient to pay the redemption price of all the Series 2004
Bonds or portions of Series 2004 Bonds which are to be redeemed on that date. With respect to
an optional redemption of any Series 2004 Bonds, unless moneys sufficient to pay the principal
of and interest on the Series 2004 Bonds to be redeemed shall have been received by the Paying
Agent prior to the giving of such notice of redemption, such notice may, at the option of the
Municipality, state that said redemption shall be conditional upon the receipt of such moneys by
the Registrar on or prior to the date fixed for redemption. If such moneys are not received, such
notice shall be of no force and effect, the Municipality shall not redeem such Series 2004 Bonds
and the Bond Registrar shall give notice, in the same manner in which the notice of redemption
was given, that such moneys were not so received and that such Series 2004 Bonds will not be
redeemed.
Notice of redemption having been given as aforesaid, the Series 2004 Bonds or portions
of Series 2004 Bonds so to be redeemed shall, on the date fixed for redemption, become due and
payable at the redemption price therein specified, and from and after such date (unless the
Municipality shall default in the payment of the redemption price), such Series 2004 Bonds or
portions of Series 2004 Bonds shall cease to bear interest. Neither the failure to mail such
redemption notice, nor any defect in any notice so mailed, to any particular registered owner,
shall affect the sufficiency of such notice with respect to the other Series 2004 Bonds to be
redeemed. Notice having been properly given, failure of a registered owner to receive such
notice shall not be deemed to invalidate, limit or delay the effect of the notice or redemption
action described in the notice. Such notice may be waived in writing by the registered owner
entitled to receive such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by registered owners shall be filed with the Bond
Registrar, but such filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
Upon surrender of such Series 2004 Bonds for redemption in accordance with said notice,
such Series 2004 Bonds shall be paid by the Bond Registrar at the redemption price.
The
procedure for the payment of the interest due on or prior to the date fixed for redemption shall be
as herein provided for the payment of interest otherwise due. Upon surrender for any partial
redemption of any Series 2004 Bond, there shall be prepared for the registered owner a new
Series 2004 Bond or Series 2004 Bonds of like tenor, of authorized denominations, of the same
maturity and bearing the same rate of interest in the amount of the unpaid principal. If any
Series 2004 Bond or portion of a Series 2004 Bond called for redemption shall not be so paid
upon surrender thereof for redemption, the principal shall, until paid or duly provided for, bear
interest from the date fixed for redemption at the rate borne by the Series 2004 Bond or portion
of a Series 2004 Bond so called for redemption.
All Series 2004 Bonds which have been
redeemed shall be cancelled and destroyed by the Bond Registrar, and shall not be reissued.
In addition to the foregoing notice, further notice of redemption (the "Additional
Redemption Notice ") shall be given by the Bond Registrar on behalf of the Municipality as set
out below, but no defect in said Additional Redemption Notice nor any failure to give all or any
portion of such Additional Redemption Notice shall in any manner invalidate, limit or delay the
redemption action if notice thereof is given as above prescribed.
Each Additional Redemption Notice given hereunder shall contain the information
required above for an official notice of redemption plus (i) the CUSIP numbers of all Series 2004
Bonds being redeemed; (ii) the date of issue of the Series 2004 Bonds as originally issued;
(iii) the rate of interest borne by each Series 2004 Bond being redeemed; (iv) the maturity date of
each Series 2004 Bond being redeemed; and (v) any other descriptive information needed to
identify accurately the Series 2004 Bonds being redeemed.
Each Additional Redemption Notice shall be sent at least thirty-five (35) days before the
date fixed for redemption by registered or certified mail, postage prepaid, or overnight delivery
service to all registered securities depositories then in the business of holding substantial
amounts of obligations of the types comprising the Series 2004 Bonds (including The Depository
Trust Company of New York, New York) and to at least two (2) national information services,
chosen in the discretion of the Bond Registrar, that disseminate notice of redemption of
obligations such as the Series 2004 Bonds.
Each such further notice may be published one time in a financial newspaper or journal
which regularly carries notices of redemption of other obligations similar to the Series 2004
Bonds, such publication to be made at least thirty (30) days prior to the date fixed for
redemption.
Upon the payment of the redemption price of the Series 2004 Bonds being redeemed,
each check or other transfer of funds issued for such purpose shall bear the CUSIP number
identifying, by issue and maturity, the Series 2004 Bonds being redeemed with the proceeds of
such check or other transfer.
Section 8.
Execution; Authentication. The Series 2004 Bonds shall be executed on
behalf of the Municipality with the manual or facsimile signature of its City Manager and
attested with the manual or facsimile signature of its City Clerk, and shall have impressed or
imprinted thereon the official seal of the Municipality or a facsimile thereof. In case any officer
whose signature shall appear on any Series 2004 Bond shall cease to be such officer before the
delivery of such Series 2004 Bond, such signature shall nevertheless be valid and sufficient for
all purposes, the same as if such officer had remained in office until delivery.
All Series 2004 Bonds shall have thereon a certificate of authentication substantially in
the form hereinafter set forth duly executed by the Bond Registrar as authenticating agent of the
Municipality and showing the date of authentication. No Series 2004 Bond shall be valid or
obligatory for any purpose or be entitled to any security or benefit under this Resolution unless
and until such certificate of authentication shall have been duly executed by the Bond Registrar
by manual signature, and such certificate of authentication upon any such Series 2004 Bond shall
be conclusive evidence that such Series 2004 Bond has been authenticated and delivered under
this Resolution. The certificate of authentication on any Series 2004 Bond shall be deemed to
have been duly executed if signed by an authorized officer of the Bond Registrar, but it shall not
be necessary that the same officer sign the certificate of authentication on all of the Series 2004
Bonds issued under this Resolution.
Section 9.
Registration of Series 2004 Bonds; Persons Treated as Owners.
The
Municipality shall cause the Bond Register for the registration and for the transfer of the Series
2004 Bonds as provided in this Resolution to be kept at the designated office of the Bond
Registrar, which is hereby constituted and appointed the registrar and paying agent of the
Municipality, and the Bond Registrar shall agree to so act. The Municipality is authorized to
prepare, and the Bond Registrar shall keep custody of, multiple Series 2004 Bond blanks
executed by the Municipality for use in the transfer and exchange of the Series 2004 Bonds.
