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HomeMy WebLinkAbout32648 / 83-03R E V I S E il November 17, 1983 ll3 RESOLUTION (CARRIED LOST LAID OVER WITHDRAWN ) PURPOSE: FINAL RESOLUTION - INDUSTRIAL DEVELOPMENT REVENUE BONDS - OSHKOSH B'GOSH, INC. INITIATED BY: OSHKOSH B'GOSH, INC. BE IT RESOLVED by the Common Council of the City of Oshkosh that the following attached resolution for authorizing the issuance of not to exceed $2,400,000 City of Oshkosh, Wisconsin, Industrial Development Revenue Bonds on behalf of Oshkosh B'Gosh, Inc. is hereby approved. SUHMITTED BY _ APPROVED r, ' RESOLUTION # 3 RESOLUTIONS AUTHORIZING AP?ENDMENTS WITH RESPECT TO SERIES 1975 INDUSTRIAL DEVELOPMENT REVENUE BONDS AND AUTHORIZING SERIES 1983 INDUSTRIAL DEVELOPMENT REVENUE BOND CITY OF OSHKOSH, WINNEBAGO COUNTY, WISCONSIN INDUSTRIAL DEVELOPMENT REVENUE BOND (OSHKOSH B'GOSH, INC. PROJECT) SERIES 1983 (THE "BOND") WHEREAS, in a resolution adopted December 17, 1981 (the "Initial Resolution") by the Common 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 financinq agreement with Osnkosn B'Gosh, Inc., a Delaware corpor- ation (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 $2,400,000 for the purpose of financing costs of, among other things, expanding and equipping the facility presently operated by the Company in the City in connection with its clothing manufacturing business and for related distribution and service activities (which expansion, equippinq and related improvements are referred to herein as the "Project"); and WHEREAS, the facility operated by the Company in the City and to be expanded by the Project has two principal locations within the City: 164 West 28th Street and 112 Otter Street; and WHEREAS, more specifically, the Project consists of the construction of a building and the makinq of related improvements at 2728 Oregon Street immediately adjacent to that portion o£ the Company's facility located at 164 West 28th Street and the purchase and installation o£ equipment to be used in such building and the purchase of semi-trailers to be based at such location, and the purchase and installation of equipment for, remodeling of, and the making of related improvements to that portion of the Company's facility located at 112 Otter Street; and WHEREAS, the City has previously issued $800,000 City o£ Oshkosh, Wisconsin Industrial Development Revenue Bonds, Series 1975 (Oshkosh B'Gosh, Inc. Project) (the "Prior Bonds") with respect to its 28th Street location pursuant to a Mortgage and Indenture of Trust (the "Prior Indenture") separate from the Indenture described below; and WHEREAS, the Prior Indenture was dated as of March 1, 1975 between the City and First Wisconsin National Bank of Oshkosh as Trustee and the Prior Bonds are being paid from revenues produced under a Lease Agreement (the "Lease") dated as of March 1, 1975 between the City and the Company; and - 4a - RESOLUTION # 3 Wf�REAS, the facility financed by the Prior Bonds is located on the real estate described in Exhibit A to each of the Prior Indenture and the Lease and, prior to the closing of the issuance and sale of the Prior Bonds and the execution and delivery of the Indenture and Lease, the Company owned such real estate and such real estate was conveyed by the Company to the City and leased back by the Company pursuant to the Lease and mortgaged to the Trustee under the Prior Indenture in connection with the sale of the Prior Bonds; and WHEREAS, pursuant to the Lease, the Company has the riqht to repurchase the real estate described in Exhibit A to each of the Prior Indenture and the Lease for $10 upon the fu11 payment of the Prior Bonds; and WE3EREAS, in order to facilitate the issuance and sale of the Bond, it is deemed desirable to amend the Indenture and the Lease to release the real estate described in the Deed (as defined below) from such Indenture and Lease and for the City to sell such real estate to the Company for $10; and WHEREAS, in reliance upon such Initial Resolution, the Company has commenced such expanding and equipping and related improvemenCs and the payment of related costs, has entered into negotiations with the initial purchaser (the "Purchaser") for purchase of the Bond to be so issued and caused to be prepared and herewith submitted to this Common Council £orms of the follow- ing 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 finance 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 "Revenue Agreement" and "Note", respectively); and (b) Indenture between the Issuer and Norwest Bank St. Pau1, National Association, in St. Paul, Minnesota (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 (d) Amendment to Mortgage and Indenture of Trust and Lease among the Issuer, the Company, and the Trustee dated as of November 1, 1983 (referred to as the "Amendment with Respect to Prior