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A Resolution Determining the Necessity of and Authorizing the Issuance and Sale of Variable Rate Demand Limited Obligation Revenue Bonds, Series 2010 (Cleveland Gear Company, Inc., Milwaukee Machine Works Division Project) of the City of West Allis, Wisconsin, in an Aggregate Principal Amount not to Exceed $6,000,000; Authorizing the Execution and Delivery of a Loan Agreement in Connection Therewith; Authorizing the Execution and Delivery of a Trust Indenture to Secure Such Series 2010 Bonds; Authorizing Execution of a Tax Regulatory Agreement and a Bond Placement Agreement with Respect to said Series 2010 Bonds; and Authorizing a Private Placement Memorandum and Other Documents in Connection with the Issuance of the Series 2010 Bonds.
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WHEREAS, the City of West Allis, Wisconsin (the "City"), a city and political subdivision in and of the State of Wisconsin (the "State"), is authorized and empowered by virtue of the laws of the State, including without limitation, Section 66.1103 of the Wisconsin Statutes (the "Act"), to, among other things: (i) issue and sell revenue bonds to construct, equip, re-equip, acquire by gift, lease or purchase, install, reconstruct, rebuild, rehabilitate, improve, supplement, replace, maintain, repair, enlarge, extend or remodel industrial projects, which include, without limitation, the facilities comprising the Project (as herein defined); (ii) enter into revenue agreements with eligible participants with respect to the Project whereby eligible participants agree to cause said Project to be constructed and to pay the City an amount of funds sufficient to provide for the prompt payment when due of the principal and interest on said revenue bonds; (iii) mortgage all or part of the Project or assign the revenue agreements in favor of the holders of the Series 2010 Bonds issued for the Project, (iv) finance the Project which is located entirely within the geographic limits of the municipality, (v) secure those revenue bonds by a trust indenture and by the pledge and assignment of the payments paid under a loan agreement and the funds created under a trust indenture; (vi) enact this Resolution; and (vii) enter into the Trust Indenture, the Loan Agreement and the Bond Placement Agreement, all as hereinafter defined, and to execute and deliver certain other documents and instruments upon the terms and conditions provided herein and therein; and
WHEREAS, Cleveland Gear Company, Inc., a Delaware corporation (the "Corporation"), has requested this Common Council of the City of West Allis, Wisconsin (the "Council") to authorize the issuance of Variable Rate Demand Limited Obligation Revenue Bonds, Series 2010 (Cleveland Gear Company, Inc., Milwaukee Machine Works Division Project) of the City of West Allis, Wisconsin (the "Series 2010 Bonds"), for the purpose of, together with other available moneys of the Corporation, (1) financing (i) the purchase and renovation of an approximately 74,000 square-foot manufacturing facility located at 404 South 116th Street, in the City of West Allis, Wisconsin (the "Facility") and (ii) the acquisition and installation of equipment at the Facility (collectively with the purchase and renovation of the Facility, the "Project"), including reimbursement of costs of the Project previously incurred by the Corporation and (2) paying certain costs and expenses of the City and the Corporation incurred in connection with the issuance of the Series 2010 Bonds; and
WHEREAS, this Council adopted an initial resolution regarding the issuance of industrial development revenue bonds to finance the Project on September 2, 2008; and
WHEREAS, this Council has determined that the financing of the Project will promote the right to gainful employment, business opportunities and general welfare of the inhabitants of the City and the State and will preserve and enhance the tax base of the City and the State; and
WHEREAS, this Council has determined to authorize such Series 2010 Bonds and to award the sale thereof to Comerica Securities, Inc.; and
WHEREAS, it is necessary in connection with the issuance of such Series 2010 Bonds and the financing of the Project to provide for the authorization of a Loan Agreement and a Trust Indenture; and
WHEREAS, it is necessary in connection with the issuance of such Series 2010 Bonds to also provide for the authorization of a Bond Placement Agreement and a Tax Regulatory Agreement and the distribution of a Private Placement Memorandum for the Series 2010 Bonds and to authorize certain other documents in connection with the issuance of the Series 2010 Bonds;
NOW, THEREFORE, BE IT RESOLVED by the Common Council of City of West Allis, Wisconsin:
