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HomeMy WebLinkAbout33134 / 84-05sdh112084 SUBtdITTED DY � CITY COUNCIL �,p�OVED j�Y� ��1�-��" fi'�� - OF THE CITY OF OSHKOSH RESOLUTION NO. � BOND RESOLUTION AUTHORIZING $1,600,000 CITY OF vSrii�^vSn� :•:��CC.`.�IN INDUSTRIAL DEVELOPMENT REVENUE BONDS (BANNER PACKAGING, INC. PROJECT) WHEREAS, the City of Oshkosh, Wisconsin (the "ISSUer"), is a municipal corporation organized and existing under and pursuant to the laws of the State of Wisconsin and is authorized by Section 66.527, Wisconsin Statutes, as amended (the "ACt"): (a) to issue revenue bonds to finance certain costs related to qualified projects; and (b) to enter into a revenue agreement with an eligible participant wherein the eligible participant agrees to cause a qualified project to be constructed and to provide the Issuer with revenues sufficient to provide for the prompt payment of the principal of and interest on the revenue bonds; and WHEREAS, Banner Packaging, Inc., a Wisconsin corporation (the "Borrower"), has heretofore requested the Issuer to issue revenue bonds to finance a project on behalf of the Borrower as an eligible participant under the Act; and WHEREAS, this body has heretofore found and determined that said project consisting of the acquisition and installation of machinery and equipment for the purpose of the manufacture of flexible packaging products (the "Project") is a qualified "project" within the meaning of the Act and that the Borrower is an "eligible participant" within the meaning of the Act; and - 9 - WHEREAS, on August 2, 1984, this body adopted an initial resolution pursuant to the Act wherein it was resolved that the Issuer would issue industrial development revenue bonds to finance the Project, subject however, to the satisfaction of certain conditions including the approval by this body of the terms of the bonds and the revenue agreement described in said initial resolution; and WHEREAS, on August 2, 1984, this body adopted a resolu- tion relating to waiver of Section (11)(b)1. of the Act and in that resolution provided that the revenue agreement shall contain a contractual antidiscrimination provision which shall be approved by the Issuer; and WHEREAS, on August 3, 1984, notice of the adoption of the initial resolution was published in accordance with Section (10)(b) of the Act, and notic� af adcption of the Waiver resolu- tion was published in accordance with Section (17)(b)2. of the Act, and no sufficient petition has been filed with the Clerk requesting a referendum on the question of the issuance of said revenue bonds; and WHEREAS, on December 6, 1984, a public hearing was held at the City Hall and conducted in a manner that provided a reasonable opportunity to be heard for persons with differing views on both issuance of revenue bonds and the location and nature, of the proposed facility to be financed with revenue bonds; and WHEREAS, notice of the public hearing, substantially in the form attached hereto as Exhibit A and incorporated herein, was published by one insertion in the official newspaper of the Issuer for the publication of notices pursuant to Chapter 985 of the Wisconsin Statutes no less than 14 days before the scheduled date of the hearing; and WHEREAS, the official newspaper is a newspaper of general circulation in the locality of the Project; and WHEREAS, this body is an elected legislative body of the Issuer; and WHEREAS, the Borrower has now requested that the Issuer provide for the issuance of $1,600,000 principal amount of reve- nue bonds upon the terms set forth in this Resolution (as herein described, the "Bonds"); and . -2- - 9a - WHEREAS, in connection therewith the Borrower has presented the Issuer with proposed documentation for the Bonds as follows: (a) a Bond Purchase Agreement, to be dated as of the date of adoption of this Bond Resolution (the "Bond Purchase Agreement"), to be entered into by and between the Issuer, and First Wisconsin National Bank of Oshkosh {the "Purchaser"), setting forth the terms and conditions on which the Issuer will se12 and the Purchaser will purchase the Bonds; and (b) a Trust Indenture and Revenue Agreement, to be dated as of December 1, 1984 (the "Sn- denture"), to be entered into by and among the Issuer, the Borrower, and the corporate trustee hereinafter designated (the "Trustee"), providing for the creation of the Bonds, the terms thereof and the security therefor, and a loan of the Bond proceeds to