Upon surrender for transfer of any Series 2004 Bond at the designated office of the Bond
Registrar, duly endorsed by, or accompanied by a written instrument or instruments of transfer in
form satisfactory to the Bond Registrar and duly executed by, the Registered Owner or his
attorney duly authorized in writing, the Municipality shall execute and the Bond Registrar shall
authenticate, date and deliver in the name of the transferee or transferees a new fully registered
Series 2004 Bond or Series 2004 Bonds of the same series, maturity and interest rate of
authorized denominations, for a like aggregate principal amount. Any fully registered Series
2004 Bond or Series 2004 Bonds may be exchanged at said office of the Bond Registrar for a
like aggregate principal amount of Series 2004 Bonds of the same series, maturity and interest
rate of other authorized denominations.
The execution by the Municipality of any fully
registered Series 2004 Bond shall constitute full and due authorization of such Series 2004 Bond,
and the Bond Registrar shall thereby be authorized to authenticate, date and deliver such Series
2004 Bond; provided, however, that the aggregate principal amount of outstanding Series 2004
Bonds of each maturity authenticated by the Bond Registrar shall not exceed the authorized
aggregate principal amount of Series 2004 Bonds for such maturity, less previous retirements.
The Bond Registrar may transfer or exchange, but shall not be required to transfer or
exchange, any Series 2004 Bond during the period of fifteen (15) days next preceding any
interest payment date on the Series 2004 Bonds, nor to transfer or exchange any Series 2004
Bond after notice calling such Series 2004 Bond for redemption prior to maturity has been
mailed nor during the period of fifteen (15) days next preceding the mailing of a notice of the
redemption of any Series 2004 Bonds.
The person in whose name any Series 2004 Bond shall be registered shall be deemed and
regarded as the absolute owner thereof for all purposes, and the payment of the principal of,
premium, if any, or interest on any Series 2004 Bond shall be made only to or upon the order of
the registered owner thereof or his legal representative. All such payments shall be valid and
effectual to satisfy and discharge the liability upon such Series 2004 Bond to the extent of the
sum or sums so paid.
No service charge shall be made for any transfer or exchange of the Series 2004 Bonds,
but the Municipality or the Bond Registrar may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any transfer or
exchange of the Series 2004 Bonds, except in the case of the issuance of a Series 2004 Bond or
Series 2004 Bonds for the unredeemed portion of a Series 2004 Bond surrendered for
redemption.
Section 10.
Bonds Payable Solely from Revenues.
The Bonds, together with the
premium, if any, interest thereon, shall be special, limited obligations of the Municipality,
payable only out of Revenues deposited into the Special Redemption Fund hereinafter created,
and shall be a valid claim of the owners thereof only against the Special Redemption Fund and
from the Revenues pledged to the Special Redemption Fund, and sufficient Revenues are hereby
pledged to the Special Redemption Fund, and shall be used for no purpose other than to pay the
principal of, premium, if any, and interest on the Bonds as the same fall due.
Section 11.
Form of Series 2004 Bonds. The Series 2004 Bonds, the certificate of
authentication to be endorsed thereon and the form of assignment are all to be in substantially the
following forms with necessary and appropriate variations, omissions and insertions as permitted
or required by this Resolution:
(Form of Series 2004 Bond - Front Side)
REGISTERED
No.R-
REGISTERED
$
UNITED STATES OF AMERICA
STATE OF WISCONSIN
COUNTY OF WINNEBAGO
CITY OF OSHKOSH
TAXABLE OSHKOSH CENTRE UTILITY REFUNDING REVENUE BOND,
SERIES 2004
See Reverse Side for
Additional Provisions
Interest
Rate:
%
Maturity
Date: January 1, -
Dated
Date: August 18, 2004
CUSIP No.
Registered Owner:
Principal Amount:
KNow ALL MEN BY THESE PRESENTS:
That the City of Oshkosh in the County of
Winnebago and the State of Wisconsin (the "Municipality ") hereby acknowledges itself to owe
and for value received, promises to pay to the Registered Owner identified above, or registered
assigns as hereinafter provided, on the Maturity Date identified above, except as the provisions
hereinafter set forth with respect to redemption prior to maturity become applicable hereto,
solely from the revenues hereinafter identified, the Principal Amount identified above and, from
the same source, to pay interest (computed on the basis of a 360-day year of twelve 30-day
months) on such Principal Amount from the date of this Bond or from the most recent interest
payment date to which interest has been paid, at the Interest Rate per annum identified above,
payable on January 1 and July 1 of each year, commencing on January 1, 2005, until said
Principal Amount is paid or duly provided for.
The principal of this Bond is payable in lawful money of the United States of America
upon presentation of this Bond at the designated office of US. Bank National Association,
Milwaukee, Wisconsin, as bond registrar and paYIng agent (the "Bond Registrar" and the
"Paying Agent"). Payment of the installments of interest hereon shall be made to the Registered
Owner hereof shown on the registration books of the Municipality maintained by the Bond
Registrar at the close of business on the fifteenth (15th) day of the calendar month immediately
preceding the applicable interest payment date, and shall be paid by check or draft of the Paying
Agent mailed to the address of such Registered Owner as it appears on such registration books or
at such other address furnished in writing by such Registered Owner to the Bond Registrar;
provided, however, that the principal of, premium, if any, and interest on this Bond are payable
by wire transfer to any owner of the Series 2004 Bonds (as hereinafter defined) in an aggregate
principal amount of at least $1,000,000, if such owner shall have requested payment by such
method in writing, and shall have provided the Paying Agent with an account number and other
necessary information for such purpose on or before the applicable Record Date.
Reference is hereby made to the further provisions of this Bond set forth on the reverse
hereof and such further provisions shall for all purposes have the same effect as if set forth at this
place.
It is hereby certified, recited and declared that all acts, conditions, and things required to
exist, happen and be performed precedent to and in the issuance of this Bond have existed, have
happened, and have been performed in due form, time and manner as required by law, and that
sufficient of the Revenues has been pledged to and will be set aside into a special fund for the
payment of the principal of, premium, if any, and interest on this Bond.
This Bond shall not be valid or become obligatory for any purpose until the certificate of
authentication hereon shall have been signed by the Bond Registrar.
