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HomeMy WebLinkAbout32418 / 83-03May 19, 1983 (CARRIED PURPOSE: INITIATED BY #3 RESOLUTION LOST LAID OVER WITHDRAWN ) APPROVE FINAL RESOLUTION FOR INDUSTRIAL REVENUE BONDS FOR PEPSI-COLA BOTTLING C0. OF OSHKOSH, INC. PEPSI-COLA BOTTLING C0. OF OSHKOSH, INC. BE IT RESOLVED by the Common Council of the City of Oshkosh that the following attached final resolution to authorize not to exceed $6,000,000 City of Oshkosh Industrial Revenue Bonds is hereby approved. SUBidITTED BY IPP&OYED -4- RESOLUTION # 3 RESOLUTION AUTHORIZING CITY OF OSHKOSH WINNEBAGO COUNTY, WISCONSIN INDUSTRIAL DEVELOPMENT REVENUE BONDS (PEPSI COLP. BOTT:.,ING COMPAD7Y OF OSHKOSH, INC. PROJECT) SERIES 1983 (THE "BONDS") WHEREAS, in a resolution adopted November 4, 1982 by the City Council o£ the City of Oshkosh, Winnebaqo County, Wisconsin (sometimes herein called the "City" or the "Issuer"), the Issuer expressed its intent, and autnorized and directed its of£icers, to work toward the consummation of a financing agreement with Pepsi Co1a Bottling Company of Oshkosh, Inc., a Wisconsin 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 $6,000,000 for the purpose of financinq costs o£, among other things, acquiring land in the City and constructing and equipping a building thereon to be used in connection with the business of producing, bottling, warehousing and distributing so£t drinks (which acquisition, construction, equipping and related improvements are referred to herein as the "Project"); and WHEREAS, in reliance upon such resolution, the Company has commenced acquisition, construction, equipping, and related improvements and the payment of related costs, has entered into negotiations with an initial purchaser (the "Purchaser") for purchase of the Bonds to be so issued and caused to be prepared and herewith submitted to this City Council £orms o£ the following documents: (a) Mortgage, Loan and Security Agreement between the Issuer and the Company pursuant to which the Issuer agrees to loan the proceeds of the Bonds to the Company to finance the Project and related costs, together with the Company's Note containing its promise to repay such loan with interest as set forth therein (annexed hereto as Exhibit "A", incorporated herein by reference and referred to herein as the "Revenue Agreement" and "Note", respectively); and (b) Indenture o£ Trust between the Issuer and Valley Bank of Oshkosh, Oshkosh, Wisconsin, as Trustee (annexed hereto as Exhibit "B", incorporated herein by reference, and referred to herein as the "Indenture"); and (c) Project Financing Agreement among the Issuer, the Company and the Purchaser (annexed hereto as Exhibit "C", incorporated herein by re£erence, and re£erred to as the "Agreement"); and -5- � RESOLUTION # 3 WHEREAS, the issuance of the Bonds by the Issuer, the crea- tion of a mortgage and security interest in the Pledged Property, as de£ined in the Revenue Agreement, and the pledge of the Revenue Agreement and its revenues to the Trustee under the Indenture, as herein recited and provided, ir. the judgment of this Council wi11 serve the intended accomplishments and in all respects conform to the provisions and requirements of the Act; and WHEREAS, the Company has made representations to the Issuer (tc be supported by appropriate documentation) that the estimated cost of the Project, togetner with related costs, is an amount which will be at least $3,000,000 and that the useful life of the Pledged Property is estimated to be at least ten (10) years; and WHEREAS, the Company represents and agrees that it will en- ter into the Revenue Agreement with respect to the Project as described above, issue the Note, pay all expenses with respect thereto, and comply with all the terms and provisions of the Note and Revenue Agreement so that full debt service wi11 be provided in order to meet payments of principal of, premium, if any, and interest on the Bonds and the Company agrees that its representa- tions have been expressly relied upon by the Issuer in the adop- tion of this Resolution; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF OSHKOSH, WISCONSIN, THAT: 1. Definitions, The terms "Series 1983 Bonds", "Bond Fund", "Bondholder", "Pledged Property", "Project Fund", "Trust Estate" and "Trustee" shall have the same meanings as defined in the Indenture. The term "Bonds" when used herein shall refer to the Series 1983 Bonds, unless the context otherwise requires. 2. Determination. Based on the representations hereinbe- £ore described, this Council hereby finds and determines that: (a) the estimated cost o£ the Project as more particularly de£ined in the Indenture including all costs in connec- tion therewith permitted to be £inanced with the Bonds under the Act is at least $3,000,000; (b) the useful life of the Pledqed Property is not less than ten (10) years; (c) the loan payments to be made in each year as specified in Section 3.9 of the Revenue Agreement are sufficient to pay the principal of and interest on the Bonds; and (d) no reserve fund need be established in connection with the retirement of the Bonds or maintenance of the Pledged Property. -6- RESOLUTION # 3 3. Issue of Series 1983 Bonds. The Issuer shall issue its Bonds in the amount of Three Million Dollars ($3,000,000) for the purpose of £inancing the Project and other authorized costs. The Bonds shall be sold tc the Purchaser in accordance with the terms and conditions set £orth in the Agreement. The Bonds 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 Bonds as provided in the Indenture are hereby adopted as and £or the details approved by this Issuer. The Bonds shall not be a general obligation or indebtedness o£ the Issuer within the meaning of any state consti- tutional 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 taxina oowers, but shall be payable solely irom the payments and other revenues that may be available therefor £rom the Revenue Agreement and Note or in the event of de£ault thereon as otherwise provided herein or in the Indenture and permitted by law, and in no event shall the Bonds 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 Revenue Agreement and Note. The payments when paid by the Company, pursuant to the Revenue Agree- ment and Note, shall be paid directly to the Trustee for the account o£ the Issuer so long as any of the Bonds