SECTION 1. That for the public purpose of better promoting the right to gainful employment, business opportunities and general welfare of the inhabitants of the City and the State and preserving and enhancing the tax base of the City and the State, this Council, acting on behalf of the City, hereby determines that it is necessary to and the City shall issue revenue bonds pursuant to the Act, in the aggregate principal amount of not to exceed $6,000,000 for the purposes set forth in the preambles hereto. Such bonds shall be designated "City of West Allis, Wisconsin, Variable Rate Demand Limited Obligation Revenue Bonds, Series 2010 (Cleveland Gear Company, Inc., Milwaukee Machine Works Division Project)". The Series 2010 Bonds shall be issued in the form and denomination and shall be executed, dated, be subject to redemption prior to maturity on the dates and at the prices, bear interest at a rate not to exceed twelve percent (12.00%) per annum, and be payable on the dates, all as exactly provided in the Trust Indenture and Bond Placement Agreement hereinafter authorized. The Series 2010 Bonds shall be retired either at stated maturity or by mandatory sinking fund redemption over a period not to exceed 35 years as set forth in the Bond Placement Agreement and the Trust Indenture hereinafter authorized. The City hereby determines that the amount necessary to pay principal and interest on the Series 2010 Bonds in each year shall be determined pursuant to the terms of the Trust Indenture and that the formula set forth in the Trust Indenture to determine those payments is sufficient to provide for the payment of principal and interest on the Series 2010 Bonds. The City further determines that no moneys are necessary or required to be paid each year into any reserve fund in connection with the retirement of the Series 2010 Bonds or the maintenance of the Project; the Loan Agreement provides that the Corporation shall provide for the maintenance of the Project in good repair and shall keep it properly insured.
SECTION 2. That the Series 2010 Bonds shall be payable at the designated corporate trust office of U.S. Bank National Association, a national banking association, or any successor trustee (the "Trustee").
SECTION 3. Anything in this Resolution, the Series 2010 Bonds and the Trust Indenture to the contrary, the Series 2010 Bonds are limited obligations of the City. The principal of and interest on the Series 2010 Bonds are payable solely out of the revenues derived under the Loan Agreement and the Security (as defined in the Trust Indenture). The Series 2010 Bonds are not an indebtedness of the City, within the meaning of any State constitutional provision or statutory limitation. The Series 2010 Bonds are not a charge against the City's general credit or taxing powers or a pecuniary liability of the City under the Act. The Series 2010 Bonds shall contain a statement to that effect and that the right to such payment is solely limited to the revenues and special funds pledged for such purpose under the Loan Agreement and the Trust Indenture authorized herein.
SECTION 4. That Mayor and the City Administrative Officer and Clerk/Treasurer (collectively, the "Authorized Signers") be and they are hereby authorized and directed to execute, on behalf of the City, a Trust Indenture with the aforesaid Trustee, in substantially the form presented to this Council and on file with the City Administrative Officer and Clerk/Treasurer, and the Security as therein defined shall be pledged and the other agreements, covenants and promises therein made on behalf of the City shall be conclusively binding upon the City and in full force and effect from and after delivery of the aforesaid Series 2010 Bonds to their purchasers pursuant to the terms of said Trust Indenture. Said Trust Indenture shall be subject to such changes, insertions and omissions which are consistent with this Resolution and are not adverse to the City and as are permitted by the Act and as may be approved by the Authorized Signers who execute the Trust Indenture, which approval shall be conclusively evidenced by the execution of said Trust Indenture as aforesaid.
SECTION 5. That the Authorized Signers be and they are hereby authorized and directed to do all the acts and things required of them by the provisions of the Series 2010 Bonds and the Trust Indenture to the end that full and complete performance of all of the terms, covenants and agreements of the Series 2010 Bonds and Trust Indenture shall be effected, including taking all actions necessary to complete the sale of the Series 2010 Bonds under the "Blue Sky" laws of any jurisdiction; provided that the City shall not be required to submit to service of process in connection with any such "Blue Sky" action in any state except Wisconsin.
SECTION 6. That this Council hereby determines that the financing of the Project is undertaken for and will serve the public purpose of promoting the right to gainful employment, business opportunities and general welfare of the inhabitants of the City and the State and preserving and enhancing the tax base of the City and the State.