IN WITNESS WHEREOF the City of Oshkosh, Winnebago County, Wisconsin, by its City
Council, has caused this Bond to be signed by its City Manager with his manual or facsimile
signature, and by its City Clerk with her manual or facsimile signature, and the official seal of
said City to be impressed or imprinted hereon, all as of the Dated Date identified above.
City Manager
[SEAL ]
Attest:
By
City Clerk
Date of Authentication:
CERTIFICATE
OF
AUTHENTICATION
This Bond is one of the Series 2004
Bonds described in the within mentioned
Resolution, and is one of the Taxable
Oshkosh Centre Utility Refunding Revenue
Bonds, Series 2004 of the City of Oshkosh,
Winnebago County, Wisconsin.
u S. BANK NATIONAL ASSOCIATION,
as Bond Registrar
By
Authorized Officer
[F orm of Series 2004 Bond - Reverse Side]
CITY OF OSHKOSH, WINNEBAGO COUNTY, WISCONSIN
TAXABLE OSHKOSH CENTRE UTILITY REFUNDING REVENUE BOND, SERIES 2004
This Bond is one of an authorized issue of Taxable Oshkosh Centre Utility Refunding
Revenue Bonds, Series 2004, aggregating the principal amount of $2,065,000 (the "Series 2004
Bonds"), and has been issued under Section 66.0621, Wisconsin Statutes, as supplemented and
amended (the "Act "), for the purpose of paying a portion of the cost of refunding certain revenue
bonds previously issued by the Municipality for the financing or refinancing of the Oshkosh
Centre, and is payable only from the revenues to be derived from the operation of the Oshkosh
Centre Utility (the "Utility") and certain other sources hereinafter described, which revenues
have been set aside as a special fund for that purpose and identified as the "Special Redemption
Fund" This Bond is issued pursuant to the Act and a resolution adopted by the City Council of
the Municipality on July 27, 2004 (the "Bond Resolution "), is payable solely from the Special
Redemption Fund and does not constitute an indebtedness of the Municipality within the
meaning of any constitutional or statutory limitation or provision. Under the Bond Resolution,
additional bonds may be issued by the Issuer on a parity with the Series 2004 Bonds (the "Parity
Bonds") and, together with the Series 2004 Bonds, the "Bonds ") having a lien on said revenues
equal to the lien with respect to the Series 2004 Bonds, and rank pari passu with the Series 2004
Bonds. Reference is hereby made to the Bond Resolution for a more complete statement of the
revenues from which and conditions under which this Bond is payable, a statement of the
conditions on which obligations may hereafter be issued on a parity with this Bond, the general
covenants and provisions pursuant to which this Bond has been issued, and the manner in which
the Bond Resolution may be modified.
This Bond is transferable by the Registered Owner hereof in person or by his attorney
duly authorized in writing at the designated office of the Bond Registrar in Milwaukee,
Wisconsin, but only in the manner, subject to the limitations and upon payment of the charges
provided in the Bond Resolution, and upon surrender and cancellation of this Bond. Upon such
transfer a new Series 2004 Bond or Series 2004 Bonds of authorized denominations of the same
series, maturity and interest rate, and for the same aggregate principal amount will be issued to
the transferee in exchange for this Bond.
The Series 2004 Bonds of the issue of which this Bond is one are issued in fully
registered form in the denomination of $5,000 each or any integral multiple thereof. This Bond
may be exchanged at the designated office of the Bond Registrar for a like aggregate principal
amount of Series 2004 Bonds of the same series, maturity and interest rate of other authorized
denominations, upon the terms set forth in the Bond Resolution.
The Municipality and the Bond Registrar may deem and treat the Registered Owner
hereof as the absolute owner hereof for the purpose of receiving payment of or on account of the
principal hereof and interest due hereon and for all other purposes, and neither the Municipality
nor the Bond Registrar shall be affected by any notice to the contrary.
The Series 2004 Bonds of the issue of which this Bond is one maturing on and after
January 1, 2010, are subject to redemption prior to maturity at the option of the Municipality,
from any available funds, as a whole or in part, on January 1, 2009, and on any date thereafter,
and if in part in such order of maturity as the Municipality may determine, and if less than an
entire maturity is redeemed, in integral multiples of $5,000, selected by the Bond Registrar, as
provided in the Bond Resolution, in such manner as it shall deem fair and appropriate, at the
redemption price of 100% of the principal amount thereof being redeemed, plus accrued interest
to the date fixed for redemption.
The Series 2004 Bonds are also subject to extraordinary optional redemption by the
Municipality, from the proceeds of the sale of the Utility, together with all other Bonds then
outstanding, as a whole, on any date, at a redemption price equal to 100% of the principal
amount that of being redeemed, plus accrued interest to the date fixed for redemption.
Notice of any intended redemption shall be sent by first class mail, postage prepaid, not
less than thirty (30) days prior to the date fixed for redemption to the registered owner of each
Series 2004 Bond to be redeemed (in whole or in part) at the address shown on the registration
books of the Municipality maintained by the Bond Registrar or at such other address as is
furnished in writing by such registered owner to the Bond Registrar. Such notice of redemption
may be conditional as provided in the Bond Resolution. When so called for redemption, this
Bond, or the portion hereof being so called for redemption, will cease to bear interest on the
specified redemption date, provided funds for redemption are on deposit at the place of payment
on that date, and shall not be deemed to be outstanding.
(FORM OF ASSIGNMENT)
The following abbreviations, when used in the inscription on the face of the within Bond,
shall be construed as though they were written out in full according to applicable laws or
regulations:
TEN COM-
as tenants in common
UNIF GIFT/TRANS MIN ACT-
Custodian
(Cust)
(Minor)
TEN ENT-
as tenants by the entirety
under Uniform Gifts/Transfers
to Minors
JT TEN-
as joint tenants with right of
survivorship and not as
tenants in common
Act
(State)
Additional abbreviations may also be used though not listed above.
FOR VALUE RECEIVED, the undersigned sells, assigns and transfers unto
(Name and Address of Assignee)
the within Bond and does hereby irrevocably constitute and appoint
, or its
successor as Bond Registrar, to transfer said Bond on the books kept for registration thereof with
full power of substitution in the premises.