shall be out- standing and unpaid. The Bonds shall be executed on behalf of the Issuer by its City Manager and City Clerk or their authorized deputies in their absence, sha11 have its corporate seal im- pressed or imprinted thereon and may be in typewr�tten £orm. Facsimile signatures may be used as permitted by law. 4. Approval and Execution of Documents. Subject to such changes or revisions therein as Ouarles & Brady as Bond Counsel ("Bond Counsel") or Counsel £or the Issuer may approve, the Indenture, Note, Revenue Agreement, and Agreement, in substan- tially their respective forms presented to this meeting and attached hereto, are hereby approved. The City Manager, City Clerk and Director of Finance or any of their authorized deputies i£ necessary, are authorized on behal£ o£ the Issuer to execute and deliver the Indenture, Revenue 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 documents. The City Manager, City Clerk and Director o£ 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, certi£icates, affidavits, and closing or post-closing instruments (including but not limited to amendments of the Indenture and Revenue Agree- ment not requiring the consent of the Bondholders pursuant to Sections 11.01 and 12.01 of the Indenture) as may be required by this resolution or deemed necessary by said o£ficials or by Bond Counsel. The City Manager and Clerk or any of their authorized deputies are further authorized and directed on behalf o£ the -7- RESOLUTION # 3 Zssuer to complete, execute and file with the Internal Revenue Service a statement of the election by the Issuer to issue the Bonds in an aggregate principal amount exceeding $1,000,000 but not exceeding 510,000,000 as provided ir. Section 103(b)(6)(D) of the Internal Revenue Code o£ 1954, as amended. 5. Aopointment of Trustee; Funds; Investment Directions. Valley Bank of Oshkosh, Oshkosh, Wisconsin, is hereby designated as Trustee under the Indenture. There are hereby created by the Issuer and ordered estab- lished with the Trustee the £ollowing trust £unds: (a) The Project Fund as described in Section IV-2 0£ the Indenture to be used solely to pay costs of the Project and such other costs as are provided to be paid there- from in the Indenture. The Issuer hereby authorizes and directs the Trustee (i) to withdraw sufficient funds from said Project Fund to make the aforesaid payments as the same become due and payable, and (ii) to transfer from the Project Fund to the Bond Fund any moneys which are not needed for the purposes for which the Bonds are issued in the manner and at the time provided in the Indenture. (b) The Bond Fund as describe3 in Section IV-1 of the Indenture to be used to pay the principal and interest on the Bonds and such other costs as are provided to be paid therefrom in the Indenture. The Issuer hereby authorizes and directs the Trustee to withdraw suffi- cient funds £rom the Bond Fund to pay the Bonds, premium, if any, and interest thereon as the same become due and payable. The Bondholders shall have a first lien on the payments in connection with the Project required to be paid by the Company for the payment of principal, premium, if any, and�interest on the Bonds under the Revenue Agreement, Note and Indenture. Said payments received under the Revenue Agreement and Note with respect to the Project are hereby irre�.�ecably pledged for the payment of the Bonds and interest thereon. The Issuer authorizes and directs the Trustee to invest and reinvest moneys in the Project Fund and the Bond Fund as set forth in Article 6 of the Indenture. 6. Certain Indenture Provisions and Additional Security. The Bonds and the interest thereon shall be additionally secured by a mortgage and security interest covering the Pledged Property as provided in the Revenue Agreement and Indenture. 7. Certain Provisions o£ the Revenue Agreement. The Reve- nue Agreement provides, inter alia, that: �S� RESOLUTION # 3 (a) The maintenance and repair costs of the Pledged Prop- erty, taxes in connection therewith, and other charges and insurance with respect to the Pledged Property will be taken out, assumed and paid by the Company. The Issuer has no obligation witr respect thereto. The proceeds of any recovery under the foregoing insurance policies shall be used and disposed o£ in the manner provided in the Revenue Agreement and the Indenture. (b) The Company shall make payments pursuant to the Note and kevenue Agreement (directly to the Trustee for deposit in the Bond Fund and £or the account o£ the Issuer) in the amounts suf£icient for payment from the Bond Fund when due o£ the principal of, premium, if any, and interest on the Bonds. 8. Covenants Binding Upon Issuer. All covenants, stipu- lations, obligations and agreements of the Issuer contained in this resolution and in the Bonds, the Revenue Agreement, the Indenture, and the Agreement shall be deemed to be the covenants, stipulations, obligations and agreements o£ the Issuer to the full extent authorized or permitted by law, and such covenants, stipulations, obligations and agreements shall be binding upon the Issuer and its successors £rom time to time and upon any body to which any powers or duties af£ecting such covenants, stipula- tions, obligations and agreements shall be transferred by or in accordance with law. Except as otherwise provided in this reso- lution, 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 Bonds, the Revenue Agreement, the Indenture or 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 per£orm such duties. No covenant, stipulation,�obligation or agreement herein contained or contained in the Bonds, the Revenue 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 of this Council in his or her indi- vidual capacity and neither the members of this Council nor any of£icer executing the Bonds nor any other officer or employee o£ the Issuer shall be liable personally on the Bonds or be subject to any personal liability or accountability for any act or omis- sion related to the authorization or issuance thereof. 9. Persons Responsible for Issuin the Bonds. The City Manager, City Clerk, Director of Finance and their authorized deputies are hereby designated as the officers responsible for issuing the Bonds within the meaning of Section 1.103-13(a)(2) � (ii)(C) of the Income Tax Regulations. 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