SECTION 7. That the Authorized Signers be and they are hereby authorized and directed to execute and enter into, on behalf of the City, a Loan Agreement (the "Loan Agreement") with the Corporation, whereby the City will loan the proceeds of the Series 2010 Bonds to the Corporation and the Corporation agrees to repay those proceeds. In order to induce the City to enter into the Loan Agreement, the Corporation must, at least thirty days prior to the execution of the Loan Agreement, give notice of its intent to enter into the Loan Agreement to the State department of commerce and to any collective bargaining agent in the State with whom the Corporation has a collective bargaining agreement. Pursuant to the Loan Agreement, the Corporation will covenant to (i) provide for the maintenance of the Project and carry all proper insurance with respect to the Project, (ii) submit to the State department of commerce within twelve months after the Project is completed or two years after the Series 2010 Bonds are issued to finance the Project, whichever is sooner, the net number of jobs eliminated, created or maintained on the Project site and elsewhere in the State as a result of the Project, (iii) notify the State department of workforce development and the local workforce development board of any position to be filled in the City of West Allis within one year after the issuance of the Series 2010 Bonds and (iv) if the Corporation employs individuals in this State at a site other than the Project site, the Corporation must provide the certifications required pursuant to subsection (4s)(b) of the Act. The Loan Agreement shall be substantially in the form presented to this Council and on file with the Clerk, subject to such changes, insertions and omissions which are consistent with this Resolution and are not adverse to the City and as are permitted by the Act and as may be approved by the Authorized Signers who execute the Loan Agreement, which approval shall be conclusively evidenced by the execution of said Loan Agreement as aforesaid. It is hereby determined that the Loan Agreement will promote the public purpose stated in the Act and the City will be duly benefited thereby.
SECTION 8. That the Authorized Signers are each hereby authorized and directed to execute and deliver, on behalf of the City, a Bond Placement Agreement among the City, Comerica Securities, Inc. and the Corporation (the "Bond Placement Agreement"), providing for the sale of the Series 2010 Bonds substantially in the form heretofore presented to this Council by Comerica Securities, Inc., so long as the terms of purchase contained therein are within the guidelines established in Section 1 of this Resolution. Such Bond Placement Agreement shall set forth the placement fee, principal amount, maturities and interest rate or rates on the Series 2010 Bonds, and the execution and delivery of the Bond Placement Agreement by such Authorized Signers shall be conclusive evidence of the authorization by this Council of such placement fee, principal amount, maturities, any mandatory sinking fund redemption provisions and interest rate or rates on the Series 2010 Bonds.
SECTION 9. That the Authorized Signers be and are hereby authorized to execute and deliver, on behalf of the City, the Tax Regulatory Agreement (the "Tax Regulatory Agreement"). The Tax Regulatory Agreement shall be substantially in the form presented and on file with the City Administrative Officer and the Clerk/Treasurer, subject to changes, insertions and omissions as may be approved by this Council, which approval shall be conclusively evidenced by the execution of said Tax Regulatory Agreement.
SECTION 10. That the distribution of the Private Placement Memorandum in connection with the offering and sale of the Series 2010 Bonds is hereby authorized and approved.
SECTION 11. That the appropriate officers of the City be and they hereby are authorized to execute and deliver, on behalf of the City, such other certificates, documents and instruments in connection with the issuance and public sale of the Series 2010 Bonds and the financing of the Project as may be required, necessary or appropriate, including, without limitation, any documents which are necessary or appropriate in order to ensure compliance of the Series 2010 Bonds with the Internal Revenue Code and including conveyances of title to real and personal property, terminations of financing statements and other releases of security interests in property. Such documents including the ones specifically authorized hereby, shall be subject to such changes, insertions and omissions as may be approved by this Council, which approval shall be conclusively evidenced by the execution thereof by the proper officers of the City.
SECTION 12. That this Council, as the "applicable elected representative" of the City for purposes of Section 147(f) of the Internal Revenue Code of 1986, as amended, hereby approves the issuance of the Series 2010 Bonds in the maximum principal amount of $6,000,000. A portion of the proceeds will be used to finance the Project. The initial owner, operator or manager of the Project is presently anticipated to be the Corporation.
SECTION 13. That it is found and determined that all formal actions of this Council concerning and relating to the adoption of this Resolution were adopted in an open meeting of this Council, and that all deliberations of this Council and of any of its committees that resulted in such formal action, were in meetings open to the public, in compliance with the law, including Section 19.83 of the Wisconsin Statutes and the rules of this Council in accordance therewith.
SECTION 14. That all resolutions or parts thereof in conflict with the provisions of this Resolution are, to the extent of such conflict, hereby repealed.
DEV-R-588-4-6-10