Bonds"); and - 4b - RESOLUTION # 3 (e) Deed from the City to the Company with respect to the real estate being released from the Prior Indenture and Lease (referred to as the "Deed"); and (f) Combination Mortgage, Security Agreement and Fixture Financing Statement dated as of November 1, 1983 from the Company to the Assignee (referred to as the "Mort- gage"); and WHEREAS, there have been presented to and received by this Council dra£ts of the Revenue Agreement and Note, Indenture, Agreement, Amendment with Respect to Prior Bonds, and Deed; and WHEREAS, the issuance of the Bond by the Issuer, and the assignment of the Revenue Agreement and its revenues to the Assignee under the Indenture, as herein recited and provided, in the judgment of this Council wi11 serve the intended accomplish- ments and in all respects con£orm to the provisions and require- ments of the Act; 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 $2,400,000; and WHEREAS, the Company represents and agrees that it will enter into the Revenue Agreement with respect to the Project, issue the Note, pay a11 expenses with respect thereto, and comply with all the terms and provisions of the Note and Revenue Agree- ment 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 COMMON COUNCIL OF THE CITY OF OSHKOSH, WISCONSIN, THAT: 1. De£initions. The terms "Assignee", "Series 1983 Bond", "Bondholder", "Construction Fund" and "Trust Estate" shall have the same meanings as de£ined in the Indenture. The term "Bond" when used herein shall refer to the Series 1983 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 $2,400,000; - 4c - RESOLUTION# 3 (b) the loan payments to be made in each year as speci£ied in Section 3.6 of the Revenue Agreement are sufficient to pay the principal of and interest on the Bond; (c) no reserve fund need be established in connection with the retirement o£ the Bond or maintenance of the Project; and (d) the anti-discrimination provision included in the Revenue Agreement is satisfactory in a11 respects to the Issuer. 3. Issue of Series 1983 Bond. The Issuer sha11 issue its Bond in the amount of Two Million Eour Hundred Thousand Dollars ($2,400,000) for the purpose of financing the Project and other authorized costs. The Bond shall be dated the date of its issu- ance and sale. The Bond sha11 be sold to the Purchaser in accordance with the terms and conditions set forth in the Aqreement. The Bond shall be issued pursuant to the Act, shall be designated, dated, in the form, and have the maturities and bear interest as provided in the Indenture. All details pertaining to the Bond as provided in the Indenture are hereby adopted as and £or 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 there£or from the Revenue 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 funds of the Issuer other than the payments and other revenues to be received by the Issuer under the Revenue Agreement and Note. The payments when paid by the Company pur- suant to the Revenue Agreement and Note, sha11 be paid directly to the Assignee for the account of the Issuer so long as the Bond shall be outstanding and unpaid. The Bond sha11 be executed on behalf o£ the Zssuer 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 1aw. 4. Aporoval and Execution of Documents. Subject to obtaining consent to the Amendment with Respect to Prior Bonds of the holders of two-thirds in aggregate principal amount outstanding of the holders of the Prior Bonds as required under Section 12.02 of the Prior Indenture and subject to such changes or revisions therein as Quarles & Brady as Bond Counsel ("Bond Counsel") or Counsel for the Issuer may approve, the Mortgage, Indenture, Note, Revenue Agreement, Agreement, Amendment with Respect to Prior Bonds, and Deed, in substantially their respective forms - 4d - RESOLUTION# 3 presented to this meeting, are hereby approved. The City Manager and City Clerk or any of their authorized deputies, if necessary, are authorized on behalf of the Issuer to execute and deliver the Indenture, Revenue Agreement, Aqreement, Amendment with Respect to Prior Bonds, and Deed, with such revisions, changes, or dele- tions as may be approved by the signatories thereto, which approval shall be conclusively proved by their execution of such documents. Said City Manager and City Clerk and their authorized deputies and other officials of the Issuer are hereby authorized to prepare or to have prepared and to execute, £ile and deliver, as appropriate, a11 such documents, financing statements, opinions, certificates, a££idavits, and closing or post-closing instruments as may be required by this resolution or deemed necessary by said of£icials or by Bond Counsel. 