Dated:
NOTICE:
The signature to this assignment must correspond with the name of the registered
owner as it appears upon the face of the within Bond in every particular, without
alteration or enlargement or any change whatever.
Signature guaranteed:
NOTICE:
Signature(s) must be guaranteed by a member firm of the New York Stock Exchange
or a commercial bank or trust company.
Section 12.
Creation of Funds and Accounts. (a) For the purpose of the allocation and
proper application of the Revenues of the Utility and to secure the payment of the principal of,
premium, if any, and interest on the Bonds, certain funds and accounts of the Utility are hereby
created and shall be used solely for the following respective purposes:
(a)
the Revenue Fund (the "Revenue Fund"), into which the Revenues of the
Utility shall be deposited, as received;
(b)
the Special Redemption Fund (the "Special Redemption Fund") which shall
be divided into two accounts to be known as the "Interest and Principal Account" and
the "Reserve Account":
(i)
the Interest and Principal Account, which shall be considered a
sinking fund, shall be used solely for the purpose of paying the principal of,
premium, if any, and interest on the Bonds at maturity or upon mandatory sinking
fund redemption, if any, in accordance with the provisions of this Resolution.
(ii)
the Reserve Account, which shall be used for the purpose of paying
the principal of, premium, if any, or interest on the Bonds, at maturity or upon
mandatory sinking fund redemption, if any, at any time when there shall be
insufficient money for such purpose in the Interest and Principal Account.
(c)
the Operation and Maintenance Fund (the "Operation and Maintenance
Fund"), which shall be used for the payment of the Operation and Maintenance
Expenses. Balances in the Operation and Maintenance Fund shall also be used whenever
necessary for the payment of the principal of, premium, if any, and interest on the Bonds
at any time when there shall be insufficient money for such purposes in the Special
Redemption Fund.
(d)
the Renewal and Replacement Fund (the "Renewal and Replacement
Fund"), which shall be used in the following manner and order of priority to pay:
(i)
the construction or acquisition of renewals, replacements and
improvements to the Utility, the costs of extraordinary maintenance, necessary
repairs and replacements and expansion for which no other moneys of the Utility
are available in order that the Utility at all times is able to serve the needs of the
Municipality;
(ii)
the principal of, premium, if any, and interest on the Bonds in the
event other legally available moneys of the Utility are insufficient therefor;
(iii)
maintenance of the required balance in the Reserve Account; and
(iv)
extraordinary casualty claims against the Utility;
(v)
the Operation and Maintenance Expenses of the Utility.
(e)
the Surplus Fund ("Surplus Fund") to which all moneys remaining in the
Revenue Fund after the aforesaid monthly requirements have been satisfied may be
deposited. Moneys in the Surplus Fund shall be applied in the following order of priority
for:
(i)
the elimination at any time of any deficiency in the funds and
accounts listed above;
(ii)
the payment of subordinated debt (in which case appropriate sub-
accounts shall be created in the Surplus Fund for the payment of principal,
premium, if any, interest and debt service reserves);
(iii)
payments to the Municipality in lieu of the payment of property taxes;
(iv)
the transfer of additional amounts to any of the accounts listed above;
(v)
solely at the option of the Municipality, the purchase of Bonds in the
open market at a price not exceeding the then applicable redemption price of such
Bonds; and
(vi)
transfer to any other fund or account of the Municipality to be applied
to any lawful corporate purpose.
(b)
Uninvested money in the Revenue Fund and the varIOUS funds and accounts
hereinabove created may be kept as demand deposits with such bank or banks as may be
designated from time to time by the Municipality as public depositories under the laws of the
State of Wisconsin. The Special Redemption Fund shall be deposited in a separate bank account,
but the other funds and accounts herein created may be combined in a single bank account with
the Revenue Fund. All of said deposits shall be secured to the fullest extent required by any
appropriate resolution adopted by the City Council of the Municipality or permitted by the laws
of the State of Wisconsin. Deposits in excess of the amount insured by the Federal Deposit
Insurance Corporation shall be secured by a surety bond written by a solvent surety or by pledge
of direct obligations of the United States of America.
Money in the Revenue Fund, the Special Redemption Fund, the Operation and
Maintenance Fund, the Renewal and Replacement Fund and the Surplus Fund shall be invested,
to the extent permitted by Wisconsin law, only in (i) direct obligations of the United States of
America, (ii) obligations guaranteed as to principal or interest by the United States of America,
(iii) the Wisconsin local government pooled investment fund, or (iv) any other investment
permitted by the laws of the State of Wisconsin. All of such investments shall mature at such
time or times as it is determined that funds will be needed to make the payments and deposits
required by this Resolution or to provide for the current expenses of operating and maintaining
the Utility, but in no event not later than five (5) years from the date of such investment.
All income from investments of money in the Reserve Account shall be retained in the
Reserve Account until the balance on deposit therein is equal to the Debt Service Reserve
Requirement, as hereinafter provided. All income from investments of money in all other funds
and accounts and from investments of the Reserve Account after the balance therein is equal to
the Debt Service Reserve Requirement, shall be deposited in the Revenue Fund. Investment
income earned on the funds and accounts created herein shall be included in the Revenues of the
Utility. Investments in all funds and accounts shall be liquidated at any time when it shall be
necessary to do so to provide money for any of the purposes for which such funds and accounts
were created.
Section 13.
Application of Revenue. From and after the delivery of the Series 2004
Bonds and while any of the Bonds shall be outstanding or until there shall be on deposit in the
Special Redemption Fund, or there has been deposited in an irrevocable trust, an amount
sufficient to provide for the payment of the principal of all such outstanding Bonds, premium, if
any, and interest thereon to maturity or the date fixed for redemption, the Revenues of the Utility
shall be deposited as collected in the Revenue Fund and applied only for the purposes set out in
this Resolution.
Transfers from the Revenue Fund to the various funds and accounts herein created shall
be made in the order of the funds and accounts listed in Section 12 hereof on or before the
twentieth (20th) day of each calendar month or, if the twentieth (20th) day of the calendar month
shall not be a Business Day, then on the next succeeding Business Day, and such transfers shall
be determined with respect to money on deposit in the Revenue Fund as of the last day of the
preceding month.
