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HomeMy WebLinkAbout33991 / 86-159RESOLUTION NO. 159 86 RESOLUTION AUTHORIZING.EXECUTION OF SECOND AMENDMENT TO LOAN AGREEMENT AND THIRD AMENDMENT TO TRUST INDENTURE IN CONNECTION WITH $8,000,000 FLOATING RATE DEMAND INDUSTRIAL DEVELOPIIENT REVENOE BONDS, MORGAN PRODUCTS LTD. ISSUE,<SERIES 1984, OF CITY OF OSHKOSH, WISCONSIN. PREAMBLE WHEREAS, the City of Oshkosh (the "CitY") is organized and existing under and pursuant to the Constitution and the laws of the State of Wisconsin, and is authorized by Wis. Stat. §66.521, as supplemented and amended (the "ACt"), to do, among other things, the following: (a) Issue industrial development revenue bonds in order to assist in financing of industrial facilities located within the boundaries of the Issuer, (b) To enter into revenue agreements with the owner and user of such facilities providing for revenues as defined and determined under the Act sufficient to pay the principal and inter- est on such revenue bonds, (c) To secure such revenue bonds by a pledge and assignment of such revenues and of the rights of the City under the revenue agreement from said owner and user of the industrial facility and to receive other forms of assurances and guarantees from other eligible participants and to assign the same and the rights of the City thereunder to a trustee on behalf of the bond- holders and to enact a bond resolution and enter into the agreements and receive the security contemplated hereunder and to assign the same to a trustee on behalf of the bondholders upon the terms and conditions provided for therein to accomplish the purpose of the Act; and wHEREAS, the Common Council is the elected leqisla- tive body of the City; and WHEREAS, the City, pursuant to the Act ar.d Resolu- tion 1 of the Common Council duly adopted and approved on December 27, 1984, authorized the issuance of $8,000,000 S Floatinq Rate Demand Industrial Development Rev2nue Bonds, Morgan Products Ltd. Issue, Series 1984, of City of Oshkosh (the "BOnds") and a loan of the proceeds thereof to Morgan Products Ltd., a Delaware corporation (the "Company"); and WHEREAS, the Bonds were issued by the City pursuant to and secured as provided in, a Trust Indenture dated as of December 15, 1984, as amended (the "Indenture"), between the City, as Issuer, and National Westminster Bank USA, as Trustee (the "Trustee"), and the proceeds from the sale of the Bonds were loaned to the Company pursuant to a Loan Agreement, dated as of December 15, 1984, as amended (the "Loan Aqreement"), by and between the City and the Company, and used to finance the acquisition, rehabilitation, equipping and installation by the Company of a door and millwork manufacturing facility location in the City of Oshkosh, Wisconsin (the "Project"); and WHEREAS, the Company's obligation to make repay- ments under the Loan Agreement was secured, in part, by a first mortgage on certain real property (the "Property") and a security interest in certain fixtures (the "Fixtures") and personalty owned by the Company and located in Decatur, Illinois; and WHEREAS, the Company proposes to sell the Property and the Fixtures to a third party and to increase the face amount of the Fixed Interest Rate Credit Facility (as defined in the Indenture) as additional collateral to secure the Company's obligations under the Loan Agreement; and WHEREAS, for purposes not inconsistent with the terms of the Indenture, to cure certain ambiguities and correct and supplement certain provisions contained therein which are defective or inconsistent therewith and with certain other provisions contained therein and to make certain amendments consistent with the Company's proposals described above, none of which shail adversely affect the interest of the holder of the Series 1984 Bonds, the City and the Trustee desire to amend and supplement the Indenture in accordance with its terms by the Third Amendment to the Indenture to be effective as of June 30, 1986; and WHEREAS, the City and the Company, for purposes not inconsistent with the Indenture and the Loan Agreement and to make certain amendments consistent with the Company's proposals described above, which shall not adversely affect the interest of the holder of the Bonds, desire to amend and supplement the Loan Agreement in accordance with its terms by the Second Amendment to the Loan Agreement to be effective as of June 30, 1986; ana -28d� WHEREAS, the execution of the Third Amendment to the Indenture and the execution of the Second Amendment to the Loan Agreement by the Citg as herein recited and provided, ir. the judgment of the Common Council will serve the intended purposes and in all resgects conform to the provisions and requirements of the Act, « NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of Oshkosh as follows: ARTICLE I Definitions and Construction Section 1.1 Definitions. All capitalized terms not defined herein shall have the same meanings as defined in the Indenture as amended to the closing date of June 30, 1986, or as soon thereafter as reasonab.ly practicable (the "Closing Date") by and between the City and Trustee and the Loan Agreement, all as on file with the City Clerk on the date hereof. Section 1.2 Construction. (a) Any reference herein to the "City," the "Issuer," the "Common Council," or to any officers, agents or representatives thereof, shall include those which succeed to their functions, duties or responsibilities pursuant to or by operation of law or who are lawfully performing their functions. Any reference to a section or provision of the "Wisconsin Laws" or "Wisconsin Statutes" shall include such section or provision or chapter as from time to time amended, modified, revised, supplemented, or superseded, provided that no such amendment, modification, revisions, supplementation or supersession shall alter the obligation to pay the principal of and premium, if any, on the Bonds in the amount and manner, at the time, and from the sources provided in the Bond proceedings heretofore or herein taken, except as otherwise herein permitted. (b) Unless the context shall otherwise indicate, words importing the singular number shail include the plural number, and vice versa, the masculine includes the feminine, and the terms "hereof," "hereby," "hereto," "hereunder," and similar terms, mean this