the Borrower on repayment terms scheduled to provide the Issuer with revenues sufficient to retire the Bonds in accordance with their terms; and (c) a Promissory Note, to be dated the date of the issuance and sale of the Bonds to the Purchaser {the "Promissory Note"), to be issued by the Borrower payable to the order of the Issuer in the principaZ amount of the Bonds as evidence of the borrowing provided for in the Indenture and to be assigned by the Issuer to the Trustee; and (d) a Security Agreement, to be dated as of December 1, 1984 (the "Security Agreement"), from the Borrower to the Issuer, and from the issuer to be assigned to the Trustee, pro- viding collateral security for the performance of the Borrower's obligations under the Indenture; and (e) a Guaranty Agreement, to be dated December 1, 1984, from Ronald E. Sowle and Frank J. Kearny III, individuals residing in the State of Wisconsin (the "Guarantors") to the Trustee; and -3- - 9b - WHEREAS, in accordance with the Act, this Resolution and the aforesaid instruments and documents, the Bonds and interest thereon shall never constitute an indebtedness of the Issuer within the meaning of any State constitutional provision or statutory limitation, shall not constitute or give rise to a pecuniary liability of the Issuer or a charge against its general credit or taxing powers, and shall not constitute or give rise to any personal liability of any member of this body or of any officers or employees of the Issuer on the Bonds or for any act or omission related to the authorization or issuance of the Bonds; and WHEREAS, it is in the public interest of the Issuer to encourage and promote the development of projects such as the Project in order to realize public benefits such as, but not limited to, the provision and retention of gainful employment opportunities for tne citizens of the Issuer; the stimulatio.^. of the flow of investment capital into the Issuer with resultant beneficial effects on the economy in the Issuer; and the preser- vation and enhancement of the Issuer's tax base; and WHEREAS, the development of the of Bonds to finance the Project as herein judgment of this body, serve the intended public purpose and in all respects conform and requirements of the Act; NOW, THEREFORE, BE IT RESOLVED: Project and the issuance recited will, in the accomplishments of to the provisions 1. Findings and Determinations. It has been found and determined and is hereby declared: (a) that the Project is a qualified "project" under and for the purposes of the Act; (b) that the Borrower is a qualified "eligible participant" under and for purposes of the Act; (c) that the Indenture meets the requirements of a"revenue agreement" under and for purposes of the Act; (d) that the estimated aggregate cost of pro- viding the Project and paying the costs incident to the financing is not less than the principal amount of the Bonds; -4- - 9c - (e) that the payments required to be made by the Borrower under the Indenture are sufficient in amount to pay when due the principal of, premium, if any, and interest on the Bonds; (f) that the Indenture contains a contractual antidiscrimination provision which is hereby expressly approved by the Issuer; and (g) that all conditions set forth in said Initial Resolution have been satisfactorily met. 2. Definitions. As used in this Resolution, the following terms shall have the respective meanings set forth in this paragraph: "Chief Municipal Officer" means the City Manager of the Issuer. "Bond Amount" means $1,600,000. 3. Authorization to Borrow and to Lend. The Issuer shall borrow, but only in the manner herein recited, the sum of the Bond Amount for the purpose of (i) financing the costs of providing the Project, (ii) paying the costs of issuing and selling the Bonds, and (iii) paying such other costs related thereto as are permitted to be paid with bond proceeds under the Act. Said borrowing shall be accomplished through the sale of the Bonds issued pursuant to the Act. The Issuer shall lend the sum of the Bond Amount to the Borrower pursuant to the terms of the Indenture, which borrowing shall be evidenced by the Promis- sory Note and secured by the Security Agreement. 