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HomeMy WebLinkAbout10. 12-416 R E V I S E D AUGUST 28, 2012 12-416 RESOLUTION (CARRIED___6-0_____LOST________LAID OVER________WITHDRAWN________) PURPOSE: FINAL RESOLUTION REGARDING MIDWESTERN DISASTER AREA REVENUE BOND FINANCING FOR OSHKOSH INVESTORS, LLC INITIATED BY: FINANCE DEPARTMENT BE IT RESOLVED by the City Council of the City of Oshkosh, Winnebago County, Wisconsin (the “Issuer”), as follows: Recitals. Section 1 Under Wisconsin Statutes, Section 66.1103, as amended (the “Act”), the 1.01 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). Pursuant to an initial resolution duly adopted on September 27, 2011 (the 1.02 “Initial Resolution”) and an amended initial resolution adopted on April 10, 2012 (the “Amended Initial Resolution”), the Issuer expressed its intention to issue Midwestern disaster area bonds of the Issuer in an amount not to exceed $14,000,000 (the “Bonds”) to finance a projecton behalf of Oshkosh Investors, LLC, a Wisconsin limited liability company (the “Borrower”), consisting offinancingthe (i) acquisition, renovation and rehabilitation of a 176 room full service hotel, restaurant and conference center located at 1 North Main Street in the City of Oshkosh, Wisconsin, (ii) acquisition and installation of nonmovable equipment and (iii) payment of certain professional costs and costs of issuance (collectively, the “Project”). Notices of adoption of the Initial Resolution and Amended Initial Resolution were published as provided in the Act, and no petition requesting a referendum upon the question of issuance of the revenue bonds has been filed. Pursuant to the Act, the Issuer may finance a project which is located 1.03 entirely within the geographic limits of the Issuer. Drafts of the following documents have been submitted to this City Council 1.04 and are ordered filed in the office of the City Clerk:  (a) a Bond Agreement (the “Bond Agreement”), proposed to be entered into among the Issuer, the Borrower, First Business Bank or an affiliate, as paying WHD/8822228.3 agent (the "Paying Agent "), and First Business Bank, as original purchaser (the "Original Purchaser"); (b) a Promissory Note from the Borrower to the Issuer, and assigned to the Paying Agent; and (c) a No Arbitrage Certificate. 1.05 Pursuant to Wisconsin Statutes, Section 66.1103(2)(k)22, the Issuer may finance projects eligible to be financed with qualified Midwestern disaster area bonds under 26 USC 1400N (a), as modified by P.L. 110 -343, title VII, subtitle A, section 702 (d) (intro.) and (1) and it is intended that the Bonds be issued as Midwestern disaster area bonds. Section 2 Findings and Determinations. It is hereby found and determined that: (a) based on representations of the Borrower, the Project constitutes a "project" authorized by the Act; (b) a public hearing has been duly held on August 28, 2012 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 Bonds 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 $7,500,000 be issued by the Issuer upon the terms set forth in the Bond Agreement, under the provisions of which the Issuer's interest in the Bond Agreement (except for certain rights as provided therein) and the loan repayments will be assigned to the Paying Agent as security for the payment of principal of and interest on and premium, if any, on all the Bonds outstanding under the Bond Agreement; (e) the loan payments provided for in the Bond Agreement, and the formula set out for revising those payments under the Bond Agreement as required under the Act, are sufficient to produce income and revenue to provide for the prompt payment of principal of and interest on and premium, if any, on Bonds issued under the Bond Agreement when due; the amount necessary in each year to pay the principal of and interest on the Bonds is the sum of the principal and interest on the Bonds due in such year, whether on a stated payment date, a redemption date, or otherwise; no amount shall be paid into any reserve fund with respect to the Bonds; and the Bond Agreement provides that the Borrower shall provide for the maintenance of the Project in good repair, keeping it properly insured; and (f) under the provisions of the Act, the Bonds shall be special, limited obligations of the Issuer and the Bonds do not constitute an indebtedness of the Issuer, the State of Wisconsin or any political subdivision thereof, within the meaning of any state constitutional provision or statutory limitation, and do not constitute nor give rise to a charge against the general credit or taxing powers or a pecuniary liability of the Issuer, the State of Wisconsin or any political subdivision thereof. Section 3 Approvals and Authorizations; Parameters Resolution; Authentication of Transcript. 