HomeMy WebLinkAbout09-461DECEMBER 8, 2009 09 -461 RESOLUTION
(CARRIED 7 -0 LOST LAID OVER WITHDRAWN
PURPOSE: FNAL RESOLUTION REGARDING INDUSTRIAL DEVELOPMENT
REVENUE BOND FINANCING FOR KINGSBURY, INC.
1.01 Under Wisconsin Statutes, Section 66.1103, as amended (the "Act the
Issuer is authorized and empowered to issue revenue bonds to finance eligible costs
of qualified "projects" (as defined in the Act), and to enter into "revenue agreements"
(as defined in the Act) with "eligible participants" (as defined in the Act).
1.02 By a resolution duly adopted on November 10, 2009, entitled "INITIAL
RESOLUTION REGARDING INDUSTRIAL DEVELOPMENT REVENUE BOND
FINANCING FOR KINGSBURY, INC.," the Issuer expressed its intention to issue
industrial development revenue bonds of the Issuer in an amount not to exceed
$3,000,000 (the "Bond to finance a project to be owned by Kingsbury, Inc., a
Delaware corporation, (the "Borrower") consisting of the acquisition and installation of
equipment to be located at the Borrower's existing manufacturing facility located at
455 W. Waukau Avenue in the City of Oshkosh, Wisconsin (collectively, the "Project
to be owned and operated by the Borrower, all of which would contribute to the well-
being of the City of Oshkosh. Notice of adoption of the initial resolution adopted on
November 10, 2009 was published as provided in the Act, and no petition requesting
a referendum upon the question of issuance of the revenue bonds has been filed.
1.03 Pursuant to Wisconsin Statutes, Section 66.1103, as amended, the
Issuer may finance a project which is located entirely within the geographic limits of
the Issuer.
1.04 Drafts of the following documents have been submitted to this City
Council and are ordered filed in the office of the City Clerk:
(a) a Financing Agreement dated "December 2009" by and among
the Issuer, Brown Brothers Harriman Co. (the "Bank and the Borrower
(the "Financing Agreement
(b) the form of the Bond as attached to the Financing Agreement as Exhibit A;
(c) a Non Arbitrage Certificate;
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Section 2 Findings and Determinations
It is hereby found and determined that:
(a) based on representations of the Borrower, the Project constitutes a
qualified "project" authorized by the Act;
(b) a public hearing has been duly held on December 8, 2009 in accordance
with the provisions of Section 147(f) of the Internal Revenue Code of 1986, as
amended, at which residents of the City of Oshkosh, Wisconsin were given an
opportunity to be heard in regard to the proposed issuance of the Bond and the
nature and location of the proposed Project;
(c) the purpose of the Issuer's financing costs of the Project is and the effect
thereof will be to promote the public purposes set forth in the Act;
(d) it is desirable that a series of revenue bonds in the aggregate principal
amount not to exceed $3,000,000 be issued by the Issuer upon the terms set
forth in the Financing Agreement, under the provisions of which the Issuer's
interest in the Financing Agreement (except for certain rights as provided therein)
and the loan repayments will be assigned to the Bank as purchaser of the Bond
as security for the payment of principal of and interest on and premium, if any, on
the Bond;
(e) the loan payments provided for in the Financing Agreement, and the
formula set out for revising those payments under the Financing Agreement as
required under the Act, are sufficient to produce income and revenue to provide
for prompt payment of principal of and interest on and premium, if any, on the
Bond issued under the Financing Agreement when due; the amount necessary in
each year to pay the principal of and interest on the Bond is the sum of the
principal and interest on the Bond due in such year, whether on a stated payment
date, a redemption date, or otherwise; the Financing Agreement provides that
the Borrower shall provide for the maintenance of the Project in good repair,
keeping it properly insured; and
(0 under the provisions of the Act, the Bond shall be the special, limited
obligation of the Issuer and the Bond does not constitute an indebtedness of
the Issuer, within the meaning of any state constitutional or statutory
provision, and does not constitute nor give rise to a charge against the Issuer's
general credit or taxing powers or a pecuniary liability of the Issuer, including but
not limited to: (i) liability for failure to investigate or negligence in the investigation
of the financial position or prospects of an eligible participant, a user of a project
or any other person or for failure to consider, or negligence concerning, the
adequacy of terms of, or collateral security for, the bonds or any related
agreement to protect interests of holders of the Bond; and (ii) any liability in
connection with the issuance or sale of the Bond, for representations made, or
for the performance of the obligation of any person who is a party to a related
transaction or agreement except as specifically provided in the Act, by an
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express provision of the Bond or a related written agreement to which the Issuer
is a party.