4. Designation, Denomination, Tenor and Maturity Bonds Created for Issuance. The Bonds shall be issued in th principal amount of the Bond Amount and shall be designated: CITY OF OSHKOSH, WISCONSIN INDUSTRIAL DEVELOPMENT REVENUE BONDS (BANNER PACKAGING, INC. PROJECT) The Bonds shall be payable in seventy-two (72) con- secutive monthly payments of principal and interest, due on the first day of each month commencing January 1, 1985, each in the amount of the Monthly Payment Amount. Each monthly payment shall, be applied first to interest then due and secondly to principal. If on any payment date the Monthly Payment Amount is insufficient to pay interest then accrued and unpaid, the Monthly Payment Amount -5- - 9d - shall be increased for that payment date by the amount of such insufficiency. For payments due through December 1, 1985, the Monthly Payment Amount shall be $28,053.19; thereafter, the Monthly Payment Amount shall be the amount determined for each succeeding twelve-month period by the Trustee prior to each January 1(but in no event earlier than the tenth business day prior thereto) which would, if in effect for the remaining number of monthly payments, amortize the outstanding principal amount of the Bonds together with interest to accrue thereon, assuming an interest rate equal to seventy percent (70�) of the Prime Rate in effect on the date of such determination; the foregoing notwith- standing, the Monthly Payment Amount for the payment due December 1, 1990 shall be equal to the entire remaining unpaid principal balance plus accrued and unpaid interest. The Bonds shall bear interest at the rate per annum equal to seventy percent (708) of the Prime Rate; provided, however, that the Bonds shall not bear interest at a rate per annum less than eight percent (88); provided, further, that in the event of any change in the maximum federal corporate income tax rate, the Bonds shall bear interest at the rate per annum equal to the interest rate otherwise in effect multiplied by a fraction (expressed as a decimal) the numerator of which is one minus the new maximum federal corporate income tax rate and the denominator of which is .54. The foregoing notwithstanding, upon the occurrence of a Tax Violation Allegation (as defined in the Indenture), the Bonds shall bear interest at the rate per annum equal to the Prime Rate plus two percent (28), effective retro- actively to the Tax Violation Date (as defined in the Indenture). The interest rate on the Bonds shall retroactively revert to the rate payable if no Tax Violation Allegation had ever occurred if such Tax Violation Allegation is successfully contested, as provided for in the Indenture. Interest shall be calculated on the basis of actual days elapsed, using a rate per diem computed by dividing the rate per annum by 360. "Prime Rate" means the rate announced from time to time by First Wisconsin National Bank of Milwaukee, Milwaukee, Wisconsin, as its prime rate, changing when and as such prime rate changes. The Bonds shall be issuable as a single fully registered bond. The Bonds and the interest thereon shall be transferable by and shall be payable to the registered owners thereof in the manner and with the effect provided in the Indenture. The prin- cipal of, premium, if any, and interest on the Bonds shall be payable in lawful money of the United States of America at the principal corporate trust office of the Trustee, as paying agent, or the office of any successor or additional paying agent desig- nated by the Issuer and approved by the Borrower. � - 9e - The Bonds shall specify, as their original issue date, the date of the issuance and sale of the Bonds to the Purchaser. Each Bond shall be dated, as its registration date, the date of its authentication. Phe Bonds shall be issued in the form therefor set forth in the Indenture, with such insertions therein as shall be necessary to comply with the terms of this Resolution and with such corrections therein, if any, as the approving bond attorney may require for conformity with the terms of this Resolution, the Indenture, and the Act. 5. Execution and Authentication of Bonds. The Bonds shall be executed on behalf of the Issuer by its Chief Municipal Official under the official seal of the Issuer attested by its Clerk. The signatures of the Chief Municipal Officiel and the Clerk may be manual or facsimile. The official seal of the Issuer may be actually impressed or imprinted or may be repro- duced thereon by facsimile. No Bond shall be issued unless first authenticated by the Trustee, to be evidenced by the manual sig- nature of an authorized signatory of the Trustee on each Bond. 6. Designation of Trustee. The Issuer hereby desig- nates and appoints First Wisconsin National Bank of Oshkosh, Oshkosh, Wisconsin, to perform the functions of the Trustee, bond registrar, and paying agent under the Indenture. 