It is the express intent and determination of the City Council of the Municipality that the
amount of money to be deposited in the Special Redemption Fund shall in all events be sufficient
to pay the interest on the Bonds as the same accrues and to retire the Bonds at maturity or upon
redemption prior to maturity, and to provide the monthly amounts payable into the various
accounts created in this Resolution.
Moneys deposited in the various accounts herein created shall be applied only as follows:
(a)
Special Redemption Fund
(i)
There shall be transferred to the Special Redemption Fund the
amounts necessary to provide for the payment of the interest on and principal of
the Bonds as the same becomes due and to create a Reserve Account as required
by this or any subsequent Resolution. On the date of issuance of the Series 2004
Bonds, the Issuer shall deposit $57,484.03 from available funds in the Interest and
Principal Account. Commencing in August, 2004, and in each calendar month
thereafter, an amount equal to one-sixth (1/6) of the next installment of interest on
the Bonds then outstanding until the full amount of such installments shall be on
deposit in the Interest and Principal Account, plus an amount equal to one-sixth of
the next installment of interest on the Bonds then outstanding, shall be deposited
into the Interest and Principal Account. Commencing in August, 2004, and in
each calendar month thereafter, an amount equal to one-twelfth (1/12) of the
installment of principal of the Bonds coming due by reason of maturity or
mandatory sinking fund redemption on the January 1 next succeeding, shall be
deposited in the Interest and Principal Account until the full amount of such
installments, plus an amount equal to one-twelfth of the immediately following
installment of principal of the Bonds then outstanding shall be on deposit in the
Interest and Principal Account. To the extent that Bonds are to be called pursuant
to mandatory sinking fund payments on January 1 of any year, such payments
shall be considered installments of principal for which moneys in the Special
Redemption Fund shall be applied monthly and annually as herein provided. Five
(5) business days (or such other number of business days as shall be agreed upon
between the Municipality and the Paying Agent) prior to each semi-annual
interest payment date there shall be transferred to the Paying Agent from the
Interest and Principal Account or the Reserve Account an amount sufficient to
pay all principal of, premium, if any, and interest on the Bonds coming due on the
next interest payment date. Amounts transferred to the Paying Agent shall be
invested by the Paying Agent for the account of the Municipality.
(ii)
Upon the delivery of the Series 2004 Bonds there shall be deposited
to the Reserve Account from available revenues of the Municipality the sum of
the Debt Service Reserve Requirement ( or such greater amount as the
Municipality may determine from time to time). In the event the amount on
deposit in the Reserve Account is less than the Debt Service Reserve
Requirement, the next available money in the Revenue Fund shall be used to
make monthly transfers to the Reserve Account equal to at least one-twelfth
(1/12) of the difference between the amount on deposit in the Reserve Account
and the Debt Service Reserve Requirement.
Investments on deposit in the Reserve Account shall be valued at the amortized
cost thereof, exclusive of accrued interest thereon. No moneys shall be withdrawn from
the Reserve Account, except for the purposes of this Section 13 (b), unless the amount on
deposit therein is in excess of the Debt Service Reserve Requirement for the Bonds then
outstanding.
Whenever there is on deposit in the Reserve Account an amount in excess of the
Debt Service Reserve Requirement, the amount of such excess shall be deposited in the
Revenue Fund and used for the purposes thereof, unless such income and earnings are
required to satisfy the Debt Service Reserve Requirement.
(b)
Operation and Maintenance Fund
(i)
There shall be transferred each calendar month, commenCIng m
August, 2004, to the Operation and Maintenance Fund a sum equal to one-twelfth
(1/12) of the amount budgeted or estimated to be the expenses of operating and
maintaining the Utility for the current fiscal year. Any balance of the amount
transferred monthly to the Operation and Maintenance Fund remaining unspent on
the last Business Day of the calendar month and determined not to be needed may
be credited against the amount otherwise required to be deposited to the Operation
and Maintenance Fund on such day.
(ii)
Amounts in the Surplus Fund may be transferred to the Operation and
Maintenance Fund at any time if the amounts therein are insufficient to permit the
payment of the Operation and Maintenance Expenses in the current month.
(iii)
Money in the Operation and Maintenance Fund not immediately
required for current Operations and Maintenance Expenses shall be used to
remedy any deficiency in the Special Redemption Fund.
(c)
Renewal and Replacement Fund
(i)
At or before the beginning of each Fiscal Year, commencing with
Fiscal Year 2005, the Finance Director of the Municipality shall recommend an
amount to be budgeted for the ensuing Fiscal Year as an amount necessary to be
used for the purposes for which the Renewal and Replacement Fund was
established, which budgeted amount will take into account any balances then
remaining in the Renewal and Replacement Fund at the beginning of such Fiscal
Year. Such budgeted amount may increase or differ from year to year.
(ii)
From the Revenue Fund there shall be deposited in the Renewal and
Replacement Fund each month an amount which, together with amounts on
deposit therein will aggregate over the course of such Fiscal Year the amount
budgeted annually, as aforesaid.
(d)
Surplus Fund. Amounts on deposit in the Surplus Fund may be used for the
purposes set forth in Section 12(e) of this Resolution.
Section 14.
Covenants Regarding Operation of the Utility. The Municipality hereby
covenants and agrees with each and every owner of the Bonds, as follows:
(a)
The Municipality will faithfully and punctually perform all duties with reference to
the Utility required by the Constitution and the laws of the State of Wisconsin, and will continue
imposing and collecting the HotellMotel Tax collecting and charging appropriate rates for the
use of the Utility, all in amounts sufficient to provide for the segregation of the Revenues of the
Utility and the application thereof to the respective funds and accounts hereinabove created.
(b)
The Municipality will not sell or in any manner dispose of the Utility, including
without limitation any part thereof or any additions, extensions or improvements that may be
made thereto, until all of the Bonds shall have been paid in full, both principal and interest, or
until provision shall have been made for the payment of the Bonds and the premium, if any, and
the interest thereon in full in accordance with the provisions of Sections 2 and 23 hereof;
provided, however, that the Utility may be transferred as a whole to another municipal agency or
public body, if permitted by Wisconsin law, provided, that the transferee shall covenant to
continue paying all Bonds payable from the Revenues of the Utility as it exists on the date of
such transfer, and provided further, that an independent engineer or independent certified public
accountant or both working together shall demonstrate to the Municipality not less than sixty
(60) days prior to such transfer that the Net Revenues available in the ensuing two Fiscal Years
are estimated to cover Maximum Annual Debt Service not less than 1.25 times in each of such
Fiscal Years.