Section 3 Approvals and Authorizations
3.01 This resolution shall constitute the approval of the Bond within the
meaning of Section 147 (f) of the Internal Revenue Code of 1986, as amended,
and the Bond is hereby approved. There is hereby approved the issuance by
the Issuer of its tax exempt industrial development revenue bonds (specifically, the
Bond) in an aggregate principal amount not to exceed $3,000,000, for the purpose of
financing the Project.
3.02 The documents listed in Section 1.04 hereof, together with such
subsequent changes as may be requested and approved by bond counsel and Issuer's
counsel, are approved. The City Manager and the City Clerk are hereby authorized and
directed in the name and on behalf of the Issuer to execute such documents listed in
Section 1.04 hereof to which the Issuer is a party, and either one of them or both of
them are authorized and directed to execute such other documents, agreements,
instruments or certificates as are deemed necessary or desirable by the Issuer's
attorney and bond counsel, including an Internal Revenue Service Form 8038.
3.03 The Issuer shall proceed to issue its Industrial Development Revenue Bond
(Kingsbury, Inc. Project), Series 2009, in the aggregate principal amount not to
exceed $3,000,000, in the form and upon the terms set forth in the Financing
Agreement, which terms, including without limitation, interest rates, redemption
provisions and maturity, are for this purpose incorporated in this resolution and
made a part hereof. The City Manager and the City Clerk are authorized and
directed to execute and seal the Bond as prescribed in the Financing Agreement and to
deliver it to the Bank (together with a certified copy of this resolution and any other
documents required by the Financing Agreement).
3.04 The publication in the official newspaper of the Issuer of the notice for
the public hearing referred to in Section 2(b) of this resolution, and such notice of
public hearing as so published, are hereby ratified, which notice of public hearing is
hereby incorporated by reference.
3.05 The Issuer hereby elects to have the provisions of Section
144(a)(4)(A) of the Internal Revenue Code of 1986, as amended, apply to the Bond.
3.06 The City Manager and the City Clerk and other officers of the Issuer
are authorized to prepare and furnish to the Trustee and bond counsel certified copies
of all proceedings and records of the Issuer relating to the Bond, and such other
affidavits and certificates as may be required by the Trustee and bond counsel to
show the facts relating to the legality and marketability of the Bond as such facts
appear from the books and records in the officers' custody and control or as otherwise
known to them.
3.07 The approval hereby given to the various documents referred to in this
resolution includes the approval of such additional details therein as may be necessary
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and appropriate for their completion and such modifications thereto, deletions therefrom
and additions thereto as may be approved by the Issuer's attorney and bond
counsel. The execution of any document by the appropriate officer or officers of the
Issuer herein authorized shall be conclusive evidence of the approval by the Issuer of
such document in accordance with the terms hereof.
3.08 Pursuant to Section 147(f) of the Internal Revenue Code of 1986, as
amended, the Bond is hereby approved.
3.09 The Bond shall be a special, limited obligation of the Issuer,
payable by it solely from revenues and income derived by or for the account of the
Issuer from or for the account of the Borrower pursuant to the Financing Agreement.
As security for the payment of the principal of, premium, if any, and interest on the
Bond, the Issuer shall pledge and assign to the Bank all of its right, title and interest in
and to the trust estate described in the Financing Agreement.
Adopted: December 8, 2009.
CITY OF OSHKOSH, WISCONSIN
Pamela Ubrig, City Clerk
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