7. Bonds as Limited Obligations. The Bonds and interest thereon shall never be or be considered a general obligation of the Issuer or an indebtedness of the Issuer within the meaning of any State constitutional provision or statutory limitation and shall not constitute or give rise to a pecuniary liability of the Issuer or a charge against its general credit or taxing powers. 8. Source of Payment; Pledge of Revenues. The Bonds shall be 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 terms of the Promissory Note, the Security Agreement, the Guaranty Agreement, and the Indenture; including, without limitation, (i) all payments by the Borrower on the Promissory Note or pursuant to the terms in the Indenture, (ii) all cash and securities held from time to time in the Trust Funds, and the investment earnings thereon, and (iii) all amounts derived by recourse to the Security Agreement or the Guaranty Agreement; but excluding any amounts derived by the Issuer for its own account pursuant to the terms in the Indenture. -7- - 9f - 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 Trustee all of its right, title and interest in and to the Promissory Note, the payment obligations of the Borrower under the Indenture (except for the Issuer's rights to receive and enforce payment of certain taxes, expenses and indemnity payments from the Borrower as set forth in the Indenture), the Security Agreement, and the trust funds held by the Trustee under the Indenture. 9. Redemption of Bonds Prior to Maturity. The Bonds shall be subject to redemption prior to maturity as provided in the Indenture. Notice of any redemption of Bonds prior to stated maturity shall be given in the manner provided in the Indenture. The principal of, premium, if any, and interest on Bonds called for r2demption as aforesaid shall be payable solely from money held by the Trustee under the Indenture and available therefor, including money derived from the Borrower for such purpose pursuant to the Indenture. 10. Trust Funds. The following described Trust Funds shall be created under the Indenture to be held in the custody of the Trustee and applied for the uses and purposes provided in the Indenture and the Security Agreement (summarized below): (a) Construction Fund. The proceeds from the sale of the Bonds will be deposited into the Construction Fund. Moneys in the Construction Fund will be applied to the payment of Project costs (including Bond issuance costs) upon requisition of the Borrower as provided in the Indenture. After certification by the Borrower that the Project has been completed and that certain other conditions have been satisfied, any remaining balance in the Construction Fund shall be transferred to the Surplus Construction Fund. Investment earnings on the Construction Fund shall be for the account of the Construction Fund. (b) Bond Fund. All payments from or for the account of the Borrower on the Promissory Note (including prepayment of principal and premium) shall be deposited into the Bond Fund. Moneys in the Bond Fund shall be used for the payment of the principal of, premium, if any, and interest on the Bonds when due (whether by stated maturity or call for re- demption). u - 9g - (c) Surplus Construction Fund. Surplus moneys in the Construction Fund shall be trans- ferred to the Surplus Construction Fund. These moneys shall be used to redeem out- standing Bonds in the largest amount possible at the earliest possible redemption date or dates given the terms of the Bonds, however, during years in which the Bonds are callable for redemption only in an amount in excess of available moneys in the Surplus Construction Fund, or during years in which the Bonds are callable but a redemption premium or penalty is required for such early redemption, these moneys shall not be so used unless the Borrower so directs. (d) Secured Equipment Reserve Fund. Under certain circumstances, moneys may be trans- ferred to the Secured Equipment Reserve Fund from other Trust Funds or deposited directly into the Secured Equipment Reserve Fund. At the direction of the Borrower, moneys in the Secured Equipment Reserve Fund may be (i) transferred to the Bond Fund, (ii) used to purchase Bonds for cancellation, or (iii) used to pay or reimburse the Borrower for costs of depreciable property necessary to complete the Project or an additional project. (e) Znsurance Proceeds Fund. Net proceeds of certain insurance awards will be deposited into the Insurance Proceeds Fund, as provided in the Security Agreement. The Trustee is authorized to withdraw funds from the In- surance Proceeds Fund for application as provided in the Security Agreement. 