3.01 This resolution shall constitute the approval of the Bonds within the meaning of Section 147(f) of the Internal Revenue Code of 1986, as amended, and the Bonds are hereby approved. There is hereby approved the issuance by the Issuer of its Midwestern disaster area bonds (specifically, the Bonds) in an aggregate principal amount not to exceed $7,500,000, for the purpose of financing the Project. 3.02 The Issuer shall proceed to issue its Midwestern Disaster Area Revenue Bonds, Series 2012 (Oshkosh Investors, LLC Project), in the aggregate principal amount not to exceed $7,500,000, in the form and upon the terms set forth in the Bond Agreement, which terms, including without limitation, interest rates, redemption provisions and maturity, are for this purpose incorporated in this resolution by reference and made a part hereof. The terms are hereby approved without further action by the Issuer, subject to the following parameters: (a) the initialinterest rate shall not exceed8.0 %; 2012; (b) the sale and funding of the Bonds shall occur prior to December 31, (c) the final maturity date of the Bonds shall be no later than 30 years after the date of issuance; and (d) the maximum Bond Amount shall not exceed $7,500,000. If the Bonds are sold and issued in conformity with the parameters set forth herein, no further authorization by the Issuer is required, and the City Manager and the City Clerk of the Issuer are authorized and directed to execute, attest and deliver the documents listed in Section 1.04 herein which are hereby approved, together with such subsequent changes as may be requested and approved by bond counsel and the Issuer's attorney, and 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. In the event that the Bonds cannot be sold and issued in conformity with the parameters set forth above, no Bonds may be issued without approval of the Issuer pursuant to a subsequent resolution approving the terms of the Bonds. Subject to the parameters set forth above, the City Manager and the City Clerk of the Issuer are authorized and directed to execute, attest and seal the Bonds as prescribed in the Bond Agreement and to deliver them to the Paying Agent (together with a certified copy of this resolution and any other documents required by the Bond Agreement) for authentication and delivery to the Original Purchaser; provided, however, that, despite the authorization and approval of the Bonds given by the City pursuant to this resolution, and despite the actual issuance of the Bonds at a later date, the City reserves the right to provide all further approvals relating to the affected property and the Project, which are requested of the City, in its sole discretionin the normal course and in the same manner as if such authorization and approval had not been given by the City and the City had not issued the Bonds. 3.03 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. 3.04 The City Manager,City Clerk, Director of Finance /City Treasurer and other officers of the Issuer are authorized to prepare and furnish to the Paying Agent and bond counsel certified copies of all proceedings and records of the Issuer relating to the Bonds, and such other affidavits and certificates as may be required by the Paying Agent and bond counsel to show the facts relating to the legality and marketability of the Bonds as such facts appear from the books and records in the officers' custody and control or as otherwise known to them. 3.05 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 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. • 3.06 First Business Bank or an affiliate shall initially assume and perform the duties of Paying Agent. 3.07 Notice of sale of the Bonds, in the form attached hereto as Exhibit A , shall be published in the official newspaper of the Issuer as a class 1 notice under Chapter 985 of the Wisconsin Statutes. 3.08 The Bonds shall be special limited obligations 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 Bond Agreement. As security for the payment of the principal of, premium, if any, and interest on the Bonds, the Issuer shall pledge and assign to the Paying Agent all of its right, title and interest in and to the trust estate described in the Bond Agreement (except as otherwise provided therein). Passed and adopted at a regular meeting of the City Council of the City of Oshkosh this 28 day of August, 2012. Indicates Revision