Notwithstanding the foregoing provision, the Municipality shall have the right to sell or
otherwise dispose of any property of the Utility found by the Municipality not to be necessary or
not to be useful in the operation of the Utility. The proceeds received from the sale, lease or
disposal of said property may be used to purchase Bonds on the open market or by request for
tenders at a price not to exceed the then applicable redemption price, if any, therefore or to
redeem Bonds which are redeemable in advance of maturity and, to the extent not so used, shall
be paid into the Renewal and Replacement Account, but such deposits shall not reduce the
amount otherwise required to be deposited therein.
Notwithstanding the foregoing provisions, the Municipality may sell or otherwise dispose
of the Utility as a whole, provided, that the proceeds of such sale or disposition, together with
any other available moneys, are sufficient to pay the principal of and interest on all of the Bonds
when due or upon extraordinary optional redemption prior to maturity, in which case the
proceeds of such sale shall become Revenues, and shall not be used for any other purpose until
the principal of and interest on all of the Bonds shall have been paid or duly provided for as
aforesaid.
(c)
The Municipality will operate and maintain the Utility in good condition, and will
charge and collect such lawfully established rates and charges for the service rendered by the
Utility, and will impose the HotellMotel Tax up to the maximum permitted limit, if required, so
that the Revenues of the Utility will be sufficient to make the payments into the funds and
accounts created by this Resolution and to provide for the retirement of the Bonds and the
payment of the premium, if any, the interest thereon as the same become due and which shall be
sufficient to produce annual Net Revenues in each Fiscal Year which, in the aggregate, will
amount to 1.25 times Maximum Annual Debt Service, and will promptly take all requisite
actions necessary to fulfill any covenant of this Resolution.
(d)
The Municipality will prepare annual budgets for the Utility taking into account the
rates then in effect and estimates of income based thereon and estimating Operation and
Maintenance Expenses of the Utility for each Fiscal Year. Such budgets will be modified as
needed to reflect rate charges as well as anticipated changes in expenses.
(e)
The Municipality will keep proper books and accounts separate from all other
records of the Municipality relative to the Utility, and will cause such books and accounts to be
audited annually not later than one hundred eighty (180) days after the close of each Fiscal Year
by a recognized independent firm of certified public accountants, and will make available to the
owners of at least ten percent (10%) in aggregate principal amount of the Bonds then
outstanding, the latest balance sheet and the profit and loss statement of the System as certified
by such accountants. A copy of each such audit shall be promptly mailed as soon as available to
the Original Purchaser, and a summary of such audit shall be mailed to any owner of at least ten
percent (10%) in aggregate principal amount of the Bonds then outstanding, requesting the same.
The owner of at least ten percent (10%) in aggregate principal amount of the Bonds then
outstanding shall have at all reasonable times the right to inspect the Utility and the records,
accounts and data relating thereto. Each such audit, in addition to whatever matters may be
thought proper by said accountants to be included therein, shall include the following:
(i)
a statement in detail of the Revenues and expenditures of the Utility for the
Fiscal Year;
(ii)
a statement of the Net Revenues as herein defined for such Fiscal Year;
(iii)
a balance sheet as of the end of such Fiscal Year; and
(iv)
a table indicating the annual principal maturities, semiannual interest
payments and total annual debt service requirements of all Bonds and subordinated debt
outstanding on the last day of each fiscal year.
(f)
The Municipality will carry, for the benefit of the owners of the Bonds, insurance of
a kind and in such amounts as would usually be carried by private companies or other public
bodies engaged in operating a similar utility.
Such insurance policies may have deductible
amounts or self-insurance clauses in commercially reasonable amounts which, at the date hereof,
are determined to be $100,000 per occurrence and $300,000 in the aggregate for any single year.
In addition, the Municipality may elect to self-insure with respect to property damage or liability
for bodily injury or other casualties as permitted by Wisconsin law. All money received for
losses under any of such insurance policies, except public liability, shall be used in repairing the
damage or in replacing the property destroyed, but in the event that the Municipality shall find it
inadvisable to repair such damage or replace such property, and that the operation of the Utility
shall not have been impaired thereby, such money may be used to purchase Bonds on the open
market or by request for tenders at a price not to exceed the next applicable redemption price, if
any, therefore or to redeem Bonds which by their terms are redeemable in advance of maturity
and, to the extent not so used, shall be deposited in the Renewal and Replacement Fund, in which
event such payments shall not reduce the amounts otherwise required to be deposited therein.
(g)
The Municipality will grant no franchise for the operation of another similar Utility
within the Municipality.
(h)
The reasonable cost and value of any use of the Utility by the Municipality, if any,
shall be charged against the Municipality, and shall be by it paid as the use occurs, out of the
current revenues of the Municipality collected or in the process of collection, exclusive of the
revenues derived from the Utility, and out of the tax levy of the Municipality made by it to raise
money to meet its necessary current expenses; provided, that, for purposes of this Resolution,
and subject to annual appropriation, the value of such service to the Municipality shall be
deemed to be the differences, if any, between the Revenues and the amount necessary to pay the
principal of and interest on the Bonds and to replenish any deficiency in the Reserve Account.
Such compensation for such service rendered to the Municipality shall be considered a portion of
the Revenues.
Section 15.
Parity Bonds. The Municipality will issue no other bonds or obligations of
any kind or nature payable from or enjoying a lien on the Revenues or the properties of the
Utility having a priority over the Series 2004 Bonds. Bonds may hereafter be issued on a parity
with the Series 2004 Bonds if all of the following conditions shall be met, but not otherwise:
(i)
The Net Revenues (adjusted as hereinafter provided) of the Utility for the
last completed Fiscal Year must have been at least equal to 1.25 times Maximum Annual
Debt Service (determined at the maximum rate which may be borne by variable rate
bonds) on all Bonds then outstanding and the Parity Bonds then to be issued; provided,
however, that if prior to the authorization of such Parity Bonds the Municipality shall
have adopted and put into effect a revised schedule of fees for use of the Utility or an
increase in the Hotel/Motel Tax rate, then the Net Revenues of the Utility for the last
completed Fiscal Year which, in the written opinion of an independent consulting
engineer or certified public accountant employed for that purpose, would have resulted
from such rates and taxes had they been in effect for such period, may be used in lieu of
the actual Net Revenues for the last completed Fiscal Year.
