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HomeMy WebLinkAbout33622 / 85-01RESOLUTION # 1 RESOLUTION AUTHORIZING CITY OF OSHKOSH, WINNEBAGO COUNTY, WISCONSIN INDUSTRIAL DEVELOPMENT REVENUE BOND (OSHKOSE3 B'GOSH, INC. PROJECT) SERIES 1985 (THE "BOND") WHEREAS, in a resolution adopted August 15, 1985 (the "Initial Resolution") by the City Council of the City of Oshkosh, Winnebago County, Wisconsin (sometimes herein called the "City" or the "Issuer"), the Issuer expressed its intent, and authorized and directed its officers, to work toward the consummation of a financing agreement with Oskkosh B'Gosh, Inc., a Delaware corpora- tion (the "Company") pursuant to which the City would issue its industrial development revenue bonds pursuant to Section 66.521, Wisconsin Statutes, as amended (the "Act"), in an amount not to exceed $2,000,000 for tne purpose of financing the costs of, among other things, acquiring land and existing facilities (the "Facilities") located at 2660 Oregon Street in the City, and the rehabilitating, improvement and equipping of such Facilities and the making o£ related improvements to be initially used by the Company in connection with the manufacture of clothing and for related distribution and service activities (which acquisition, rehabilitation, equipping and related improvements are referred to herein as the "Project"); and WHEREAS, in reliance upon such Initial Resolution, the Company has commenced such acquisition, rehabilitation, equipping and related improvements and the payment of related costs, has entered into negotiations with the initial purchaser (the "Pur- chaser") £or purchase of the Bond to be so issued and caused to be prepared and herewith submitted to this Council forms of the following documents: (a) Loan Agreement between the Issuer and the Company pursuant to which the Issuer agrees to loan the proceeds of the Bond to the Company to £inance the Project and related costs, together with the Company's Note, dated the date of the closing of the Bond, containing its promise to repay such loan with interest as set forth therein (referred to herein as the "Loan Agreement" and "Note", respectively); and (b) Indenture between the Issuer and First Wisconsin National Bank of Oshkosh, Oshkosh, Wisconsin (the "Assignee"), as Assignee (referred to herein as the "Indenture"); and (c) Project Financing Agreement among the Issuer, the Company and the Purchaser (referred to as the "Agree- ment"); and - 1 - _J WHEREAS, Council drafts Agreement; and RESOLUTION # 1 there have been presented to and received by this of the Loan Agreement and Note, Indenture and WHEREAS, the issuance of the Bond by the Issuer, and the assignment of the Loan Agreement and its revenues to the Assignee under the Indenture, as herein recited and provided, in the judg- ment o£ this Council will serve the intended accomplishments and in all respects conform to the provisions and requirements of the Act; and WHEREAS, the City has previously issued its $800,000 Indus- trial Development Revenue Bonds, Series 1975 (Oshkosh B'Gosh, Inc. Project) pursuant to a Mortgage and Indenture o£ Trust dated as of March 1, 1975 (the "1975 Indenture"), and its $2,400,000 Industrial Development Revenue Bonds (Oshkosh B'Gosh, Inc. Project) Series 1983 pursuant to an Indenture dated as of November 1, 1983 (the "1983 Indenture"), which 1975 Indenture and 1983 Indenture are separate from the Indenture pursuant to which the Series 1985 Bond is being issued; and WHEREAS, the Company has made representations to the Issuer (to be supported by appropriate documentation) that the estimated cost of the Project, together with related costs, is an amount which will be at least $2,000,000; and WHEREAS, the Company represents and agrees that it will enter into the Loan Agreement with respect to the Project, issue the Note, pay all expenses with respect thereto, and comply with all the terms and provisions o£ the Note and Loan Agreement so that full debt service will be provided in order to meet payments of principal of, premium, if any, and interest on the Bond and the Company agrees that its representations have been expressly relied upon by the Issuer in the adoption of this Resolution; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF OSHKOSH, WISCONSIN, THAT: 1. Definitions. The terms "Assignee", "Series 1985 Bond", "Bondholder" and "Construction Fund" shall have the same meanings as defined in the Indenture. The term "Bond" when used herein shall re£er to the Series 1985 Bond, unless the context otherwise requires. 2. Determination. Based on the representations hereinbe- fore described, this Council hereby finds and determines that: (a) the estimated cost of the Project as more particularly defined in the Indenture including all costs in connec- tion therewith permitted to be financed with the Bond under the Act is at least $2,000,000; -2- RESOLUTION # 1 (b) the loan payments to be made in each year as speci£ied in Section 3.6 of the Loan Agreement are sufficient to pay the principal of and interest on the Sond; (c) no reserve fund need be established in connection with the retirement of the Bond or maintenance of the Project; and (d) the anti-discrimination provision included in the Loan Agreement is satisfactory in all respects to the Issuer. 3. Issue of Series 1985 Bond. The Issuer shall issue its Bond in the amount of Two Million Dollars ($2,000,000) for the purpose of financing the Project and other authorized costs. The Bond shall be dated the date of its issuance and sale. The Bond shall be sold to the Purchaser in accordance with the terms and conditions set forth in the Agreement. The Bond shall be issued pursuant to the Act, shall be designated, dated, in the form, and have the maturity and bear interest as provided in the Indenture. All details pertaining to the Bond as provided in the Indenture are hereby adopted as and for the details approved by this Issuer. The Bond shall not be a general obligation or indebtedness of the Issuer within the meaning of any state constitutional provision or statutory limitation and shall not constitute nor give rise to a pecuniary liability of the Issuer or a charge against its general credit or taxing powers, but shall be payable solely from the payments and other revenues that may be available therefor from the Loan Agreement and Note or in the event of default thereon as otherwise provided herein or