11. Investment of Trust Funds. Any moneys held as a part of the trust funds held by the Trustee under the Indenture may be invested and reinvested by the Trustee upon request by the Borrower in "Qualified Investments" as specified in the Indenture. 12. Determination of Revenue Payment. The amount necessary in each year to pay the principal of, premium, if any, and interest on the Bonds is the sum of (i) the amount of principal becomin9 due in such year in accordance with the table ''� -9h- in paragraph 4 of this Resolution (as reduced from time to time by reason of prior redemptions and open market purchases of Bonds in accordance with the Indenture); plus (ii) the principal amount of Bonds to be redeemed in such year in accordance with a call for redemption made in accordance with paragraph 9 of this Resolution and the Indenture, plus the premium, if any, payable with respect thereto; plus (iii) the amount of interest on the Bonds becoming due in such year in accordance with the interest rates specified in paragraph 4 of this Resolution. In expressing the Borrower's obligation to make the necessary revenue payments, it shall suffice herein and in the Indenture to state that the Borrower shall be obligated to pay the Issuer (or the Trustee for the account of the Issuer) amounts sufficient to pay when due the principal of, premium, if any, and interest on the Bonds. The Indenture contains provisions, adequate in the judgment of this body, requiring the Borrower to provide for the maintenance of the Project and the carrying of all proper in- surance with respect thereto. Consequently, the Borrower need not be required to pay amounts into any reserve funds for the retirement of the Bonds or for the maintenance of the Project. 13. Award of Bonds; Execution and Delivery of the Bond Purchase Agreement. The Borrower has negotiated for the sale of the Bonds to the Purchaser at a price of 100� of the principal amount of the Honds. Given the purposes of the fi- nancing and the involvement of the Issuer therewith, it is the determination of this body that the Bonds shall be hereby awarded to the Purchaser at the price aforesaid with delivery to follow in the manner, at the time and subject to the conditions set forth in the Bond Purchase Agreement. As evidence thereof, the Chief Municipal Official and the Clerk are hereby authorized and directed for and in the name of the Issuer to execute, affix with the official seal of the Issuer and deliver the Bond Purchase Agreement in the form presented herewith, or with such insertions therefn or corrections thereto as shall be approved by the Chief Municipal Official and Clerk consistent with this Resolution and the terms of the Act, their execution thereof to constitute conclusive evidence of their approval of any such insertions and corrections. 74. Execution and Delivery of the Indenture; Assignment of the Promissory Note and the Security Agreement. The terms and provisions of the Promissory Note, the Security Agreement, the Guaranty Agreement and the Indenture are hereby approved. The Chief Municipal Official and the Clerk are hereby authorized for and in the name of the Issuer to execute, affix with the official seal of the Issuer, and deliver the Indenture and the -10- -9�- assignments of the Promissory Note and the Security Agreement in the respective forms thereof presented herewith, or with such insertions therezn or corrections thereto as shall be approved by the Chief Municipal Official and Clerk consistent with thi5 Resolution and the terms of the Act, their execution thereof to constitute conclusive evidence of their approval of any such insertions and corrections. 15. Execution and Deliverv of the Bonds. The Chief Municipal Official and the Clerk are hereby authorized for and in the name of the Issuer to execute the Bonds in the manner authorized by paragraph 5 of this Resolution. Subject to the terms and conditions of the Bond Purchase Agreement, the Issuer shall deliver the Bonds to the Purchaser. 