Resolution. :� �.. ARTICLE II Determinations Section 2.1 Representations and Warranties. The representations and warranties of the Issuer set forth in Section 1.4 of the Loan Agreement, as amended, are true, correct and complete in all material respects on the date hereof and will be true, correct and complete in all material respects as of the Closing Date as if made on the Closing Date. Section 2.2 Authority of City. The Issuer has the power and authority to carry out and consummate the transactions contemplated by the Loan Agreement, as amended to the Closing Date and the Indenture, as amended to the Closing Date. Section 2.3 Bonds Duly Authorized, Executed and Delivered. The Bonds were duly authorized, executed and delivered by the City. Section 2.4 Compliance with Law: No Default. To the best knowledge of the City, the execution and delivery by the City of the Loan Agreement, the Indenture and amendments thereto as heretofore or herein provided and compliance with the provisions thereof and hereof by the City, does not and will not conflict with, or result in the breach of any of the provisions, or constitute a default under, any constitutional provisions, statute, charter, indenture, mortgage, deed of trust or other agreement or instrument to which the City is a party or by which it or its properties is or may be bound. Section 2.5 No Litiqation Pending. There is no litigation pending or, to the knowledge of the City, threatened, against the City, to restrain, enjoin or contest- ing the execution and delivery of the Second Amendment to the Loan Agreement or the Third Amendment to the Inden- ture. ARTICLE III Authorizations Section 3.1 Authorization of Execution and Delivery of Third Amendment to Trust Indenture. The City Dlanager of the City is hereby authorized to execute and the City Clerk is hereby authorized to attest under the seal of the City in one or more counterparts the Third lmendmer.t to the Zndenture in substantially the form on - 28C - � file with the City Clerk on the date hereof, with such changes, alterations and corrections (not inconsistent therewith) as may be approved by the City Manager of the City, such approval to be conclusiveiy presumed by the execution thereof; and such Third Amendment to the Indenture is hereby approved by the City and the City hereby authorizes and directs the City Clerk to deliver to the Trustee, the Third Amendment to the Trust Indentur�, all the provisions of which, when executed and delivered by the Trustee as authorized herein and by the Trustee duly authorized shall be deemed to be a part of this Resolution as fully and to the same extent as if incorporated verbatim herein. The City does hereby confirm and provide in the Indenture, as amended to the Closing Date, the terms, conditions, covenants, rights, obligations, duties and agreements to and for the benefit of the holder of the Bonds as of the Closing Date, the City as Issuer, the Company and the Trustee. Section 3.2 Authorization of Execution and Delivery of Second Amendment to Loan Agreement. The Second Amendment to the Loan Agreement in substantially the form on file with the City Clerk on the date hereof effective as of the Closing Date with such changes, alterations, and corrections (not inconsistent herewith) as may be approv- ed by the City Manager of the City, such approval to be conclusively presumed by the execution thereof, is hereby approved by the Common Council and the City hereby authorizes and directs the City Manager to execute and the City Clerk to attest, under the seal of the City in one or more counter- parts the Second Amendment to the Loan Agreement, confirming and amending said Loan Agreement and to deliver to the Company the Loan Agreement, as amended, effective on the Closing Date, all of the provisions of which, when executed and delivered by the City Manager as authorized herein and by the Company duly authorized, shall be deemed to be a part of this Resolution as fully and to the same extent as if incorporated verbatim herein. Section 3.3 General Authorizations. The members of the Common Council, the officers, attorneys, or other agents and employees of the City and the Trustee are hereby authorized to do all acts and things authorized or required by this Resolution, the Loan Agreement, as amended, or the Indenture, as amended, or desirable and consistent with the requirements hereof or such Loan Agreement or Indenture, for the full, punctual and complete performance of all the terms, covenants and agreements contained in the Bonds, the Loan Agreement, as amended, the Indenture, as amended, and this Resolution. :� � ARTICLE IV Delivery of Transcript Section 4.1 Delivery of Transcript. The City Clerk shall furnish the Trustee, the Company and the Bond holder upon request, a true transcript of all the proceedings with reference to the adoption of this Resolution, certified by said Clerk, along with such additional information from the records of the City as is necessary to determine the regularity and validity of the amendments authorized herein. ARTICLE V Severabili Section 5.1 Severability of Invalid Provisions. If any one or more of the covenants, agreements, or provisions contained herein shall be held contrary to any express provisions of law or contrary to the policy of express law, though not expressly prohibited or against public policy, or shall for any reason whatsoever be held invalid, then such covenants, agreements or provisions shall be null and void and shall be deemed separable from the remain- ing covenants, agreements or provisions, and shall in no way affect the validity of any of the other provisions hereof or of the amendments authorized herein. ARTICLE VI Repealing Clause Section 6.1 Repealing Clause. or parts thereof of the Issuer in conflict contained herein are, to the extent of such superseded and repealed. ARTICLE VII Effective Date All resolutions with the provisions conflict, hereby Section 7.1 Effective Date. This Resolution shall be filed in the office of the City Clerk and shall take effect and be in force immediately upon its adoption - 28e - and the substance thereof and all motions and votes thereon shall be included in and published as part of the official proceedings of the Common Council of the City. APPROVED: James A. Mather, Deputy r4ayor ATTEST: Donna C. 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