in the Indenture and permitted by law, and in no event shall the Bond or the interest thereon or any other costs or expenses in connection therewith or with the Project ever be payable from any £unds of the Issuer other than the payments and other revenues to be received by the Issuer under the Loan Agreement and Note. The payments when paid by the Company pursuant to the Loan Agreement and Note, shall be paid directly to the Assignee for the account of the Issuer so long as the Bond shall be outstanding and unpaid. The Bond shall be executed on behal£ of the Issuer by its City Manager and City Clerk or their authorized deputies in their absence, shall have its corporate seal impressed or imprinted thereon and may be in typewritten form. Facsimile signatures may be used as permitted by law. 4. Approval and Execution of Documents. Subject to such changes or revisions therein as Quarles & Brady as Bond Counsel ("Bond Counsel") or Counsel for the Issuer may approve, the Indenture, Note, Loan Agreement and Agreement, in substantially their respective forms presented to this meeting, are hereby approved. The City Manager, City Clerk and Director of Finance or any of their authorized deputies, if necessary, are authorized on behalf o£ the Issuer to execute and deliver the Indenture, Loan Agreement and Agreement, with such revisions, changes or deletions as may be approved by the signatories thereto, which approval shall be conclusively proved by their execution of such -3- RESOLUPION # 1 documents. Said City Manager, City Clerk and Director of Finance and their authorized deputies and other o£ficials of the Issuer are hereby authorized to prepare or to have prepared and to execute, file and deliver, as appropriate, all such documents, financing statements, opinions, certificates, affidavits and closing or post-closing instruments as may be required by this resolution or deemed necessary by said officials or by Bond Counsel. 5. A�pointment of Assignee; Funds• Investment Directions. First Wisconsin National Bank of Oshkosh, Oshkosh, Wisconsin, is hereby designated as Assignee under the Indenture. The Assignee shall establish the Construction Fund described in Section 302 of the Indenture to pay Project Costs and other amounts authorized in the Indenture. Monies in the Construction Fund shall be invested and rein- vested in accordance with Section 302 of the Indenture. 6. Certain Indenture Provisions and Additional Security. The Bond and the interest thereon shall be additionally secured by the granting of a mortgage on the Facilities pursuant to a Real Estate Mortgage from the Company to the Assignee, and by the granting of a security interest in the equipment financed with Bond proceeds pursuant to a Security Agreement between the Company and the Assignee. 7. Certain Provisions of the Loan A reement. The Loan Aqreement provides, inter alia, that: (a) The maintenance and repair costs of the Project, taxes in connection therewith, and other charges and insur- ance with respect to the Project will be taken out, assumed and paid by the Company. The Issuer has no obligation with respect thereto. The proceeds of any recovery under the foregoing insurance policies shall be used and disposed of in the manner provided in the Loan Agreement and the Indenture. (b) The Company shall make payments pursuant to the Note and Loan Agreement in the amounts sufficient for payment when due of the principal of, premium, i£ any, and interest on the Bond. 8. Covenants Bindin Upon Issuer. All covenants, stipu- lations, obligations and agreements of the Issuer contained in this resolution and in the Bond, the Loan Agreement, the Indenture and the Agreement shall be deemed to be the covenants, stipula- tions, obligations and agreements of the Issuer to the full extent authorized or permitted by law, and such covenants, stipula- tions, obligations and agreements shall be binding upon the Issuer and its successors from time to time and upon any body to which any powers or duties affecting such covenants, stipula- 7� I RFSOLUTION # 1 tions, obligations and agreements shall be transferred by or in accordance with law. Except as otherwise provided in this resolu- tion, all rights, powers and privileges conferred and duties and liabilities imposed upon the Issuer or the of£icers thereof by the provisions o£ this resolution, the Bond, the Loan Agreement, the Indenture or the Agreement shall be exercised or performed by the Issuer or by such officers, board or body as may be required by law to exercise such powers and to perform such duties. No covenant, stipulation, obligation or agreement herein contained or contained in the Bond, the Loan Agreement, the Indenture or the Agreement shall be deemed to be a covenant, stipulation, obligation or agreement of any officer, agent or employee of the Issuer or o£ this Council in his or her indi- vidual capacity and neither the members of this Council nor any officer executing the Bond nor any other o£iicer or employee of the Issuer shall be liable personally on the Bond or be subject to any personal liability or accountability £or any act or omis- sion related to the authorization or issuance thereof. 9. Persons Responsible for Issuinq the Bond. The City Manager and City Clerk and their authorized deputies are hereby designated as the officers responsible for issuing the Bond within the meaning of Section 1.103-13(a)(2)(ii)(C) of the Income Tax Regulations. 10. Statement of Election. The City Manager and City Clerk, or any of their authorized deputies, if necessary, are hereby authorized and directed on behalf of the Issuer to complete, execute and file with the Internal Revenue Service a statement of the election by the Issuer to issue the Series 1985 Bond in an aggregate principal amount exceeding $1,000,000 but not exceeding $10,000,000 as provided in Section 103(b)(6)(D) of the Internal Revenue Code of 1954, as amended. 11. Approval. This Resolution is our approval as required by Section 103(k) of the Internal Revenue Code of 1954, as amended, and the regulations thereunder. This Resolution was adopted a£ter a public hearing held pursuant to reasonable public notice. -5- RESOLUTION # 1 The Project and the location of the Project, maximum aggregate face amount of the Bond and the initial owner, operator and manager of the Project will be as described in this Resolution. 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