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HomeMy WebLinkAbout30234 / 79-08Jul�� 5, 1979 # g RESOLUTION RESOLUTION AUTHORIZING CITY OF OSHKOSH, WSNI�E3AG0 COtJNZy, WISQ�NSIN INDUSTRIAL DEVES,OPMENT REVEN[T� BONDS ('PCY✓dER WEST II�PPEE2PRISES PRQTECP) , SERIES 19-9 (mc� SOPti) Fina1 Resolution to issue nOt to e�ce� $670,000. Industrial Develo�nt Revenue Boncls for the purpose of fir,ancing cos'-s of, arrong other things, constructing and egaipping a racquetball £acility on land in the City of Oshkosh. S;1�MIPT;?�D flY . o � - 8 - RESOLUTION AUTHORIZING CITY OF OSHKOSH, WINNEBAGO COUNTY, WISCONSIN INDUSTRIAL DEVELOPMENT REVENUE BONDS (TOWER WEST ENTERPRISES PROJECT) SERIES 1979 ( TI3E "BOND" ) WHEREAS, in a resolution adopted May 17, 1979 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 Tower West Enterprises, a Wisconsin general partnership of which Jerry E. Daun, Thomas P. Kelly, Thomas D. Ganther and Kermit G. Weiske (the "Guarantors") are presently all of the partners (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 $670,000 for the purpose of financing costs of, among other things, constructing and equipping a racquetball facility on land in the City (which facility and financed equipment and related improvements are referred to herein as the "Project") to be initially used by the Company as a recreational facility and for related service activities; and wHEREAS, in reliance upon such resolution, the Company has commenced the Project, has entered into negotiations with an initial purchaser (the "Purchaser") for its purchase of the single fully registered Bond to be so issued and caused to be prepared and herewith submitted to this City Council forms of 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 (the "Revenue Agreement" and "Note", respectively); and (b) Indenture of sin National Trustee (the Trust between the Issuer and First Wiscon- Bank of Oshkosh, Oshkosh, Wisconsin, as "Indenture"); and (c) Project Financing Agreement among the Issuer, the Company and the Purchaser (the "Agreement"); and WHEREAS, there have been presented to and received by this Council drafts of the Revenue Agreement and Note, Indenture and Agreement; and WHEREAS, the issuance of the Bond by the Issuer, the crea- tion of a mortgage and security interest in the Pledged Property and the pledge of the Revenue Agreement and its revenues to the Trustee under the Indenture, as herein recited and provided, in the judgment of this Council, will serve the intended accomplish- ments and in all respects conform 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 construction and equipping of the Project, together with related costs, is an amount which will be at least $650,000 and that the useful life of the Project and Pledged Property is esti- mated to be at least 15-1/2 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 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 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 OSHKOSA, WISCONSIN, THAT: 1. Definitions. The terms "Series 1979 Bonds", "Bond Fund", "Bondholder", "Pledged Property", "Project Fund", "Trust Estate" and "Trustee" shall have the same meanings as defined in the Indenture. The term "Bond" when used herein shall refer to the Series 1979 Bonds, unless the context otherwise requires. 2. Determination. 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 $650,000; (b) the useful life of the Project and Pledged Property is not less than fifteen and one-half (15-1/2) 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 Bond; and (d) no reserve fund need be established in connection with the retirement of the Bond or maintenance of the Project or Pledged Property. -2- 3. Issue of Series 1979 Bonds. The Issuer shall issue its Bond in the amount of Six Hundred Fifty Thousand Dollars ($650,000) for the purpose of financing the Project and other authorized costs. 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 £orm, 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 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 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 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, shall be paid directly to the Trustee for the account of the Issuer so long as the Bond shall be outstanding and unpaid. The Bond shall be executed on behalf of the Issuer by its City Manager and its City Clerk or their authorized deputies in their absence and 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, Revenue Agreement, and Agreement, in substan- tially their respective forms presented to this meeting are hereby approved. The City Manager, City Comptroller or an officer empowered to sign on his behalf and the City Clerk, or any of their authorized deputies if necessary, are authorized on behal£ of the Issuer to execute and deliver the Indenture, Revenue Agreement, and Agreement, 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, City Comptroller or an officer empowered to sign on his behalf 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, file and deliver, as appropri- ate, all such documents, financing statements, opinions, certifi- cates, affidavits, and closing or post-closing instruments (in- cluding but not limited to amendments of the Indenture and Revenue Agreement 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 officials or by Bond Counsel. -3- S. Appointment of Trustee; Funds; Investment Directions. First Wisconsin National Bank o£ 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 funds: (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 trans£er from the Project Fund to the Bond Fund any moneys which are not reeded for the purposes for which the Bond is issued in the manner and at the time provided in the Indenture. (b) The Bond Fund as described in Section IV-1 of the Indenture to be used to pay the principal and interest on the Bond is 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 from the Bond Fund to pay the Bond, 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 Bond under the Revenue Agreement, Note and Indenture. Said payments received under the Revenue Agreement and Note with respect to the Project are hereby irrevocably pledged for the payment of the Bond 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 and by a Guaranty by the Guarantors jointly and severally of the principal, premium, i£ any, and interest on the Bond up to an aggregate maximum of $400,000. 7. Certain Provisions of the Revenue Agreement. The Reve- nue Agreement provides, inter alia, that: (a) The maintenance and repair costs of the Project and Pledged Property, taxes in connection therewith, and other charges and insurance with respect to the Project and Pledged Property 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 £oregoing 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 Revenue Agreement (directly to the Trustee for deposit in the Bond Fund and for the account of the Issuer) in the amounts sufficient for payment from the Bond Fund when due of the principal of, premium, if any, and interest on the Bond. 8. Covenants Binding Upon Issuer. All covenants, stipu- lations, obligations and agreements of the Issuer contained in this resolution and in the Bond, the Revenue Agreement, the Indenture, and the Agreement shall be deemed to be the covenants, stipulations, obligations and agreements of 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 from time to time and upon any body to which any powers or duties affecting such covenants, stipula- tions, obligations and agreements shall be transferred by or in accordance with law. Except as otherwise provided in this reso- lution, all 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 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 perform such duties. No covenant, stipulation, obligation or agreement herein contained or contained in the Bond, the Revenue Agreement, the Indenture or the Agreement shall be deemeed 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 officer executing the Bond shall be liable personally on the Bond or be subject to any personal liability or accountability by reason of the issuance thereof. 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