16. General Authorizations. The Chief Municipal Official and the Clerk and the appropriate deputies and officials of the Issuer in accordance with their assigned responsibilities are hereby each authorized to execute, publish, file, and record such other documents, instruments, notices (including notice pursuant to Wis. Stats. §893.77 and Form 8038 of the Internal Revenue Service), and records and to take such other actions as shall be necessary or desirable to accomplish the purposes of this Resolution and to comply with and perform the obligations of the Issuer under the Bonds and the Indenture. In the event that the Chief Municipal Official or the Clerk shall be unable by reason of death, disability, absence, or vacancy of office to perform in timely fashion any of the duties specified herein (such as the execution of Bonds, the Bond Purchase Agreement, the Indenture or the assignments of the Promissory Note and the Security Agreement), such duties shall be performed by the officer or official succeeding to such duties in accordance with law and the ordinances of the Issuer. 17. Public Approval. This body, on behalf of the Issuer, hereby approves of the issue of Bonds for the purposes of Section �03(k) of the Internal Revenue Code of 1954, as amended. 18. Election Under the Internal Revenue Code. The Issuer hereby elects to have the provisions of Section 103(b)(6)(D) of the Internal Revenue Code of 1954, as amended, applied to the issuance of the Bonds. The Chief Municipal Official and the Clerk or either of them are authorized to execute and file, for and in the name of the Issuer, such documents as may be necessary or appropriate to effectuate said election. 19. Ratification. The execution by the Chief Municipal Officer or the Clerk prior to the adoption of this Resolution of any instrument or document provided for above, including the ' ` -11- - 9j - Bonds, the Bond Purchase Agreement, the Indenture, or the assign- ments of the Promissory Note or the Security Agreement, pursuant to an escrow agreement in anticipation of the adoption of this Resolution or a similar resolution of this body, is hereby ratified, and the delivery of such executed documents pursuant to such escrow agreement is hereby authorized, 20. Effective Date; Conformity. This Resolution shall be effective immediately upon its passage and approval. To the extent that any prior resolutions of this body are inconsistent with the provisions hereof, this Resolution shall control and such prior resolutions shall be deemed amended to such extent as may be necessary to bring them in conformity with this Reso- lution, * * * * * The foregoing resolution of the City Council oE the City of Oshkosh, Wisconsin, was adopted and recorded on December , 7984. -12- - 9k - Mayor Clerk EXHIBIT A NOTICE OF PUBLIC HEARING TO RESIDENTS OF THE CITY OF OSHKOSH, WISCONSIN NOTICE is hereby given that the City Council of the City of Oshkosh, Wisconsin (the "Issuer") will hold a public hearing at 7:00 p.m. on December 6, 1984 at the City Hall, 215 Church Avenue, Oshkosh, Wisconsin, regarding the proposed is- suance by the Issuer of industrial development revenue bonds pursuant to Section 66.527, Wisconsin Statutes, as amended, in a maximum aggregate face amount of $1,600,000, on behalf of Banner Packaging, Inc., a Wisconsin corporation (the "Company"). The bonds would finance the acquisition and installation of machinery and equipment to be used by the Company in the facility it leases from Liskar Investments, located at 3550 Moser Street in the City of Oshkosh, which facility is used for the manufacture of flexible packaging products. The initial owner of the financed machinery and equipment will be the Company. The public hearing will be conducted in a manner that provides a reasonable opportunity to be heard for persons with differing views on both issuance of the bonds and the location and nature of the proposed facility. Any person desiring to be heard on this matter is requested to attend the public hearing or send a representative. In addition, written comments (not exceeding 250 words) may be presented at the hearing if submitted in advance to the Clerk. Comments made at the hearing are for the consideration of the City Council of the Issuer but do not bind any legal action to be taken by the City Council of the Issuer. /s/Donna C. Serwas Clerk Publication Date: November 21, 1984 - 9L - � �• �� � � c� � N �� �3 ^ 'F' \+� � � �y c� � H o' L�1 z cD C7 .• y .. N y o ad � �c o co �d N u� H � m � � �� �� �w N � F'• �1 i-' N N � r• o o N � � � H N• CJ O �� � �. z mo � � � � � x �1 0 m rom �' a � � 04 � � � l�il W � «'. (n1 ��,.