(ii)
The payments required to be made into the various funds and accounts
provided in Sections 12 and 13 of this Resolution, together with any required balances,
must be certified as current by the Finance Director of the Municipality;
(iii)
The Parity Bonds must be payable as to principal on January 1 of each year
in which principal falls due and as to interest on January 1 and July 1 of each year, and
the rate of interest borne by the Parity Bonds may be fixed or variable;
(iv)
The proceeds of the Parity Bonds must be used solely to refund Bonds or for
purchasing, acquiring, constructing, extending adding to, improving, conducting,
controlling, operating or managing the Utility, in which latter case the Municipality shall
establish, in the resolution authorizing such Parity Bonds, a Construction Fund as a
repository for the proceeds of such Parity Bonds; and
(v)
There shall be on deposit in the Reserve Account the Debt Service Reserve
Requirement on the Bonds then outstanding and the Parity Bonds then being issued.
Section 16.
Equality of Lien. All of the Bonds, regardless of the installment of which
they are a part and regardless of the dates of their issuance or delivery shall be secured equally
by a pledge of the Special Redemption Fund and the Revenues allocated to such fund.
Section 17.
Modification of Resolution. The owners of two-thirds in aggregate principal
amount of the Bonds at any time outstanding (not including in any case any Bonds which may
then be held or owned by or for the account of the Municipality shall have the right from time to
time to consent to and approve the adoption by the City Council of the Municipality of a
resolution or resolutions modifying or amending any of the terms or provisions contained in this
Resolution; provided, however, that this Resolution may not be so modified or amended in such
manner as to:
Bonds;
(a)
(b)
make any change in the maturity of any Bonds;
make any change in the rate of interest borne by any Bonds;
(c)
reduce the amount of the principal or redemption premium payable on any
(d)
modify the terms of payment of the principal of, or interest or premium, if
any, on, any Bonds, or impose any conditions with respect to such payment;
outstanding;
(e)
materially affect the rights of the owners of less than all of such Bonds then
(f)
reduce the percentage of the aggregate principal amount of Bonds, the
consent of the owners of which is required to effect a further modification.
Whenever the Municipality shall propose to amend or modify this Resolution under the
provisions of this Section, it shall cause notice of the proposed amendment or modification to be
filed with the Original Purchaser, the owners of all of the Bonds then outstanding and the Paying
Agent. Such notice shall briefly set forth the nature of the proposed amendment or modification,
and shall state that a copy of the proposed amendatory resolution is on file in the office of the
City Clerk of the Municipality for public inspection.
Whenever at any time within one (1) year from the date of the filing of said notice there
shall be filed with the City Clerk of the Municipality an instrument or instruments executed by
the owners of at least two-thirds in aggregate principal amount of the Bonds then outstanding,
which instrument or instruments shall refer to the proposed amendatory resolution described in
said notice, and shall specifically consent to and approve the adoption thereof, thereupon, but not
otherwise, the City Council of the Municipality may adopt such amendatory resolution and such
resolution shall become effective.
If the owners of at least two-thirds in aggregate principal amount of the Bonds then
outstanding, at the time of the adoption of such amendatory resolution, or the predecessors in
title of such owners, shall have consented to and approved the adoption thereof as herein
provided, no owner of any Bond, whether or not such owner shall have consented to or shall
have revoked any consent as in this Section provided, shall have any right or interest to object to
the adoption of such amendatory resolution or to object to any of the terms or provisions therein
contained or to the operation thereof or to enjoin or restrain the Municipality from taking any
action pursuant to the provisions thereof.
Any consent given by the owner of a Bond pursuant to the provisions of this Section shall
be irrevocable for a period of one (1) year from its date, and shall be conclusive and binding
upon all future owners of the same Bond during such period. Such consent may be revoked at
any time after one (1) year from its date by the owner who gave such consent or by a successor
in title by filing notice of such revocation with the City Clerk of the Municipality, but such
revocation shall not be effective if the owners of two-thirds in aggregate principal amount of the
Bonds then outstanding shall have, prior to the attempted revocation, consented to and approved
the amendatory resolution referred to in such revocation.
The fact and date of the execution of any instrument under the provIsIons of this
Section may be proved by the certificate of any officer in any jurisdiction, who by the laws
thereof is authorized to take acknowledgments of deeds within such jurisdiction, that the person
signing such instrument acknowledged before him the execution thereof, or may be proved by an
affidavit of a witness to such execution sworn to before such officer. The amount and number of
the Bonds held by any person executing such instrument and the date of his owning the same
may be proved by an affidavit by such person or by a certificate executed by any responsible
bank or trust company showing that on the date therein mentioned such person had on deposit
with such bank or trust company the Bonds described in such certificate.
Notwithstanding any other provision of this Resolution, this Resolution may be amended
without the consent of the owners of the Bonds in order to provide for the addition of real or
personal property to the Utility.
Section 18.
Sale of Series 2004 Bonds. The sale of the Series 2004 Bonds to Bankers
Bank of Madison, Wisconsin, the Original Purchaser, at a purchase price of $2,052,093.75, plus
accrued interest to the date of delivery, is hereby confirmed, and the City Manager of the
Municipality is authorized to execute a bond purchase agreement with the Original Purchaser.
Upon preparation of the Series 2004 Bonds in definitive form, the City Treasurer of the
Municipality shall deliver the same to the Bond Registrar for authentication, after which the
Series 2004 Bonds shall be delivered to the Original Purchaser through the facilities of The
Depository Trust Company in exchange for such purchase price.
Section 19.
Disposition of Series 2004 Bond Proceeds; Investment; Arbitrage;
Registered Form. (a) The proceeds from the sale of the Series 2004 Bonds shall be disbursed as
follows, and not otherwise:
(i)
Accrued interest, if any, on the Series 2004 Bonds shall be deposited in the
Interest and Principal Account of the Special Redemption Fund.
(ii)
$2,039347.92 of the principal proceeds from the sale of the Bonds shall be
deposited with the Prior Paying Agent, and applied to the payment in full of the principal
of and the interest on the Prior Bonds on the first possible redemption date after the date
of issuance of the Series 2004 Bonds.