5. Apoointment of Assignee; Funds; Investment Directions. Norwest Bank St. Paul, National Association, St. Pau1, Minnesota, is hereby designated as Assignee under the Indenture. The Assignee shall establish the Construction Eund described in Section 302 of the Indenture to pay Project Costs and other amounts authorized in the Indenture. Moneys 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 sha11 be additionally secured by the granting of a mortgage on and a security interest in certain of the Company's real and personal property from the Company to the Assignee as set forth in the Mortgage. 7. Certain Provisions of the Revenue Agreement. The Reve- nue Agreement 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 wi11 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 sha11 be used and disposed of in the manner provided in the Revenue Agreement and the Indenture. (b) The Company and Revenue payment when and interest sha11 make payments pursuant to the Note Agreement in the amounts sufficient for due of the principal of, premium, if any, on the Bond. 8. Covenants Binding Uoon Issuer. A11 covenants, stipu- lations, obligations and agreements of the Issuer contained in this resolution and in the Bond, the Revenue Agreement, the Indenture, the Aqreement, the Amendment with Respect to Prior - 4e - RESOLUTION # 3 Bonds, and Deed sha11 be deemed to be the covenants, stipulations, obligations and agreements of the Issuer to the fu11 extent authorized or permitted by 1aw, and such covenants, stipulations, obligations and agreements sha11 be binding upon the Issuer and its successors from time to time and upon any body to which any powers or duties a£fecting such covenants, stipulations, obliga- tions and agreements sha11 be transferred by or in accordance with law. Except as otherwise provided in this resolution, a11 rights, powers and privileges conferred and duties and liabilities imposed upon the Issuer or the officers thereof by the provisions of this resolution, the Bond, the Revenue Agreement, the Indenture, the Agreement, the Amendment with Respect to Prior Bonds or Deed sha11 be exercised or performed by the Zssuer 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 Revenue Agreement, the Indenture, the Agreement, the Amendment with Respect to Prior Bonds or Deed shall be deemed to be a covenant, stipulation, obligation or agreement of any officer, agent or employee o£ the Issuer or of this Council in his or her individual capacity and neither the members of this Council nor any officer executing the Bond nor any other officer or employee of the Issuer shall be liable personally on the B.ond or be subject to any personal liability or accountability for any act or omission related to the authorization or issuance thereof. 9. Persons Responsible for Zssuin the Bond. The City Manager, City C1erk and Comptroller and their authorized deputies are hereby designated as the o£ficers responsible for issuing the Bond within the meaning o£ Section 1.103-13(a)(2)(ii)(C) of the Income Tax Regulations. 10. Statement of Election. The Mayor and City Clerk, or any o£ their authorized deputies, if necessary, are hereby autho- rized and directed on behal£ of the City to complete, execute and file with the Internal Revenue Service a statement of the election by the City to issue the Series 1983 Bond in an aggregate princi- pal amount exceeding $1,000,000 but not exceeding $10,000,000 as provided in Section 103(b)(6)(D) of the Internal Revenue Code o£ 1954, as amended. 11. Public Approval. This resolution is intended to con- stitute public approval of the issuance of the Series 1983 Bond to £inance the Project within the meaning of Code Section 103(k), i.e., there is hereby approved the issuance by the City of $2,400,000 of its industrial development revenue bonds, the proceeds of which wi11 be loaned to the Company to finance costs of construction of an addition to, purchase and installation of equipment for, and the making of related improvements to the industrial facility presently operated by the Company in the City of Oshkosh (such construction, equippinq and related improvements are referred to herein as the "?roject"). More specifically, the - 4f - RESOLUTION # 3 Project hereby approved consists o£ the construction of a building and the making of related improvements at 2728 Oregon Street immediately adjacent to that portion of the Company's iacility located at 164 West 28th Street and the purchase and installation of equipment to be used in such building and the purchase of semi-trailers to be based at such location, and the purchase and installation of equipment for, remodeling of, and the making of related improvements to that portion of the Company's £acility located at 112 Otter Street. The Project hereby approved will be used by the Company, as the initial operator thereof, in connec- tion with its clothing manufacturing business and for related distribution and service activities. 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