(iii)
The balance the principal proceeds of the Series 2004 Bonds shall be used
by the Municipality to pay the costs of issuance of the Series 2004 Bonds.
(iv)
The principal proceeds from the sale of the Series 2004 Bonds shall be used
only for the purposes aforesaid, and the City Council of the Municipality hereby
covenants and agrees that the portion of said principal proceeds shall be devoted to and
used with due diligence as aforesaid and for the payment of all expenses incurred in
issuing the Series 2004 Bonds, including legal, fiscal, accounting, underwriting,
advertising and printing costs.
Section 20.
Resolution a Contract; Remedies of Owners of Bonds. The provisions of
this Resolution shall constitute a contract between the Municipality and the owner or owners of
the Bonds, and after the issuance of any of the Bonds no change or alteration of any kind in the
provisions of this Resolution may be made until all of said Bonds shall have been paid in full as
to both principal and interest, except as provided in Section 18 hereof, relating to amendments
and modification.
The owners of any of the Bonds shall have the right in addition to all other rights, by
mandamus or other suit or action in any court of competent jurisdiction, to enforce his or their
rights against the Municipality, the City Council thereof, and any and all officers and agents
thereof, including, but without limitation, the right to require the Municipality, its City Council
and any other authorized body to fix and collect rates and charges and to impose Hotel/Motel
Taxes fully adequate to carry out all of the provisions and agreements contained in this
Resolution, and for the appointment of a receiver for the Utility in the event of a default of the
payment of the principal of, premium, if any, or interest on the Bonds.
Section 21.
List of Bondholders. The Bond Registrar shall maintain a list of the names
and addresses of the owners of all Bonds and upon any transfer shall add the name and address
of the new owner and eliminate the name and address of the transferor owner.
Section 22.
Duties of Bond Registrar. The Manager of the Municipality is authorized to
execute and the City Clerk of the Municipality is authorized to attest the Bond Registrar's
standard form of agreement between the Municipality and the Bond Registrar with respect to the
obligations and duties of the Bond Registrar hereunder which shall include the following duties:
(a)
to act as Bond Registrar, authenticating agent, paying agent and transfer
agent as provided herein;
(b)
to maintain a list of the owners of the Bonds as set forth herein and to
furnish such list to the Municipality upon request, but otherwise to keep such list
confidential;
(c)
to give notice of the redemption of Bonds as may be provided in any
resolution authorizing a specific issue of Bonds.
(d)
to cancel and destroy Bonds which have been paid at maturity or upon
earlier redemption or submitted for exchange or transfer;
(e)
to furnish the Municipality at least annually a certificate of destruction with
respect to Bonds cancelled and destroyed; and
(f)
to furnish the Municipality at least annually an audit confirmation of Bonds
paid, Bonds outstanding and payments made with respect to interest on the Bonds.
Section 23.
Defeasance. All Bonds and the interest accrued thereon shall be deemed to
be paid within the meaning of this Section when payment of the principal of and premium, if
any, on such Bonds, plus interest thereon to the due date thereof (whether such due date be by
reason of maturity or upon redemption prior to maturity as provided in this Resolution, or
otherwise), either (i) shall have been made or caused to be made in accordance with the terms of
the Bonds and this Resolution, or (ii) shall have been provided by irrevocably depositing with the
Paying Agent or a trustee or escrow agent, in trust and irrevocably setting aside exclusively for
such payment, (1) moneys sufficient to make such payment, or (2) direct obligations of the
United States of America or other obligations the timely payment of the principal of and interest
on are unconditionally guaranteed by the full faith and credit of the United States of America,
which are not callable prior to their maturity and which mature and bear interest, without
reinvestment, in such amounts and on such dates as will provide sufficient moneys to make such
payment, and all necessary and proper fees, compensation and expenses of the Paying Agent
shall have been paid or the payment thereof provided for. At such time as Bonds shall be
deemed to be paid hereunder, as aforesaid, they shall no longer be secured by or entitled to the
benefits of this Resolution, except for the purposes of any such payment from such moneys or
obligations.
It is expressly provided that fewer than all of the Bonds outstanding may be
defeased at any time or from time to time and that fewer than all of the Bonds of a single
maturity may be defeased.
Section 24.
Severability of Invalid Provisions. If any section, paragraph or provision of
this Resolution shall be held to be invalid or unenforceable for any reason, the invalidity or
unenforceability of such section, paragraph or provision shall not affect any of the remaining
provisions of this Resolution.
Section 25.
Conflicting Resolutions Superceded. All other ordinances, resolutions or
orders, or parts thereof, heretofore enacted, adopted or entered, in conflict with the provisions of
this Resolution shall be and the same are hereby superseded to the extent of such conflict, and
this Resolution shall be in effect from and after its passage.
Adopted: July 27, 2004
Adopted: July 27, 2004
Recorded: July 27, 2004
ATTEST:
/s/ Pamela R. Uhrig
City Clerk
/s/ Mark L. Harris
Mayor
*
*
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(Other Business)
There being no further business it was moved, seconded and unanimously carried that the
City Council adjourn.
/s/ Pamela R. Uhrig
City Clerk
STATE OF WISCONSIN
)
) ss:
)
COUNTY OF OSHKOSH
I, Pamela R. Ubrig, hereby certify that I am the duly qualified and acting City Clerk of
the City of Oshkosh, Winnebago County, Wisconsin, and as such official I further certify that
attached hereto is a copy of excerpts from the minutes of the meeting of the City Council of said
City held on July 27, 2004; that I have compared said copy with the original minute record of
said meeting in my official custody; that said copy is a true, correct and complete transcript from
said original minute record insofar as said original record relates to $2,065,000 aggregate
principal amount of Taxable Oshkosh Centre Utility Refunding Revenue Bonds, Series 2004, of
said City dated the date of issuance.
I further certify that a true and correct statement of every step or proceeding had or taken
to date in connection with the authorization of said Bonds has been recorded by me in a separate
record book pursuant to the provisions of Section 67.05(12), Wisconsin Statutes, as
supplemented and amended.
Wnm" my offici" ,igmtore rnd tlw ,<>I ~7~ 2~
City Clerk
(SEAL)